PETITIONER: <NAME>,EX-COMMISSIONER OF ENDOWMENTS Vs. RESPONDENT: BHIMSEN DIXIT DATE OF JUDGMENT29/09/1972 BENCH: <NAME>, S.N. BENCH: <NAME>, S.N. <NAME>, J.M. CHANDRACHUD, Y.V. CITATION: 1972 AIR 2466 1973 SCR (2) 495 1973 SCC (1) 446 ACT: Orissa Hindu Religious Endowments Act--Appointment of interim trustee under s. 41 without enquiry--<ORG> decision on the identical point not followed in bad faith by Commissioner of Endowments in revision amounts to contempt--Bonafide but erroneous distinguishing of a binding precedent not contempt. HEADNOTE: Under S. 27 of the Orissa Hindu Religious Endowments Act, the Additional Assistant Commissioner of Hindu Religious Endowments, appointed an interim trustee of two deities in a village in Orissa. The person in charge of the deities made an objection under S. 41 of the said Act, that since the deities were consecrated under a private endowment, the Act did not apply to the facts of the case. The Additional Assistant Commissioner rejected the objection without making any inquiry under S.41. The objector filed a revision under s. 9 of the said Act, before the appellant. During the period between the rejection of the objection and the filing of the revision, <ORG> in Bhramarbar Santra & Ors. V. State of Orissa and Others, I.L.R. 1970 Cuttack 54 decided the identical question and (<ORG>) held that the Assistant Commissioner cannot appoint an interim trustee under s. 27 until he has held an inquiry under s. 41 and has found that there was no hereditary trustee of the religious institution. At the hearing of the revision, the said decision of <ORG> was cited before the appellant, but the appellant did not follow it and dismissed the revision. The applicant filed a writ petition, in <ORG> against this order. <ORG> on hearing the applicant issued notice to contempt of <ORG> to the applicant. <ORG> took exception to the following sentence occurring at the end of paragraph 2 in his order "Further, against the order we have moved <ORG>, and as such, the matter can be safely deemed to be sub- judice." and held that the appellant was guilty of contempt of Court. On appeal before this Court, it was contended that the appellant was not guilty of contempt of court, for, the sentence in the appellant's order, neither interfered with the administration of justice, nor scandalised <ORG>. Dismissing the appeal, HELD : (1) Contempt of court is disobedience to the court by acting in opposition to the authority, justice and dignity thereof, it signifies the willful disregard or disobedience of the court's order. It also signified such conduct as tends to bring the authority of the court and the adminis- tration of law into disrepute, Oswald's Contempt of Court, 1910 Edn. pp. 5-6 referred to. [496D] (ii) It is a common-place that where the superior court's order staying proceedings is disobeyed by the inferior court to whom it is addressed, the latter court commits contempt of court for it acts in disobedience 496 the authority of the former court. The act of disobedience is calculated to undermine public respect for the superior court and to jeopardise the preservation of law and order. [496E] (iii) The appellant is guilty of contempt. Firstly, on the date of the order, nothing was pending in <ORG>; only a petition was pending in <ORG> form a certificate to appeal to <ORG> from the decision in Bhramarbar Santras Case' The appellant has thus made a wrong statement of fact. Secondly, the use of the word "we" is also significant. it indicates that the appellant identified himself as a litigant in the case and did not observe due detachment and decorum as a quasi-.judicial authority. Lastly, it is not possible to believe that the appellant, who had 23 years of judicial experience, could have entertained the view that as soon as a petition for certificate to appeal to <ORG> was filed in <ORG> against the decision, the binding character of the decision disappeared. it is, therefore, clear that the appellant deliberately avoided to follow the <ORG> decision by giving wrong and illegitimate reasons and that his conduct is 'clearly mala-fide, [496 G] Under Art. 227 of the Constitution, <ORG> is vested with the power of superintendence over the <ORG> and tribunals in the State. Acting as a quasi-judicial authority, the appellant was also subject to the super- intendence of <ORG>. Accordingly, the decisions of <ORG> were binding on him. He could not get away from them by adducing factually wrong and illegitimate reasons. The conduct of the appellant in not following the previous decision of <ORG> is calculated to create confusion in the administration of law, which will undermine respect for law laid on by <ORG> and impair the constitutional authority of <ORG>. Therefore, <ORG> has rightly found the appellant guilty of contempt. A bonafide but mistaken act of distinguishing a binding precedent does not amount to contempt. [500B] <CITATION> ,  3 S.C.R. 338, referred to. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 312 of 1971.

July 8, 1971 of <ORG> in Original Criminal Misc. case No. 9 of 1970, <NAME>, <NAME> and <NAME>, for the appellant.

<NAME>, Solicitor-General of India and <NAME>, for respondent No. 2, The Judgment of the Court was delivered by <NAME>, J. The appellant is a member of <ORG> of the State of Orissa, He was at one time officiating as District Judge. At the relevant time he was functioning as Commissioner of <ORG>, Orissa. The office of the Commissioner is created by the Orissa <ORG> Act.

In village Sanabagalpur there are two deities. The Additional Assistant Commissioner of Hindu Religious Endowments took action under s. 27 of the said Act for appointing an interim trustee of the deities. The person incharge of the deities made an objection under s. 41 of the said Act that the Act did not apply as the deities were consecrated under a private endowment made by him The Additional Assistant Commissioner rejected the objection by his order dated July 26, 1967. Without making any inquiry under s. 41, he held that prima facie there was a public endowment. He did not appoint the objector as a trustee of the deities. The objector filed a revision under s. 9 of the said Act before the appellant.

During the period intervening between the rejection of the objection by the Addl. Assistant Commissioner and the filing of the revision by the objector, the identical issue was raised before <ORG> in <CITATION> (1). In that case <ORG> held that the Asstt. Commissioner cannot appoint an interim trustee under s. 27 of the said Act until he has held an inquiry under s. 41 and has found that there was no hereditary trustee of the religious institution. At the., hearing of the revision the aforesaid decision was cited before the, appellant by the applicant. After hearing the parties, the appellant made the following order "1...... It is said on behalf of the petitioner that he has filed a petition under section 41 of the Act. But no evidence is produced to that effect, thereby disclosing that their plea is humbug. The next argument is that the learned Assistant Commissioner should have first decided that the institution has no hereditary trustee. The Assistant Commissioner has impliedly done so.

2. The next argument that without a final declaration as to the nature of the institution, no appointment under Section 27 can be made, does not seem to be correct. The decision in <ORG> on <NAME> case would not be applicable to this instance. Further against the order, we have moved <ORG>, and as such, the matter can be safely deemed to be subjudice.

3. In order to establish that the petitioner is the hereditary trustee, he has to file an application under section 41 of the Act. No doubt the court can initiate such a proceeding, But we should not do it where the institution appears to be safely a public one, in this instance, a Siva temple."

(1) I.L.R. 1970 Cuttack 54.

The applicant filed a writ petition in <ORG> against this order. <ORG>, on hearing the applicant, issued notice for contempt of <ORG> to the appellant. <ORG> took exception to the following sentence occurring at the end of paragraph 2 in his order : "Further, against the order we have moved <ORG>, and as such, the matter can be safely deemed to be sub judice."

The appellant appeared before <ORG> in response to the notice. According to him the apparently objectionable sentence in his order "was not at all the basis for (his) decision." He said that the revision was dismissed by him after distinguishing the case before him from the facts of <NAME>. (1) He further Pleaded "that under the Constitution the decisions of <ORG> are law of the land. So, bonafide, was of the opinion that when a matter is under appeal, or otherwise before <ORG>, the point of law, becomes subjudice and only a decision of <ORG> in the matter, would be binding on <ORG>." It was also pleaded that the proceeding before him was an administrative proceeding and that the act of not following the decision of the High. Court in such a proceeding "may not amount to contempt of court."

<ORG> did not accept his pleas in justification. It was held that the appellant "refused to follow" the decision in <NAME>and others.(1) <ORG> further held that "we do not And any trace of bona fides of the condemner in the order dated 19th January, 1970........ The condemner is a senior judicial officer who has already

-put in 23 years of service; having been recruited as a Munsif he has now risen to the rank of District Judge. We regret to find that though he has functioned as a judicial officer for about 23 years he has not been able to pick up the approach and attitude of a judicial officer and has actuated by the bias so often manifested in action of the

-executive today while disposing of a judicial proceeding and when found fault with has come up with the stand that he was acting administratively."

After examining the matter further, <ORG> said : "The conduct of the condemner far from being bonafide is clearly a malafide one and he intentionally avoided to follow the decision of this Court by advancing grounds which were most inappropriate." On that view of the matter <ORG> found him guilty of contempt of court and admonished him in open court and directed him to pay Rs. 300 as costs of the proceedings.

<NAME>, counsel for the appellant, rightly did not seek to support the justification pleas. His argument now is that the (1) I.L.R. 1970 Cuttack 54.

appellant is not guilty of contempt of Court, for the sentence in the appellant's order, found objectionable by <ORG>, neither interferes with the administration of justice nor scandalises <ORG>. <NAME> as well as the Solicitor-General appearing for the <ORG> have stated before us that there is no decided case either in support of or against the argument. But the absence of a precedent should not preclude an act being held to be contempt merely because it is novel or unusual provided it is comprehended by the principles underlying the law of Contempt of Court. The absence of precedent should' however put the court on guard that the area of contempt is not being unduly expanded (Vide 17 Corpus Juris Secundum

21). The present case then is to be decided on principles and analogy.

Contempt of Court is disobedience to the court, by acting in opposition to the authority, justice and dignity thereof. It signifies a willful disregard or disobedience of the court's order; it also signifies such conduct as tends to bring the authority of the court and the administration of law into, disrepute. (Vide 17 Corpus furls Secundum pages 5 and 6; Contempt by Edward N. Dangel (1939 <ORG>.) page 14. Oswald's Contempt of Court (1910 <ORG>.) pages 5 and 6). It is a commonplace that where the superior court's order staying proceedings is disobeyed by the inferior court to whom it is addressed, the latter court commits contempt of court for it acts in disobedience to the authority of the former court. The act of disobedience is calculated to undermine public respect for the superior court and jeodardise the preservation of law and order. The appellant's case is to be examined in the light of the foregoing principles and analogy.

The remark in the appellants order found objectionable by <ORG> is this : "Further, against the order we have moved <ORG>, and as such the matter can be safely deemed to be subjudice." It may be observed that on the date of the order nothing was pending in <ORG>; only a petition was pending in <ORG> for a certificate to appeal to <ORG> from the decision in <NAME>. (1) The appellant has thus made a wrong statement of fact. Secondly, the use of .the personal pronoun "We" is also significant. It indicates that the appellant identified himself as a litigant in the case and did not observe due detachment and decorum as a quasi judicial authority. Lastly, we agree with <ORG> that it is not possible to believe that the appellant could have entertained the view that as soon as a petition for certificate to appeal to the (1) I.L.R. 1970 Cuttack 54.

<ORG> was filed in <ORG> against its decision, the binding character of the decision disappeared. He has 23 years' judicial experience and he could scarcely entertain that belief. We agree with <ORG> that the appellant deliberately avoided to follow its decision by giving wrong and illegitimate reasons and that his conduct was "clearly mala fide".

Under Art. 227 of the Constitution, <ORG> is vested with the power of superintendence over the courts and tribunals in the State. Acting as a quasi judicial authority under the Orissa Hindu Religious Endowments Act, the appellant was subject to the superintendence of <ORG>. Accordingly the decisions of <ORG> were binding on him. He could not yet away from them by adducing factually wrong and illegitimate reasons. <CITATION> (1) <NAME> observed :

"<ORG> of the High court held that a contravention of a condition imposed by a licence issued under the Act is not an offence under s. 5 of the Act. This raises the question whether an administrative tribunal can ignore the law declared by the highest court in the State and initiate proceedings in direct violation of the law so declared. Under Art. 215 , <ORG> shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Under Art. 226 , it has a plenary power to issue orders or writs for the enforcement of the fundamental rights and for any other purpose to any person or authority, including in appropriate cases any <ORG>, within its territorial jurisdiction. Under Art. 227 it has jurisdiction over all courts and tribunals throughout the territories in relation to which it exercise jurisdiction. It would be anomalous to suggest that a tribunal over which <ORG> has superintendence can ignore the law declared by that court and start proceedings in direct violation of it. If a tribunal can do so, all the subordinate courts can equally do so, for there is no specific provision, just like in the case of <ORG>. making the law declared by <ORG> binding on subordinate courts. It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working; otherwise there would be confusion in the administration of law and respect for law would irretrievably suffer."

(1) [1963] 3 S.C R. 338 at 366.

The conduct of the appellant in not following the previous, decision of <ORG> is calculated to create confusion in the administration of law. It will undermine respect for law laid down by <ORG> and impair the constitutional authority of <ORG>. Ms conduct is therefore comprehended by the principles underlying the law of Contempt. The analogy of the inferior court's disobedience to the specific order of a superior court also suggests that his conduct falls within the purview of the law of Contempt. Just as the disobedience to a specific order of the <ORG> undermines the authority and dignity of the court in a particular case, similarly the deliberate and malafide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of <ORG>. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is calculated not only to undermine the constitutional authority and respect of <ORG>, generally, but is also likely to subvert the Rule of Law 'and engender harassing uncertainty and confusion in the administration of law.

Our view that deliberate and malafide conduct of not follow- ing the binding precedent of <ORG> is contumacious does not unduly enlarge the domain of contempt. It would not stifle a bona fide act of distinguishing the binding precedent, even though it may take out to be mistaken. As a result of the foregoing discussion, we think that <ORG> has rightly found the appellant guilty of contempt. So we dismiss the appeal.

S.C.

Appeal dismissed.


PETITIONER: NAND KISHORE Vs. RESPONDENT: STATE OF PUNJAB DATE OF JUDGMENT21/09/1995 BENCH: <NAME>, M.M. BENCH: <NAME>, M.M. AHMADI A.M. (CJ) CITATION: 1995 SCC (6) 614 JT 1995 (7) 69 1995 SCALE (5)582 ACT: HEADNOTE: JUDGMENT:

J U D G M E N T Punchhi, J.

Whether the plea of constructive res judicata was rightly raised against the appellant, in the facts and circumstances of this case, is the significant question, which arises for determination in this appeal by special leave, against the judgment and decree dated 13-8-1974 of <ORG> at Chandigarh, in Regular First Appeal No.156 of 1965.

Supportive of the abovesaid appeal is a highly belated special leave petition, invited by this Court on 6-12-1990 from the appellant, against the judgment and order dated 5- 2-1962 of <ORG> at Chandigarh in Writ Application (Civil) No.1061 of 1961, in circumstances which we will mention later.

These can conveniently be disposed of by a common order.

The facts involved are not in dispute. A brief resume thereof will suffice. The appellant, <NAME> joined service in the erstwhile Patiala State in May 1941. On the formation of <ORG> State he was taken as an Assistant with effect from September 1, 1956. On the merger of <ORG> with the State of Punjab, he was integrated as an Assistant in <ORG> at Chandigarh, in <ORG>. Having completed ten years qualifying service he was compulsorily retired on January 6, 1961 from the service by an order in the following terms:

"ORDER OF THE GOVERNOR OF PUNJAB Sanction is accorded under the provisions of Rule 5.32(b) of the Punjab Civil Services Rules, Volume II, to the compulsory retirement from <ORG>, <ORG>, <ORG> with immediate effect.

2. He will be entitled to such proportionate pension and death-cum- retirement gratuity as may be admissible under the rules.

Chandigarh Dated the sd/-

6th January, 1961 <NAME>, Chief Secretary to <ORG>.

Punjab"

The representations of the appellant to the <ORG> and memorial to the Governor brought him no relief. Thereafter he moved <ORG> in Writ Application No.1061 of 1961 praying for quashing of the order dated January 6, 1961 retiring him compulsorily. The writ petition came up for hearing before a division bench consisting of <NAME> and <NAME>, JJ. The impugned order of compulsory retirement was challenged by him on a variety of grounds inter-alia urging that he was not governed by Rule 5.32 of the Punjab Civil Service Rules, Volume II and that rather he was governed by the new Pension Rules. All the pleas of the appellant were repelled. It was factually noted by the Bench that Rule 5.32 of the Punjab Civil Service Rules, Volume II clearly contemplated the existence of power in the <ORG> to retire a permanent servant compulsorily after 10 years of qualifying service. The writ petition was dismissed on February 2, 1962. It is worth bearing in mind that the appellant did not at that stage question the validity of Rule 5.32 and <ORG> too on its own did not engage itself to the question. The matter rested there.

The scenario changed thereafter. <CITATION> . [AIR 1964 SC 600] this Court was called upon to consider the validity of Rules 148(3) of the Railway Rules. These Rules authorised the termination of service of the railway employee by serving him with a notice for a requisite period, or paying him salary for the said period, in lieu of notice. This Court held that a person who substantively holds a permanent post had a right to continue in service subject to two exceptions, i.e., (i) superannuation; and (ii) compulsory retirement. The second exception was affirmed by this Court with the reservation that Rules of compulsory retirement would be valid if having fixed a proper age of superannuation, they permit compulsory retirement after putting in a minimum period of service. This Court observed that if the compulsory retirement permitted the authority to retire a public servant at a very early stage of his career, the question whether such a Rule would be valid might have to be considered on a proper occasion.

Encouraged by the decision in <NAME> case, the appellant on February 24, 1964, filed a suit in <ORG>, Patiala for a declaration that the order of compulsory retirement dated January 6, 1961, passed as it was under Rule 5.32 of the Punjab Civil Service Rules, Volume II, after ten years of qualifying service, was invalid, and that he should be treated to have continued in the service of <ORG>, enjoying all the necessary rights and benefits thereof. He also claimed the additional relief regarding payment of pay etc. Shortly after the institution of the suit, on April 1, 1964, this Court in <CITATION> . [1964(7) SCR 587] got the opportunity to apply the principles evolved in <NAME> case to a compulsory retirement case under the second proviso to Article 9.1 of the Pepsu Service Regulations as amended by a notification dated January 19, 1960. The said proviso empowered the Government retaining an absolute right to retire any Government servant after he had completed 10 years qualifying service without giving any reason and the government servant any right to claim special compensation on this account. This right however was not to be exercised by the Government except when it was in public interest to dispense with further services of a Government servant, such as on account of inefficiency, dishonesty, corruption or infamous conduct. This Court took the view that it was not permissible for a <ORG> while reserving to itself the power of compulsory retirement by framing Rules prescribing a proper age of superannuation to frame another one giving it the power to compulsory retire a permanent government servant at the end of ten years service, for that Rule cannot fall outside Article 311(2) of the Constitution.

Undisputably the Pepsu Regulation in question was identical to Rule 5.32 of the Punjab Civil Service Rules, Volume II. Since the suit of the appellant was based on the law as declared by this Court in <NAME> case and later on <NAME> case, the State of Punjab took up the plea in its written statement that the suit, because of the earlier decision in the writ application, was barred by principles of res-judicata. The appellant reacted to the defence by stating that the prevailing view of <ORG> was that a judgment in a writ petition did not operate as res-judicata and so he should get a decree in his favour. <ORG> thus on the issue of the suit being barred by principles of res-judicata or not, ruled in favour of the appellant on the basis of the view then prevailing in <ORG>. On the other issue, whether the order dated January 6, 1961 of compulsory retirement was illegal, void etc. the Court ruled that since Article 9.1 of the Pepsu Regulations had been struck down in <NAME> case and since Rule 5.32 of the Punjab Civil Service Rules, Volume II was identical in nature, the latter Rule therefore was invalid and consequently the impugned order of compulsory retirement passed thereunder was illegal and invalid. As a necessary consequence the suit of the appellant was decreed. He was granted the declaration that his compulsory retirement was illegal and consequently a decree for Rs.11321.75 as arrears of salary etc. with costs.

The State of Punjab went up in Regular First Appeal before <ORG> raising one and the only one point that the suit of the appellant was barred by principles of res-judicata, and consequently the order of compulsory retirement of the appellant could not be upset. The matter was placed before a division bench consisting of <NAME> and <NAME>, JJ. who after considering the matter, on the basis of the case law by then developed, referred the following question of law for decision by a Full Bench:

"Whether the decision of <ORG> declining to issue a writ of mandamus on the assumption that a statutory rule was valid, operates as res-judicata in a subsequent suit instituted after the statutory rule had been declared as unconstitutional by <ORG>"

In <ORG> constituted, the same learned Judges were members, the added Presiding Judge being <NAME> The learned Judges of <ORG> could not agree to the answer and thus they differed. <NAME>, J. answered the question formulated in the affirmative and <NAME> agreed with him. <NAME>, J. however answered the question in the negative. The decision was made on May 8, 1974 per majority and the question was answered in the affirmative. The case was ordered to go back to <ORG> for decision. Then <ORG> consisting of <NAME> and <NAME>, JJ. on August 13, 1974 allowed the appeal of the State of Punjab following the dictum of <ORG>. Aggrieved against the said decision, the appellant sought leave and so Civil Appeal No.632 of 1975 is before us to challenge principally the view of <ORG> of <ORG>.

The aforesaid appeal appears to have been heard for quite sometime on 6-12-1990 by a three-member Bench, as would appear from the Court Proceedings extracted below. The bench was goaded to invite a special leave petition by the appellant against the order dated 5-2-1962 of <ORG> in Writ Application No.1061 of 1961 accompanied by an appropriate application for condonation of delay. The Court Proceedings dated 6-12-1990 read thus:

"We have heard this appeal for some time. In the meantime we think it will be better if the petitioner is advised to file a special leave petition from the order of <ORG> dated 5.2.1962 in writ petition No.1061/61 with an appropriate application for condonation of delay. If that petition were to be accepted then perhaps many of the points which are raised in this civil appeal may not be necessary to be gone into. In this view of the matter, we adjourn this appeal for a period of 8 weeks. Counsel should file the SLP within three weeks from today and serve a copy on the counsel for the State of Punjab. The counsel will so arrange the papers that when the matter is listed, both the civil appeal and SLP are ready for final hearing."

The step of the three-member <ORG> so taken reveals its mind as reflected in the above proceedings. Their Lordships wanted to do substantial justice. It was thought better to advise the petitioner to file a special leave petition. As we view this order, having invited the petitioner to file the special leave petition, it is no longer advisable or appropriate for us to retrace back the step put forward by the three-member <ORG>. It is significant to recall that the writ application was dismissed on February 5, 1962 and the moment <NAME> case appeared on the scene, the appellant on February 24, 1964, within limitation, brought forward his suit which got strengthened by <NAME> case appearing within a couple of months of its filing. The appellant-special leave petitioner was thus bonafide pursuing an appropriate remedy for all these years. In these circumstances, we think that an appropriate case for condonation of delay of the intervening period has been made out. We, therefore, allow CC 11644/91 and condone the long durated delay in these exceptional circumstances. On doing so, we grant leave to appeal. The appeal thus arising and the Civil Appeal No.632 of 1975 may now be disposed of together.

As said before it has never been disputed that Rule 5.32 of the Punjab Civil Service Rules, Volume II is identical in text, terms and purport with the second proviso to Article 9.1 of the Pepsu Service Regulations. <NAME> case thus would mandate us to hold that Rule 5.32 of the Punjab Civil Service Rules, Volume II should meet the same fate, holding that the Rule be struck down as invalid since it contravenes Article 311(2) of the Constitution. Holding so the order of compulsory retirement of the appellant dated January 6, 1961 is struck down and the appellant is held entitled to restoration of the decree of <ORG>.

Putting aside for the moment the course above-adopted, let us otherwise examine the view of the Hon'ble Judges of <ORG> on the question formulated. It is well known that the general principle underlying the doctrine of res-judicate is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities, and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fairplay and justice. These principles stand enunciated in <CITATION> [1962(1) SCR 574]. This court in <CITATION> [1963 (Supp.)(1) SCR 172] opined that constructive res- judicata was an artificial form of res-judicata enacted by Section 11 of the Code of Civil Procedure and it should not be generally applied to writ petitions filed under Article 32 and Article 226 of the Constitution. The court then had the occasion to point out that when a matter related to taxation and assessment levied for a different year, the doctrine of res-judicata was itself inapplicable. This <ORG> still spelled out the binding effect of a decision made under Article 141 of the Constitution as follows:

"If for instance, the validity of a taxing statute is impeached by an assessee who is called upon to pay a tax for a particular year and the matter is taken to <ORG> or brought before this Court and it is held that the taxing statute is valid, it may not be easy to hold that the decision on this basic and material issue would not operate as res judicata against the assessee for a subsequent year. That, however, is a matter on which it is unnecessary for us to pronounce a definite opinion in the present case. In this connection, it would be relevant to add that even if a direct decision of this Court on a point of law does not operate as res judicata in a dispute for a subsequent year, such a decision would, under Art.141 , have a binding effect not only on the parties to it, but also on all courts in India as a precedent in which the law is declared by this Court. The question about the applicability of res judicata to such a decision would thus be a matter of merely academic significance."

<NAME>, C.J. who authored the judgment in the above-quoted case of <ORG> case, later in <CITATION> [1965(1) SCR 636] yet applied the principles of res judicata holding that if the doctrine of constructive res judicata was not applied to writ proceedings, it would be open to a party to take one proceeding after another and urge new grounds every time, which was plainly inconsistent with the considerations of public policy. This decision was followed in <CITATION> [1977(3) SCR 428].

On another facet of res judicata, this Court in <CITATION> [1970(3) SCR 830] had the occasion to observe as under:

"A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue.......A decision on an issue of law will be res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceedings, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the <ORG> to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law." (emphasis supplied) When this <ORG> strikes down a statutory provision holding it to be unconstitutional, it derives its authority to do so under the Constitution. Under Article 141 , the law declared by it is of a binding character and as commandful as the law made by a legislative body or an authorised delegee of such body. The <ORG> is thus a "competent authority" within the scope of the words above emphasised. On the other hand the majority view expressed in the <ORG> decision that "the <ORG>s of record including the Supreme <ORG> only interpret the law as it stands but do not purport to amend the same.

Their Lordship's decisions declare the existing law but do not enact any fresh law", is not in keeping with the plenary function of <ORG> under Article 141 of the Constitution, for the <ORG> is not merely the interpreter of the law as existing but much beyond that. The <ORG> as a wing of the <ORG> is by itself a source of law. The law is what the <ORG> says it is. Patently the High <ORG> fell into an error in its appreciation of the role of this <ORG>.

Bearing the above principles in mind what at best was said by the State of Punjab was that failure to raise the constitutionality of Rule 5.32 in the writ petition preferred by the appellant would imply, on the principle of "might and ought", that the opportunity of controverting the matter had been lost and that it should on the principles of constructive res judicata be taken that the matter had been actually raised and adversely decided. But in <ORG> v. <NAME> and Others [1986(1) SCC 100], this Court has taken the view that where a matter has been constructive in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided.

It would then have to be seen the twin play of the notion of deemed constitutionality and bar of constructive res judicata. Raising the constitutionality of a provision of law, as it appears to us, stands on a different footing than raising a matter on a bare question of law, or mixed question of law and fact, or on fact. There is a presumption always in favour of constitutionality of the law. The onus is heavy on the person challenging it. It is by the discharge of onus that the presumption of constitutionality can be crossed over. When a person enters a <ORG> for relief and does not challenge the constitutionality of the law governing the matters directly and substantially in issue, it only means and implies that he goes by the presumption of constitutionality. He cannot on this stance be deemed to have raised the question of constitutionality and the question of constitutionality to have been decided against him and such matter to have been directly and substantially in issue. The constitutionality of the Rule relating to compulsory retirement cannot be deemed to have been questioned and decided against the appellant on the principles of "might and ought" or it being "directly and substantially in issue". It cannot be taken as a rule that one of the pleas, either by the plaintiff or the defendant, in every suit or proceeding, must of necessity relate to the constitutionality of the law on which the cause is founded or defended in order to obviate the plea of constructive res judicata being raised in an eventuality. It cannot also be taken as a rule that constitutionality of the law involved is a matter directly and substantially in issue, and if not raised renders a mute decision in favour of its constitutionality barring the plea being raised in a subsequent suit. If there be read such a rule in all civil litigation, it would, to our mind, be against public policy vexing and burdening the courts to go into the constitutionality of provisions of law in every case. When under the impugned rule, the <ORG> assumed to itself the power to compulsorily retire a permanent government servant after ten years of qualifying service, the court's act of striking that Rule as unconstitutional is the law which appeared on the scene, not only to break the presumption of constitutionality but to declare it void. In a sense the offending provision was never there and in the other it was henceforth not there. In either event, it would be within the ambit of the emphasised words in <NAME> case.

It thus seems to us that the view of <ORG> of <ORG> was erroneous on first principles. In the question referred to <ORG>, no assumption could be made that a statutory Rule was valid when the court declined to issue a writ of mandamus, or its being treated as res judicata for the purpose of the subsequent suit. <NAME> case did not merely stop at dealing with decisions relating to the jurisdiction of the <ORG> trying the earlier proceeding, but had further gone to say that the principles of constructive res judicata would not apply when the law has since the earlier decision been altered by a competent authority. And in the context, this <ORG> is a competent authority to alter the law when it declares it to be unconstitutional. Alteration does not limit alone to change therein but is inclusive of the power of striking down. Thus even if we were to decline the belated special leave petition of the appellant against the judgment and order of <ORG> dated 5-2-1962 passed in Writ Application No.1061 of 1962, the appellant would be entitled to succeed in having the impugned order of <ORG> upset in Civil Appeal No.632 of 1975, for the suit of the appellant could not, in any event, be held to be barred by principles of res judicata.

Accordingly we would compositely allow both the appeals, set aside the respective judgments and orders of <ORG> holding that the order of compulsory retirement of the appellant under Rule 5.32 was void and inoperative and the appellant entitled to the meaningful relief of arrears etc. as claimed by him in the plaint, and in accordance with the judgment of <ORG>. The appellant shall get his costs throughout only in Civil Appeal No.632 of 1985.