S.J. Mokhopadhaya, J.
1. The petitioners, who were Senior Rakshaks (Senior Constables)/Rakshaks (Constables), having been found involved in theft were removed w.e.f. 1st December, 1981 vide order dated 27th November, 1981, issued by Assistant Security Officer, Railway Protection Force, Eastern Railway, Dhanbad (for short RPF) under the Rule 47 of RPF Rules, 1956. They challenged the orders of removal, all dated 27th November, 1981 before the Calcutta High Court in Civil Order No. 15157 (W) of 1981, which wad dismissed by the, learned Single Judge vide judgment dated 27th May, 1982. The appeals being F.M.A.T. Nos. 1570 and 1574 of 1982 preferred by petitioners were also dismissed by a Division Bench of the Calcutta High Court on 20th June 1984. The Supreme Court also upheld the Judgment in SLP (Civil) Nos. 8224-9020 of 1984 vide its order dated 6th December, 1985 with the following observation :
'The question involved in these petitions are covered by decision of this Court reported in Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416.The Special Leave Petitions are therefore dismissed. If so advised, it will be open to the petitioners to prefer departmental appeal and apply for condonation of delay, if any and the authorities concerned will consider it and dispose it of in accordance with law.'
After the order of the Supreme Court, the appeals preferred by petitioners were rejected by the appellate authority vide similar orders all dated 31st January, 1986 ]30th June 1986 in CWJC'No. 10281/93 (P) and CWJC No. 10408/93 (P)].
2. The petitioner, Shiva Shankar Singh of CWJC No. 11253/2000 (P), in fact, sat tight over the matter after the judgment of the Supreme Court and did not choose to prefer any appeal.
After the appellate order dated 31st January, 1986, the petitioner, Brahmdeo Ojha of CWJC No. 9797/93 (P) and petitioner, Madhusudan Singh of CWJC No. 11956/93 (P) did not choose to move before the revisional authority.
Pettioners, Kashi Nath Pandey of CWJC No. 11143/93 (P), Ram Prasad Ram, EX - R.K. of CWJC No. 11145/93 (P) filed mercy petitions which were rejected on 24th August, 1989.
The revision application preferred by petitioner, Kashi Nath Sah of CWJC No. 10281/93 (P), Girija Nandan Sharma of CWJC No. 10408/93 (P), Kashi Nath Pandey of CWJC No. 11143/93(P), Ram Prasad Ram. Ex-R.K. of CWJC No. 11145/93 (P) were rejected by similar order dated 2nd September, 1993.
3. In the present petitions, the petitioners have again challenged their orders of removal dated 27th November, 1981 which were upheld by Calcutta High Court and Supreme Court, while they challenged the respective appellate orders dated 31st January, 1986 and revisional orders dated 2nd September, 1993.
The question that arises for determination is as to whether the order and Judgment dated 27th May, 1982 passed by the Calcutta High Court in Civil Order No. 15157 (W) of 1981 upholding the dismissal orders of petitioners dated 27th November, 1981, as was also confirmed by a Division Bench of the Calcutta High Court and the Supreme Court operates as res judicata in the present cases or not.
4. Before deciding, the issue, it is desirable to notice certain facts as highlighted by petitioners in these writ petitions.
One Birendra Prasad Yadav, Rakshak (Constable), who also removed along with the petitioners vide order dated 27th November, 1981 under Rule 47 of RPF Rules, for the same allegation, also challenged the order of removal before the Calcutta High Court along with petitioners in Civil Order No. 15157 (W) of 1981, which was dismissed on 27th may, 1982. He (Sri Birendra Prasad Yadav) also joined hands with these petitioners and some others to prefer appeals before the Division Bench of the Calcutta High Court being FMAT Nos. 1510/1574 of 1982, which were dismissed on 20th June, 1984. He (Sri Birendra Prasad Yadav) also moved before the Supreme Court along with these petitioners and some others in SLP (Civil) No. 8224-9020 of 1984 which was dismissed on 6th December, 1985 with liberty to prefer appeal, as quoted above.
Therefore, the petitioners, claim to be similarly placed like Sri Birendra Prasad Yadav, Rakshak (Constable).
In spite of the fact that the order of removal dated 27th November, 1981 was upheld upto Supreme Court, after rejection of his appeal arid revision application, Sri Birendra Prasad Yadav filed a fresh writ petition before the Patna High Court, CWJC No. 4617 of 1991. In the said case, a Division Bench of Patna High Court vide order dated 27th July, 1992, while observing that the facts invoked in the case of Birendra Prasad Yadav was almost similar to the facts as noticed by the Supreme Court in Chief Security Officer v. Singasan Rabi Das, AIR 1991 SC 1043, remitted the matter to the revisionalauthority for a fresh decision, in accordance with law with the following observations :
'Heard counsel for the petitioner, Union of India and the respondent-Railway.
The petitioner has been dismissed from service without enquiry in terms of Clause (b) of second proviso to Article 311(2) of the Constitution of India which empowers the authority to dismiss or remove a person or to reduce in rank if it is satisfied that for some reason to be recorded in writing, it is not reasonably practicable to hold enquiry. The reasons given by the disciplinary authority for dispensing with the enquiry have been set out in the revisional order passed by the Additional Chief Security Commissioner/RPF/Eastern Railway, true copy whereof has been marked Annexure-8 to the supplementary affidavit filed by the petitioner. It runs as follows :
'During my personal enquiry through different sources, it could be established that the abovenamed RPF staff are by nature the hardcore criminals, affluent enough to install all sorts of pressure, threats and influences on witnesses through different sources for tempering the evidences and gain them over by any hook or crook, so that none can dare to come forward either to depose or divulge their exact misdeeds and character.' Counsel for the petitioner submitted that this case is covered by the decision of the Supreme Court in Chief Security Officer v. Singasan Rabi Das, AIR 1991 SC 1043. In that case, the enquiry was dispensed with on the ground :
'Because of the facts that it is not considered forcible or desirable to procure the witnesses of the security/ other railway employees since this will expose them and make them ineffective for future. These witnesses if asked to appear at a confronted enquiry are likely to suffer personal humiliation and insults thereafter or even they and their family members may become targets of acts of violence.' The Apex Court held that the reasons given for dispensing with the enquiry are beyond the scope of Clause (b) of second proviso to Article 311(2).
In view of the similarity of the facts involved in the instant case, we are left with no option but to remit the matter to the Revisional Authority for passing a fresh order in accordance with law. While considering the matter, the Authority will take into account the aforesaid judgments of the Supreme Court and pass necessary orders within three months from the date of receipt/ production of a copy of this order.
It will be open to the petitioner to file a supplementary memorandum enclosing a copy of the instant order,
This application is, accordingly, disposed of in terms of the aforesaid observation.'
Thereafter it appears that the revisional authority got the matter enquired in respect of Birendra Prasad Yadav and having found him 'not guilty' for the charges framed against him, reinstated him in March, 1993.
In the aforesaid background, all the writ petitions, except one have been preferred by petitioners in 1993 with one of the grounds that the petitioners should be treated equally like Birendra Prasad Yadav and should be granted same relief in view of the similarity of the allegation and facts involved in their case.
Plea has been taken to remit the case to the revisional authority as was remitted by the Patna High Court in the case of Birendra Prasad Yadav, CWJC No. 4617 of 1991 vide its order dated 27th July, 1992.
5. Mr. K.K. Jha 'Kamal', learned counsel for the petitioner, Girija Nandan Sharma of CWJC No. 10408/93 (P) and Ram Prasad Ram EX-R.K. of CWJC No. 11145/ 93{P) submitted that the present reference to larger Bench is wrong, the DivisionBench having not doubted the judgment passed by the other Division Bench in the case of Birendra Prasad Yadav. But such submission fit to be rejected, in view of observation of Division Bench made in these cases on 16th January, 1998, as quoted hereunder :
'We may only notice at this stage that so far as Birendra Prasad Yadav, the petitioner in the aforesaid writ petition is concerned, he is not one of the writ petitioners before us. On facts his case was found distinguishable and he has been granted relief departmentally. He has therefore not preferred any writ petition before us. This, however, would not make any difference in principle because it is submitted that a Division Bench of this Court has entertained a plea on the merit of the impugned order dated 27.11.1981. We may only observe that it does not appear from the order of the Division Bench that it took notice of the fact that the same order was challenged before the Calcutta High Court by filing a writ petition which was dismissed and against which Appeals had also been dismissed and that ultimately Special Leave Petitions filed before the Supreme Court were also dismissed.
It is submitted before us that in the writ petition filed by Birendra Prasad Yadav the facts relating to filing of writ petition and its dismissal etc. were stated. It may be that the pointed notice of the learned Judges was not drawn to those facts. Even so, having regard to the principle of comity of Courts and in the interest of consistency in Judgments, we do not consider it proper to take a different view in the writ petitions before us. We are of the opinion that the matter should be considered by a larger Bench.
Accordingly we direct that the records of the writ petitions be placed before the Hon'ble Chief Justice for appropriate directions for the hearing and disposal of the writ petitions by a larger Bench.'
6. The doctrine of res judicata is well settled. Section 11 of the Code of Civil Procedure which enacts the general rule of res judicata, in so far as it is relevant, provides :
'No Court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between, the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.'
The question whether the decision in a writ petition operates as res judicata in a subsequent suit filed on the same cause of action has been settled by the Supreme Court in Union of India v. Nanak Singh, AIR 1968 SC 1317. The Supreme Court held that the decision in between the parties in the writ petition operates as res judicata in subsequent suit on same matter.
A decision of competent Court on a matter in issue is res judicata in another proceeding between the same parties : 'The matter in issue' may be an issue on fact, an issue of law, or one of the mixed law and facts. An issue of fact or an issue of mixed law and fact decided by a competent Court stands finally determined between the parties and cannot be reopened between them in another proceeding.
'The matter in issue' between the parties is the right claim by one party and denied by the other. Once 'the matter in issue' stands decided and reached finality cannot be reagitated, thereafter.
The meaning of 'res ad judicata' as defined in Encyclopedic Law Dictionary, the Law Lexicon, 1997 Edition of P. Ramanatha Aiyar means that 'if an action be brought, and the merits of the question be discussed between the parties, and a final judgment be obtained by either party, the parties are concluded, and cannot agitate the same question in any other action. It is founded upon two maxim of the law, one of which is that a man should not be twice vexed for the same cause and the other that it is for the public good that there be an end of litigation.'
Between the petitioners and the respondents, the issues (a) whether the order of removal dated 27th November, 1981 is illegal or not; (b) whether the reasons recorded on the removal order dated 27th November 1981 is ex Jade unreasonable that no reasonable man could have acted upon the facts which have recorded, and (c) whether the action of the respondents removing the petitioner under Rule 47 of RPF Rules based on a secret enquiry without giving opportunity to petitioners is just and proper or not were decided by the Calcutta High Court vide order dated 27th May, 1982 in Civil Order No. 15157 (W) of 1981 which was affirmed by the Division Bench of the Calcutta High Court and the Supreme Court. In this background, the aforesaid issues cannot be reagitated by the petitioners before any Court of law of any competent authority, being barred by principle of res judicata.
7. The question that arises as to why the Supreme Court allowed the petitioners to prefer appeal, if the issues aforesaid reached finality between the parties, has been raised by the counsel for the petitioners.
To get the answer to the question, one should notice the relevant provisions relating to appeal and revision, as quoted hereunder :
'Railway Protection Force Rules, 1959
Rule 58(2) : In the case of an appeal against an order imposing any of the penalties specified in Rule 41, the appellate authority shall consider :--
(a) whether the procedure prescribed in these rules has been complied with, and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice;
(b) whether the proceedings are justified; and
(c) whether the penalty imposed is excessive, adequate or inadequate;
and pass orders :
(i) setting aside, reducing, confirming, or enhancing, the penalty;
(ii). remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case :
Provided that -
(i) the appellate authority shall not impose any enhanced penalty which neither such authority nor the authority which made the order appealed against is competent in the case to impose;
(ii) no order imposing enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to made against such enhanced penalty; and
(iii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in Clause (a) to (d) or Rule 41, and an enquiry, under Rule 44 has not already been held in the case, the appellate authority shall subject to the provisions of Rule 47, itself hold such inquiry or direct that such inquiry be held and thereafter on consideration of the proceedings of such inquiry and after giving the appellant an opportunity of making any representation which he may wish to make against such penalty pass such orders as it may deem fit.'
'Rule 60{2) : The revising authority may remit, vary or enhance the punishment imposed, or may order a fresh enquiry or the taking of further evidence in the case as it may consider necessary.
(3) The provisions of Rule 58 relating to appeals would apply so far as may be to such orders in revision.'
The question for determination of the issue as to whether the procedure prescribed in the rules was followed or not does not arise in a case where penalty is imposed under Rule 47. Whether there is a failure of justice and the proceeding is justified or not was decided by the Calcutta High Court and was affirmed by the Supreme Court.
Thus, there was no occasion for the appellate or revisional authorities to decide the aforesaid issues.
The only question the appellate or the revisional authorities could have decided is as to whether the penalty imposed is excessive, adequate or inadequate.
Liberty given by the Supreme Court to the petitioners to move before the appellate authority, therefore, should be construed to be a liberty given to the appellate authority to determine whether the penalty imposed is excessive, adequate or inadequate.
In the aforesaid background, if the appellate authority vide order dated 30th January, 1986 and in some of the cases, if the revisional authority vide order dated 2nd September 1993 refused to determine the question relating to legality and propriety of order of punishment and the petitioners having removed for the 'charge of theft', if the appellate or revisional authorities refused to reduce the penalty, it cannot be held illegal. No ground has been made out to interfere with the appellate or revisional orders.
8. The other question that arises is as to whether the petitioners can claim similar relief and benefit as was allowed by the Division Bench of the Patna High Court in the case of Birendra Prasad Yadav, CWJC No. 4617 of 1991, as referred to above or not.
9. From the order passed in the case of Birendra Prasad Yadav, it will be evident that the attention of the Patna High Court was not drawn that the writ petition before the Patna High Court was not maintainable against the order of removal dated 27th November, 1981 being barred by principle of res judicata.
The order of removal dated 27th November, 1981 was affirmed upto Supreme Court was not even noticed by Patna High Court in the case of Birendra Prasad Yadav.
'A decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of a statute' (Municipal Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38).
A decision of the Court is not a binding precedent if given per incurtam, i.e., without the Court's attention having been drawn to the relevant authorities, or statutes.
Further, the order of dismissal dated 27th November, 1981 having been affirmed upto the Supreme Court, the issue as raised and discussed having been finally decided, there was no occasion for the revisional authority to make any enquiry or to remit the case of Birendra Prasad Yadav, when no enquiry was required to be held as per Rule 47 of RPF Rules, 1956.
In the case of Birendra Prasad Yadav, the action of revisional authority was not in accordance with Rule 60. The Revisional Authority had a limited role to play. It was required to decide only the 'quantum of punishment', as referred to above. Therefore, the petitioner cannot rely on the decision of the Patna High Court in the case of Birendra Prasad Yadav, nor can claim relief, having no binding precedent.
10. There being no merit, all the writ petitions are dismissed. However, there shall be not order, as to costs.
Tapen Sen, J.
I agree.
Vikramaditya Prasad, J.
11. I have the privilege of going through the judgment prepared by Hon'ble Mr. Justice S.J. Mukhopadhaya. Though the decision reported in AIR 1985 SC 1416 disposes of a bunch of Civil Appeals but this decision has come to be identified more popularly as Tulsiram's case. Tulsiram Patel, on being dismissed without enquiry, had preferred a departmental appeal, which had also been dismissed (vide paragraph 148 of the reported case) and thereafter he had filed a writ petition, whereas in this case no departmental appeal had been preferred by the petitioner before filing the writ petitions in Calcutta High Court. While Tulsiram's appeal was dismissed by the Apex Court, some other appeals were allowed. In paragraph 176 of the said judgment, two other appeals were allowed and the following directions were given :--
'....In the case of those Government servants in this particular group of matters who have not filed any appeal, in view of the fact that they were relying upon the decision of this Court in Challappan's case, AIR 1975 SC 2216, we give them time till September 30, 1985, to file a departmental appeal, if so advised, and we direct the concerned appellate authority to condone in the exercise of its power under the relevant service rule the delay in filing the appeal and, subject to what is stated in this judgment under the headings 'Service Rules and the Second Proviso -Challappan's case and 'The Second Proviso - Clause (b)', to hear the appeal on merits. ....'
In the instant case, the Apex Court gave thefollowing directions :--
'The question involved in these petitions is covered by decision of this Court reported in Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416. This Special Leave Petitions are therefore dismissed. If so advised, it will be open to the petitioners to prefer departmental appeal and apply for condonation of delay, if any, and the authorities concerned will consider it and dispose if of in accordance with law.'
The Apex Court directs the followings :--
(i) The case is covered by Tulsiram's case.
(ii) The petitioner may file a departmental appeal.
(iii) The delay in filing appeal may be condoned.
(iv) The authorities to consider the appeal and disposed of the appeal according to law. Thus, though the wordings of this direction with slight variation in the same is a reproduction of the directions given in the paragraph 176 of Tulsiram's case.
12. The question is what is the meaning of the aforesaid directions of the Apex Court, when It says that the case is covered by Tulsiram's case. In my humble opinion, it does not mean that what exactly happened with Tulsiram's case will be applied (because Tulsiram's appeal in Apex Court had been dismissed, as stated above) because had such been the intent of the Apex Court, then the Apex Court would not have directed for preferring departmental appeal, rather, referring to Tulsiram's case, would have dismissed the appeal straightway. Paragraph 136-A of the said judgment recorded as follows :--
'136-A. A Government servant who has been dismissed, removed or reduced in rank by applying to his case Clause (b) or an anagolous provision of service rule is not wholly without - remedy. As pointed out earlier, while dealing with the various service rules, he can claim in a departmental appeal or revision that an enquiry be held with respect to the charges on which the penalty of dismissal, removal or reduction in rank has been imposed upon him unless the same or a similar situation prevails at the time of hearing of the appeal or revision application. If the same situation is continuing or a similar situation arises, it would not then be reasonably practicable to hold an enquiry at the time of the hearing of the appeal or revision. Though in such a case as the Government servant, if dismissed or removed from service, is not continuing in service and if reduced in rank, is continuing in service with such reduced rank, no prejudice would be caused to Government or the Department if the hearing of an appeal or revision application, as the case may be, is postponed for a reasonable time.'
In paragraph 137, the Apex Court says :--
'137. Where a Government servant is dismissed, removed or reduced in rank by applying Clause (b) or an analogous provision of the service rules and he approaches either the High Court under Article 226 or this Court under Article 32, the Court will interfere on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised. It will consider whether Clause (b) or an analogous provision in the service rules was properly applied or not. The finality given by Clause (3) of Article 311 to the disciplinary authority's decision that it was not reasonably practicable to hold the enquiry is not binding upon the Court. The Court will also examine the charge of mala fides, if any, made in the writ petition. In examining the relevancy of the reasons, the Court will consider the situation which, according to the disciplinary authority, made it come to the conclusion that it was not reasonably practicable to hold the inquiry. If the Court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by Clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated. In considering the relevancy of the reasons given by the disciplinary authority, the Court will not, however, sit in judgment over them like a Court of first appeal In order to decide whether the reasons are germane to Clause (b), the Court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. The matter will have to be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a courtroom, removed in time from thesituation In question. Where two viewsare possible, the Court will decline tointerfere.' (Italics emphasized)
From the readings in paragraph 137, as quoted above, it is found that when the case was decided by the learned Single Judge and confirmed by the Division Bench of Calcutta High Court, it examined the only question whether or not the requirement of Rule 47 of the Railway Protection Force Rules, 1959, was actually existing, as appearing, on perusal of the impugned order and consequently the order of dismissal was justified? Undisputedly, at that stage, as the High Court, in exercise of the power of review under Article 226 of the Constitution, cannot act as an appellate Court or as the Court of fact. Therefore, the limited question before the Court was whether those situations from the impugned order existed, justifying the order of dismissal. This becomes a question of law. But still the question will remain whether, in fact, while that decision was taken, those factors existed, ascertainment of which may require an inquiry or this can be examined In departmental appeal. Even in appeal, if it is discovered tat in fact, such a situation did not exist, then the appellate Court may set aside the order passed under Rule 47. The Apex Court also holds (in paragraph 136-A, supra) that a Government Servant is not without remedy and he can claim a departmental appeal or revision. The Rules 47 and 58 both are statutory rules. Rule 58 does not exclude from its ambit any order passed under Rule 47. Therefore, on bare perusal of the order of dismissal passed under Rule 47 a writ Court can find out only whether the factors as envisaged in that Rule 47 are found in the impugned order and if it finds it, it can uphold that such a dismissal is Justified. But as stated above, at the cost repetition, whether, in fact, such a situation existed is always a question of fact and subject of further inquiry and can be taken into consideration in appeal and not in a writ petition as the writ Court neither acts a Court of fact, nor it can sit as an appellate Court. So, in my view, when the Apex Court directs the appellant to file an appeal and directs the appellate Court to consider it, even after condoning the delay, according to law, it means that appellate Court should exercise its jurisdiction as vested under Rule 58. In absence of any restrictions imposed by the Apex Court, the appellate Court is expected to consider the entire matter, even the justification for exercising the power under Rule 47 and consequently, it may pass order, altering the finding, reducing the sentence etc. The Division Bench of the Hon'ble Calcutta High Court simply confirms this that on face, in exercise of power under Rule 47, dismissal without enquiry is not illegal, but this decision of the High Court never said that those situations existed in fact.
13. If it is held that the High Court has confirmed the order of dismissal passed by the disciplinary authority and the Apex Court has also dismissed the appeal, then the matter of dismissal stood completely adjudicated, and consequently the principle of res judicata applied, therefore, the appellate Court in the obtaining circumstances of the case was only required to exercise its power under Rule 58(2)(a)(i) to the limited extent of considering the excessiveness of the penalty. In my view, it is not the import of the order of the Apex Court.
14. To fortify my view, I will like to refer to the order passed by the learned Single Judge and the learned Division Bench of the Calcutta High Court. The learned Single Judge, while dismissing the writ, held as hereunder :--
'The application is accordingly dismissed, without any order as to cost. The petitioner, if so advised, may agitate the matter further by way of departmental appeal or a regular suit.'
15. The Division Bench confirmed the order. The total effect of these judgments, in my humble view, is that though under Rule 47, the dismissal is justified but itspropriety of fact can be agitated in departmental appeal. Thus, even the Calcutta High Court recognized the right of the petitioner to get the matter decided in departmental appeal, the Apex Court also said so, on consideration of all these, I am of a considered view that in the circumstances as brought out in order under Rule 47 were not finally adjudicated and consequently, it is not hit by res judicata.
16. If such construction is given to the order of the Apex Court that dismissal stands confirmed and the appeal is only limited to reduction of penalty, then this construction, in my view, makes the order of the Apex Court meaningless for the simple reason that at one hand, it can not be said that the dismissal can not be redecided being barred by res judicata and at the other hand that dismissal can be substituted by a lesser punishment. Thus, both are not compatible. If it is held that dismissal is barred by res judicata, then in absence of any direction of the Apex Court that excessiveness of quantum of punishment be only decided, will make the appellate Court incompetent to modify the order of dismissal. Therefore, I most humbly differ with the construction given by my learned Brother Judge and say that as the Government Employee cannot go without remedy, as said by the Apex Court itself (paragraph 136-A, supra), the appeal means an appeal under Rule 58 and the appellate/revistonal Court could pass any order authorized under that rule. Thus, the dismissal, in my opinion, was not hit by res judicata and the factual situation for such dismissal had never attained finality. The Apex Court directs for deciding the appeal 'According to Law'. The question, therefore, is what is meant by 'Accordance with Law'. The Law Lexicon (P. Ramanatha Aiyar) defines it as follows :--
'According to law.--To act according to law is to aet in conformity with legal formalities. A direction to a tax-collector that he should collect taxes 'according to law' means 'by legal process'. An Administrator's bond which providesthat he shall administer 'according to law' means that he should fulfil the functions of an administrator and perform all the duties laid down on him by the provisions of law.'
17. Thus, while considering a matter 'according to law' in the obtaining situation would empower the appellate authority (and the revisional authority) to decide the appeal/revision according to the Rule 58 or 60 as the case may be. Rule 58 has already been reproduced in the judgment of my learned Brother Judge. The Rule 58(2) provides for considering a matter, in which penalty is under Rule 41. In the instant case, as the penalty is under Rule 41, the appellate authority, while deciding the matter according to law, has to answer to the questions as posed in Rule 58(2)(a), (b) and (c).
18. Now, I look to the departmental appellate/revisional orders, which are impugned in the writ petitions. The appellate authority has answered all the points raised by the appellants in their presentation of appeals. This answer does not appear to be perverse but unfortunately, non-holding by the disciplinary authority that 'it is not reasonably practicable to follow the procedures prescribed in the said rules (44, 45 and 46'), which the foundation stone of any order made under Rule 47 was pleaded and it does not appear to have been answered, though the appellate authority, on its own, under Rule 58(2)(a) should have examined it. Thus, the main pleas, which could and should have been taken, were not taken before the appellate/revisional authority and is, thus, barred by constructive res judicata, here in these batch of writ. And therefore, the writs became devoid of any merit to undo the order made under Rule 47.
19. Thus, though for the entirely different reasons, I concur with the decisionof any learned Brother, Hon'ble Mr. JusticeS.J. Mukhopadhaya.