N.K. Jain, J.
1. This is plaintiffs appeal under Section 96 of the Code of Civil Procedure, directed against the judgment and decree passed on 30th April, 1991 by the XI Addl. Judge to the Court of District Judge, Indore in Civil Suit No. 143-A/89, dismissing appellant's suit for declaration and recovery of arrears of pay etc.
2. Appellant/plaintiff Nemichand has died during the pendency of this appeal and is now represented by his LRs Smt. Sushilarani and four others. Late Nemichand was an employee of the M.P. Financial Corporation, Indore. He was appointed on 25th June, 1960. A regular departmental enquiry was initiated against him vide memo No. 271/C/68-69, dated 3-6-68 on certain charges. The departmental enquiry was conducted by one S.K. Pandit, Secretary of the defendant Corporation. The Enquiry Officer vide his report dated 7-9-1968 held the plaintiff guilty of the charges. On receipt of the said report the disciplinary authority, i.e., the Managing Director of the defendant Corporation served the plaintiff with a show-cause notice dated 10-9-68, calling upon him as to why the report be not accepted and the penalty of dismissal be not imposed on him. The plaintiff submitted his reply on 11-10-68. The disciplinary authority by a detailed order dated 26-11-68 purporting to act under Regulation No. 40 of the M.P. Financial Corporation (Staff) Regulations, 1958 (for short 'the Regulations') imposed major penally of dismissal on the plaintiff making the order effective on the date of service thereof on the plaintiff. Departmental appeal preferred against this order of dismissal, was also dismissed by the Board of Directors of the defendant Corporation.
3. Late plaintiff Nemichand challenged the aforesaid order of dismissal before this Court by filing a petition (M.P. No. 61/69) under Art. 226/227 of the Constitution of India. The petition was opposed by the defendant Corporation. A Division Bench of this Court vide order dated 3-11-72 dismissed the petition upholding the order of dismissal passed against the plaintiff. S.L.P. filed by the plaintiff against the order of the High Court was also dismissed by the Supreme Court in limine on 15-11-73.
4. The plaintiff, thereafter filed civil suit in the Court below challenging the order of his dismissal mainly on the grounds that the enquiry againsthim was contrary to the provisions of the Regulation No. 40 and that the impugned order has been passed on account of malice against the plaintiff. It was further averred that the appeal preferred by him against his dismissal was not also heard properly.
5. Defendant filed written statement in oppugnation of the plaint allegations and also set up plea of bar by res judicata. The Court below framed various issues including the one regarding bar of suit by res judicata. The issue regarding res judicata as also several other issues regarding the validity of the enquiry proceedings and the order of dismissal were decided against the plaintiff. With those findings the suit of the plaintiff was dismissed but without any order as to cost which the parties were left to bear their own as incurred.
6. The plaintiff appellant has assailed the impugned judgment and decree as contrary to law and facts. It is contended that the Court below erred in holding that the suit of the plaintiff was barred by res judicata. He also assailed the other findings recorded against him and it was contended that in deciding those issues against the appellant, the Court below was guided not by the merits of the case but mainly by the reasoning given by the High Court in dismissing his petition.
7. We have heard Shri Puntambekar and Smt. Meena Chaphekar, learned Counsel appearing for the LRs of the deceased appellant and Shri Shekhar Bhargava, learned Senior counsel appearing with Shri Patwa, for the respondent-Corporation.
8. The first and foremost question requiring determination in this appeal is whether the decision in the writ petition (M.P. No. 61/69) of the High Court operates as res judicata and barred the subsequent suit filed by the plaintiff/appellant.
9. In both the proceedings the dismissal of the plaintiff was under challenge and the grounds were also alike, i.e., to say: (i) whether the enquiry and the proceedings followed during the course of that inquiry and subsequent thereto were in contravention of the provisions contained in Regulation No. 40 of the Regulations, and (ii) whether the action taken against the petitioner was a result of prejudice and, therefore, could be said to be malafide exercise of power. Before the High Court, the impugned action of the respondent employer was also sought to be impugned on the anvil of Article 311 of the Constitution and it was contended that the provisions of Article 311 would be attracted in the case of employees of the respondent-Corporation created under a statute (The State Financial Corporation Act). Although the Division Bench of this Court was of the view that Article 311 was not attracted and so the petition under Article 226 was not maintainable, nevertheless, the Division Bench proceeded to consider the other questions raised in the petition on merits andanswered them all against the plaintiff. It will be thus seen that the matter directly and substantially in issue in the present suit had been directly and substantially in issue in the former writ petition before this Court, Needless to add that a decision in earlier writ petition on merits operates as res judicata between the same parties in a subsequent regular suit. The law on the point is made luculent by the Supreme Court in Gulabchand, AIR 1965 SC 1153, in following terms:--
'The provisions of Section 11, CPC are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide, it will operate as res judicata, in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. The nature of the former proceeding is immaterial. There is no good reason to preclude such decisions on matters in controversy in writ proceedings under Article 226 or 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest. Consequently on the general principle of res judicata the decision of the High Court on a writ petition under Article 226 on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter.'
In a subsequent decision in Nanak Singh, AIR 1968 SC 1370, the Apex Court reiterated :
'Provisions of Section 11, CPC, are not exclusive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit, and on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly should be competent to decide the subsequent suit or that the former proceeding andthe subsequent suit should have the same subject matter. There is no good reason to preclude such decisions on matters in controversy in writ proceedings under Article 226 or Article 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest.'
10. Shri Puntambekar and Smt. Chaphekar, learned Counsel for the LRs of the deceased plaintiff have, however, contended that the High Court having held that the petition was not maintainable any finding recorded or observation made on merits of the case by the High Court, were of no consequence and the findings so recorded would not operate as res judicata within the meaning of Section 11, CPC. Both the learned Counsel were at pains to explain that the decision in the earlier writ petition was without jurisdiction and thus ruled out the operation of Section 11, CPC. Reliance was placed on Ram Kissendas, AIR 1950 PC 81 and Pandurang, AIR 1981 SC 2228.
We are not persuaded by the argument which is rather fallacious. It is wholly incorrect to say that the High Court had no jurisdiction to decide the former writ or as a matter of that the present suit. In fact the High Court can withdraw any suit, appeal or other proceeding pending in any Court subordinate to it and itself try and dispose of the same [See Section 24, CPC]. A writ under Article 226 of the Constitution can be heard and decided only by the High Court.
11. It is true that the Division Bench of the High Court while deciding the plaintiff's writ petition did record a finding that a writ as filed was not maintainable, but that did not mean that the High Court had no jurisdiction to decide the writ or the subject-matter in issue which is same in both the proceedings. A perusal of the order dated 3-11-72 of the High Court (vide Ex. P-91) would show that the aforesaid finding regarding maintainability of the plaintiff's action was recorded in the context of Article 311 of the Constitution. The legal position, as it obtained then and in the light of the decisions in Sukhdeo, AIR 1971 SC 1828 and S.R. Tiwari, AIR 1964 SC 1680, it was held that the respondent-Corporation was not 'State' within the meaning of Article 12 of the Constitution and as such the provisions of Article 311 would not be attracted and no writ can be issued against the respondent-Corporation under Art. 226 of the Constitution. Nevertheless the High Court was competent and did examine the other issues raised by the plaintiffs and answered them on merits. As already pointed out the High Court did have jurisdiction to entertain the said petition as also the present suit. The findings recorded by the High Court in the previous writ petition cannot be termed as without jurisdiction.The ratio in the two decisions, i.e., Ram Kissendas and Pandurang (supra) cited on behalf of the appellant/plaintiff was not available to the appellant in the present case. In both these decisions it was held that a decision rendered without jurisdiction would not operate as res judicata but this is not the position in the instant case inasmuch as the decision rendered in the former writ petition was not without jurisdiction.
12. From the foregoing discussion it, therefore, inevitably follows that the decision in the former writ petition (M.P. No. 61/69) of the High Court operates as res judicata in the present suit filed by the appellant. The suit has been rightly dismissed by the Court below and no interference is, therefore, called for by this Court in appeal.
13. This appeal, thus, fails and is dismissed. However, in the facts and circumstances of the case, the parties are left to bear their own costs as incurred throughout. A decree be drawn up accordingly.