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Petitioner: GOVERNMENT OF PAKISTAN VS Respondent: AQUIL AHMED
P L D 1969 Dacca 930
P L D 1969 Dacca 930
Before A. S. Chowdhury and A. H. Khan, JJ
GOVERNMENT OF PAKISTAN‑Appellant
Versus
AQUIL AHMED‑Plaintiff‑Respondent
Civil Appeal from Original Decree No. 36 of 1967, decided on 15th December 1967.
(a) Constitution of Pakistan (1962), Art. 234(1)‑Government servant‑Appointment made "subject to termination on a fort night's notice on either side"‑Services terminated thrice but action stayed each time by higher authorities‑Fourth notice of termination of service contested unsuccessfully in writ proceedings before High Court and Supreme Court‑Employee allowed to continue In service for four months after decision of Supreme Court and eventually notified that previous notice "could not be withdrawn and he was no longer in service"‑‑Previous notice, held, ran out long ago and a fresh notice was necessary to fulfill condition of a fortnight's notice and service not legally terminated.
(b) Civil Procedure Code (V of 1908), S. 11‑Res judicata ,Government servant challenging in writ jurisdiction legality of termination of service made by 14 days notice accord ing to conditions of appointment‑Writ petition dismissed but employee allowed to continue in service for four months after such decision‑Employee subsequently served with notice stating a result of the notice and the failure of the legal proceedings and representations to the Minister . . . . . . Mr. . . . . . , is no longer in service"‑Employee filing declaratory suit challenging legality of such notice on ground of its being mala fide and not giving 14 days time‑Matter of malice relating to last notice or want of fortnight's notice being not directly and substan tially in issue in writ petition, subsequent suit, held, not barred by res judicata.
Manahem S. Yeskoova v. Union of India and others A I R 1960 Bom. 196; Daryao and others v. State of U. P. and others A I R 1961 S C 1457 and Moosa Goolam Ariff and others v. Ebrahim Goolam Ariff 16 C W N 937 (P C) distinguished.
(c) Civil Procedure Code (V of 1908), S. 11‑Res judicata --Essential test‑Matter in issue and not subject‑matter of suit.
(d) Civil Procedure Code (V of 1908), S. II‑Res judicata Writ‑Disputed questions of fact‑Cannot be resolved by means of affidavits in writ petitions‑Evidence adduced in subsequent suit on same subject‑matter as in writ petition being not available at writ stage and point in issue in subsequent suit not decided in writ proceedings‑Application of principle of res judicata, held, would, in circumstances, tantamount to denial of justice.
Commissioner of Income‑tax v. Wahiduzzaman P L D 1965 S C 171 rel.
(e) Civil Procedure Code (V of 1908), S. 11‑Res judicata May be pleaded in certain circumstances even when cause of action is different‑Such cause of action should however be directly do issue in previous suit.
Midnapore Zamindary Co. Ltd. v. Chandra Singha Dudhuria and others A I R 1939 Cal. 1 rel.
(f) Government servant‑Termination of service‑Show‑cause notice‑Order terminating .service of Government servant, although not saying so, yet facts revealing that such servant was being punished for certain allegations made against him‑Servant, in circumstances, held, entitled to opportunity to show cause against proposed action.
Noorul Hassan and others v. The Federation of Pakistan P L D 1956 S C (Pak.) 331 rel.
Abdul Majid Sheikh v. Mushaffe Ahmed and another P L D 1965 S C 208 ref.
(g) Judgment‑Objection as to expression of emotion in parts of judgment‑Expression of judicial indignation, held, not unknow to forensic literature.
Md. Nurul Huda, Deputy Attorney‑General with M. A. Hamid' and Shah Hurmatullah for Appellant.
Respondent in person.
JUDGMENT
A. S. CHOWDHURY, J. ‑This appeal is at the instance of the Respondent Government of Pakistan represented by the Secretary, Ministry of Finance anal is directed against the judgment and decree passed by Mr. S. R. Karmaker, Subordinate Judge, 3rd Court, Dacca in Title Suit No. 6 of 1962 on the 26th November 1966.
Plaintiff's case, in so far as it is necessary for the disposal of this appeal, is that he was appointed as a Superintendent of Central Excise in the United Province of India before Indepen dence in November 1946, as a result of his having topped the list of successful candidates at an All‑India examination held for selection to the said post. After having remained in that post until April 1950, he resigned and migrated to Pakistan for obvious. reason. He was thereafter appointed a temporary Superintendent of the Central Excise of Land Customs on the 20th May 1950, and was posted to Feni by the Collector of Land Customs as. Superintendent and joined the post on the 25th May. Soon after the plaintiff joined that station he found that there was something wrong and that he could not compromise with what he considered to be wrong. He, therefore, found himself involved soon into troubles with the officers superior to him and was transferred to Dinajpur in November 1951. At Dinajpur also things were not smooth for him as he acted in the interest of the reputation and prestige of the department and in the faithful discharge of his duties. In doing so, it is claimed, he incurred displeasure of his superior officers for having obstructed the release of a smuggler who was sought to be prosecuted in a criminal case. Further case of the plaintiff is that his service was terminated on the 6th: November 1952, although apparently on the ground that Public Service Commission did not approve of his appointment. The plaintiff, it is alleged, did not take things without protest and he filed representations against his termination and continued in. service, but again on the 24th December 1952, he was served with a notice of termination of service. Thereafter, it is alleged, the plaintiff appealed to the Minister by his letter dated 8‑4‑53 and the order of termination was stayed. The stay order was with drawn by the department and he was informed on 2‑9‑53 that the government stuck to its decision and his services were again terminated. The Ministry of Finance again issued an order of stay and the plaintiff continued to be in service, it is alleged, until 30‑12‑57, when he was again served with an order terminating his service after two weeks from that date.
The order dated 30‑12‑57 was called in question in a writ petition filed in the High Court of West Pakistan which was rejected. On appeal, the Supreme Court upheld the order of the High Court. The plaintiff's further case is that after the dismissal of his appeal by the Supreme Court, the Department concerned allowed him to continue in service for four months and ultimately on 14‑3‑59, it suddenly informed him that the notice dated 30‑12‑57, could not be withdrawn and that he was no longer in service.
The plaintiff then filed the present title suit for a declaration that the Order No. 33(2)‑R/58, dated 14‑3‑59 which purported to terminate the plaintiff's service was illegal and not binding on the plaintiff and that notwithstanding the said order, the plaintiff, still continued in the service of the defendant as Superintendent, Land Customs, Dacca.
The suit was contested by the defendant, Government of Pakistan by filing written‑statement verified by the Assistant Collector of Central Excise and Land Customs on 9‑6‑62. In that written statement it was claimed that the suit was barred by what .is called principle of res judicata "inasmuch as the points involved in the suit have already been decided in writ jurisdiction by the High Court and the decision has been confirmed by the Supreme Court." It was then alleged that the plaint was vague ‑on material points. It was alleged that the allegations made therein were vague and intended to cover up "the indiscipline and misdeeds of the plaintiff. "It was further claimed that the so called sense of duty was nothing but a cunning device to keep control over the superiors with threats and intimidation to achieve his personal ends, the plaintiff is decidedly above the average in making cunning devices." It was further asserted that the department always acted in accordance with law and on the advice of the Federal Public Service Commission and that "the notice of termination of plaintiff's service due to disapproval of the Federal Public Service Commission in terms of appointment in November 1952, has been perfectly legal and valid yet the defendant had shown utmost leniency in dealing with the matter concerning termination of plaintiff's service." It was finally claimed that the plaintiff was appointed as a temporary Superin tendent, Central Excise and Land Customs on 20‑5‑50 on condition that his services could be terminated with a fortnight's notice or pay in lieu thereof. As the plaintiff was not recruited through the agency of the Federal Public Service Commission his case was referred to that body in January 1951, along with the cases of other officers for regularisation of the position as required under the rules. The Federal Public Service Commission did not approve the appointment of the plaintiff and hence notice was issued on the plaintiff terminating his service in terms of his letter of appointment." Then the written‑statement proceeds to say how and in what circumstances notice of termination dated 4‑11‑52 was extended from time to time and, finally, the notice terminating his service was made on 30‑12‑57. It was further stated that `Mr. Aquil Ahmed managed to approach the Prime Minister and secured an order of stay and pass order for certain enquiries'. But ultimately it was decided that the services of the plaintiff should be terminated in accordance with the advice of the Service Commission, the Prime Minister also endorsed this decision and accordingly again a notice was issued on 30‑12‑57 terminating the plaintiff's service in terms of his appointment. 1t is then stated that the plaintiff's writ petition was rejected by the High Court and the Supreme Court also upheld the decision of the High Court of West Pakistan. It was finally urged therein that "the notice of termination of the plaintiff's service issued in December 1957, which has been found by the highest judiciary of the country to be valid, cannot be challenged by the plaintiff now." The plaintiff as it appears from the record in order to contract the apprehended order of the termination of his service and to cover up his own misdeeds had been minutely seeking lacuna in the activities of his superiors and created records to use them as threat to his superiors and thus to gain his own objectives". There is no reference in the written statement about the order dated 14‑3‑59 which has been called in question in the present suit, nor is it stated thereunder why and in what circumstances after having allowed the plaintiff to continue in service for four months after the judgment of the Supreme Court, he was again served with a notice which was in effect termination of his service once again.
The learned Deputy Attorney‑General, who has appeared before us on behalf of the appellant, has attacked the judgment mainly on the ground that the present title suit is barred by the principle of res judicata embodied in section 11 of the Code of Civil Procedure. His contention is that on the 30th December 1957, the services of the respondent Mr. Aquil Ahmed were finally terminated and that the present suit is in effect a challenge to the said termination order and that order not having been set aside by the High Court of West Pakistan and the Supreme Court the present suit is barred.
Mr. Aquil Ahmed, who has appeared in person and presented his case with thoroughness, points out that the present suit challenges the validity of the order by which he is affected namely, the order dated 14‑3‑59. His contention is that the judgment of the Supreme Court was delivered on the 15th December 1958, and in pursuance thereof he would be without employment from that day but the department allowed him to continue in service and terminated it on 14‑3‑59. According to him the present suit is directed against the said order on the ground of its being mala fide. He submits that points raised in the present suit were not directly and substantially in issue in the writ petition, nor can there be any question of constructive res judicata as he did not know that the malicious order would be passed a few months after the order of the Supreme Court.
In reply to our query if the allegation of the plaintiff that he continued in service for four months after the judgment of the Supreme Court was correct, the learned Deputy Attorney -General informed us that this statement was correct. He, however, added that the plaintiff was allowed to continue for the purpose of scrutinising his case. The fact, however, remains that he continued in service for four months after the decision o f the Supreme Court.
The plaintiff's appointment as a temporary Superintendent of Central Excise and Land Customs at a starting pay of Rs. 200‑14‑500 plus allowances admissible under the Rules was subject to the following condition as will appear from Exh. 1:
"Your appointment as Superintendent of Central Excise and Land Customs will also be subject to termination on a fortnight's notice on either side."
The appointment of the plaintiff could therefore be dispensed with on a fortnight's notice if it was termination simpliciter.
The material part of notice Exh. 24 dated 30‑12‑57 is as follows: ‑.
"A fortnight's notice is accordingly given to Mr. Aquil Ahmed and his services will be terminated with effect from the date of expiry of a fortnight from the date of this notice on him."
On a consideration of the condition contained in his letter of ap pointment, the Supreme Court found that the notice dated 30‑12‑57, could not be challenged in law and that the appointment of the plaintiff was legally terminated by the notice dated 30‑12‑57. The position therefore, is that on 15‑12‑58, when the Supreme Court upheld the termination of his service by the notice Exh. 24, the appointment would have come to an end on that date had he not been continued in service, the order of stay also having ceased to exist on that day.
The continuation of Mr. Aquil Ahmed in service for a period of four months with effect from 16‑12‑58, indicates that he was still acting as Superintendent of Land Customs by virtue of his appointment given to him on 20‑5‑50. The learned Deputy Attorney‑General, has, however, pointed out that the plaintiff was allowed to be in service only for the purpose of examining the case of the plaintiff afresh. But it is to be realised that the plaintiff could not continue in service as a stranger. In his capacity as Superintendent of Land Customs he was issuing orders and discharging functions of that office. He could only do so in view of his continuing as Superintendent whatever may be the reason: When he continued as Superinten dent for four months, we are of opinion, that even if it was a case of termination simpliciter, a fresh notice for a for night was required to be served on him. No such notice was served on him. We have mentioned that in his appointment letter (Exh. 1) there is a specific condition that his appointment can be terminated by giving him fortnight's Notice. The plaintiff was kept in service for an indefinite period after four months and suddenly on 14‑3‑59, a notice is given to him, the effect of which is that he found himself without employment with effect from that, very date, i.e., 14‑3‑59.
The letter No. 33(2)‑R‑58, dated 14‑3‑59 (Exh. 33) reads as follows: ‑
"The undersigned is directed to state that the writ sought by Mr. Aquil Ahmed to quash the notice No. 33(30)‑ASE/L/50, dated 30th December 1957 and enable him to remain in service has been refused by the Supreme Court, confirming the refusal of the High Court. The Notice, therefore, stands and ran out over a year ago. The Government acting on the suggestion of the Supreme Court in its Judgment, afforded Mr. Aquil Ahmed an opportunity to produce before the Minister of Finance at Dacca on the 2nd March 1959, evidence of alleged victimisation by superior officers. After due consideration of the case Government has come to the conclusion that its earlier decision upheld both by the High Court and the Supreme Court, to terminate Mr. Aquil Ahmed's services cannot be withdrawn.
As a result of the notice and the failure of the legal pro ceedings and representation to the Minister of Finance Mr. Aquil Ahmed is no longer in service."
We have been in somewhat difficulty to understand this notice. It speaks about notice dated 30‑12‑57 that "the notice therefore stands and ran out over a year ago." When it ran out over a year) ago, a fresh notice was necessary to fulfill the condition of fortnight's notice. The purpose of notice is to enable a person to prepare himself for a charge. When the department allowed him to continue in service, he remained in uncertainty. The former notice cannot serve that purpose. A fresh order was issued on 14‑3‑59 which did not give a fortnight's time. The notice of 30‑12‑57 was challenged by the plaintiff in a Writ Petition in the High Court of West Pakistan and the decision of the Supreme Court was given in the year 1955 and the present notice emerges only on 14‑3‑59. This notice of 14‑3‑59 is challenged on the ground that it does not give a fortnight's notice. 1 t brings about an abrupt termination of the service of the plaintiff. Therefore,, on this ground alone, we are of opinion, that the service of the plaintiff has not been legally terminated by this letter dated 14‑3‑59.
The suit cannot be barred by the principle of res judicata, in asmuch as the points directly and substantially in issue in this suit were not in existence at the time of filing the Writ Petition in the High Court of Lahore.
Section 11 of the Code of Civil Procedure, broadly speaking, provides that a Court shall not try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties. It cannot, therefore, be said that matter of malice relating to the letter dated 14‑3‑59 or want of fortnight's notice was "directly and substantially" in issue in the Writ Petition. Therefore, we are unable to accept the contention of the learned Deputy Attorney‑General that the suit itself is barred. In the letter dated 14‑3‑59 failure of plaintiff's representation to the Minister of Finance has been `mentioned. It is contended by Mr. Aquil Ahmed that the failure of his representation to the Minister is the result of the efforts made by the officers who had animus against him for long. He contends that the very statement that he was afforded adequate opportunity for representing his case to the Finance Minister was false and malicious.
Learned Deputy Attorney‑General places his reliance on the case of Manahem S. Yeshoova v. Union of India and others (A I R 1960 Bom. 196), in support of his contention. In that case it was held by the High Court of Bombay that where a Judge of the High Court has finally decided on merits the contentions raised in a Writ Petition under Article 226, the High Court would not allow the same conten tions to be reagitated in a suit. In the case before us the Writ Petition challenged the order dated 30‑12‑57, and the present suit calls in question the order dated 14‑3‑59 on the ground of malice. The facts of this case as indicated are easily distinguishable from the case of Bombay High Court and the matters requiring con sideration in the suit were not directly and substantially in issue in the Writ Petition. In this case same contentions are not sought to be reagitated.
The learned Attorney‑General has also placed his reliance on the case of Daryao and others v. State of U. P. and others (A I R1961 S C 1457). In that case it was held by the Supreme Court of India that if a Writ Petition is dismissed on merits by a High Court, a fresh petition under Article 32 of Constitution of India would not lie in the Supreme Court on points not urged before the High Court. We have already indicated that the plaintiff in this case asserts that a subsequent act was a mala fide one. So the question oil constructive res judicata does not arise in the ease before us. It E is the matter in issue and not the subject‑matter of the suit which forms the essential test of res judicata and we are of opinion that the matter in issue is different in the present suit.
Learned Deputy Attorney‑General has also placed his reliance in the case of Moosa Goolam Ariff and others v. Ebrahim Goolam Ariff (16 C W N 937 (PC)). In that case their Lordships of the Privy Council observed: "All the facts on which the present suit is based were known to the plaintiff and are stated at length in the proceedings of the former suit. No further evidence would have been needed. Nothing was wanting but the addition of an issue on the point." In those circumstances their Lordships held that the suits with which their Lordships were concerned were barred by the principle of res judicata. But to apply the above observation we are to hold that at the time of filing the Writ Petition in 1957 it was known to the plaintiff that he would be served with the allegedly mala fide order on 14‑3‑59 and that no further material would be necessary in the writ petition. We are plainly unable to do so. This observation it appears to us lends support to the contention of Mr. Aquil Ahmed that the suit is not barred by the principle of res judicata.
Mr. Aquil Ahmed has placed his reliance on the case of Commissioner of Income‑tax, East Pakistan, Dacca v. Wahiduzzaman (P L D 1965 S C 171). In that case their Lordships of the Supreme Court observed:
"Under the circumstances the ends of justice will be served by confining the bar of res judicata in relation to decisions of income‑tax authorities to cases where the decision is not clearly open to some objection. It should be a decision which is reached after proper enquiry, which is such as could reason ably have been reached on the material before the authority. and which does not suffer from such a defect as would render it liable to be set aside under section 100, C. P. C. in second appeal if it was a decision of a civil Court. Also a matter can always be reopened on the ground that fresh evidence having a material bearing on the point decided is available."
It is true their Lordships were considering an income‑tax matter and the decision referred to the determination of certain question by the Income‑tax Authority. But while discussing the question of the principle of res judicata the general observation made by their Lordships with regard to the principle of res judicata is to the effect that "a matter can always be reopened on the ground that fresh evidence having a material bearing on the point decided is available", and Mr. Ahmed submits that it lends support to his claim that the suit is not barred. To shut out al suit on the ground of res judicata it would be necessary to show that all the requirements of law as contemplated in section 11 of the Code of Civil Procedure are complied with. It should in this connection be considered in the ends of justice that disputed questions of facts cannot be resolved by means of affidavits in a writ petition and therefore the oral evidence that was adduced iii the suit cannot be said to have been available to the plaintiff at the time of filing of the writ petition.
It is true that res judicata may be pleaded even when cause of action is different in certain circumstances, but such a plea would be of no avail unless such cause of action was directly in issue in the previous suit:
In the case of Midnapore Zamindary Co. Ltd. v. Chandra Singha Dudhuria and others (A I R 1939 Col. 1,), a Division Bench consisting of Nasim Ali and Henderson, JJ., held that where a point was actually raised in pleadings but was not put into issue and was not argued before the Judge, raising of such a point in subsequent suit will not be barred by principle of constructive res judicata. This observation of the learned Judges clearly, applies to the facts of present case.
It is stated in the judgment of the Supreme Court that far from malice having been established there was not even an alle gation that the authority that ordered the termination of service was actuated by malice. "The appellant has not produced the pleadings, namely, the petition and the affidavit‑in‑opposition and the affidavit‑in‑reply in the writ petition to enable us to find out if the matter involved was directly and substantially, in issue in the previous suit. This burden of proving that adjudication of a legal right is barred is on the party raising such an objection." In the judgment of the Supreme Court as stated it is clearly stated: "As regards the allegations of malice there is no evidence on record that the scope of…
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