Shanti Devi vs Punjab State and Another

V.K. Jhanji, J.—This is plaintiffs second appeal directed against the judgment and decree of the Courts below whereby her suit for declaration has been dismissed.

Plaintiff filed suit for declaration to the effect that resolution dated 27.10.1976 passed by the Panchayat Samiti, Dhariwal, District Gurdaspur vide which services of plaintiff were terminated w.e.f. 30.11.1976 is illegal, male-fide, unconstitutional against the rules, and principles of natural justice and that plaintiff is not bound by the said resolution and continues to be in service of Panchayat Samiti, Dhariwal. Initially, plaintiff was in service of District Board, Gurdaspur, and the year 1962, on abolition of Punjab District Board Act, services of the plaintiff were absorbed by the Panchayat Samiti. However, vide resolution dated 27.10.1976, Ex.-D2, services of the plaintiff were terminated. Plaintiff filed suit for declaration to the effect that resolution dated 27.10.1976 passed by the Panchayat Samiti is illegal as no show-cause notice was given to her, nor she was heard before the order came to be passed against her. On contest by the Panchayat Samiti, trial Court dismissed the suit and on appeal by the plaintiff, judgment and decree of the trial Court has been affirmed by the trial Court. Hence, the second appeal by the plaintiff.

The first appellate Court though held that order terminating the services of plaintiff is violative of Section 34 of the Punjab panchayat Samiti and Zila Parishad Act, 1961, and against the principles of natural justice, but dismissed the suit by saying that the suit is barred by principles of res-judicata as the writ petition filed by the plaintiff had been dismissed.

It is contended by the counsel on behalf of plaintiff that order passed on the writ petition would not operate as res-judicata as the writ petition was dismissed in limine. It is the admitted case of the parties that plaintiff was a permanent employee of the District Board and on absorption, she became permanent employee of the Panchayat Samiti. It is further not in dispute that no opportunity to show-cause was given to her before her service came to be terminated vide resolution dated 27.10.1976. The first appellate Court has rightly referred to Section 34 of the 1961 Act ibid to hold that plaintiffs service could not have been terminated until she was heard in regard to the action proposed to be taken against her.

The only question thus, arises for consideration in this appeal is whether dismissal of the writ petition would operate as res-judicata. The answer is in the negative. In the instant case, the writ petition was not dismissed by a speaking order, but was dismissed by two words, i.e. Heard. Dismissed. Their Lordships of the Supreme Court in Ram Parkash Sharma Vs. State of Haryana, , considered this principle and observed at pages 1287 and 1288 :

" But the technical rule of res-judicata although a wholesome rule based upon public policy, cannot be stretched too far to bar the trial of identical issues in a separate proceeding merely on an uncertain assumption that the issues must have been decided. It is not safe to extend the principle of res-judicatta to such an extent so as to found it on mere guess work. To illustrate our view point, we may take an example. Suppose a writ petition is filed in a High Court for grant of a writ of certiorari to challenge some order or decision on several grounds. If the writ petition is dismissed after contest by a speaking order obviously it will operate as res judicata in any other proceedings, such as, of suit. Article 32 or Article 136, directed from the same order or decision. If the writ petition is dismissed by a speaking order either at the threshold or after contest, say, only on the ground of laches or the availability of an alternative remedy, then another remedy open in law either by way of suit or any other proceedings obviously will not be barred on the principle of res judicata."

In Pujari Bai Vs. Madan Gopal, , the above-quoted principle was reiterated by their Lordships of the Supreme Court and it was held that when a writ petition is disposed of on merits by speaking order, the question decided in that writ petition would operated as res-judicata, but not a dismissal in limine or dismissal on the ground of laches or availability of alternative remedy. As noticed earlier, the writ petition filed by the petitioner was dismissed in limine by a non-speaking order and so, it cannot be said that decision given in the writ petition was on merits or would operate as res-judicata in a suit filed to challenge order terminating the services of the plaintiff. In the light of judgments referred to above, the finding of the Courts below that dismissal of writ petition in limine by a non-speaking order would create a bar of resjudicata, cannot be sustained and therefore, the finding in this regard is set aside.

Consequently, the appeal is allowed, judgment and decree of the Courts below is set aside and as a consequence thereof, suit of the plaintiff is decreed with no order as to costs.