TaxTMI 
TaxTMI 
TaxTMI 
1994 (2) TMI 300
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....which order had come to be upheld by District Judge, feeling aggrieved at which the High Court had been approached by way of second appeal. Another is a writ petition filed directly in this Court making a grievance about illegal termination of service and seeking a declaration that dismissal was void and non est. 3. The High Court dismissed the suit of the appellant on two grounds: (1) the civil court had no jurisdiction to entertain the suit; and (2) the suit was barred by resjudicata. 4. Shri Mehta appearing for the appellant contends that as the order of dismissal had come to be passed in violation of a mandatory require-ment, the view taken that the civil court had no jurisdiction is untenable in law. As to resjudicata it is urged that the stand taken by the High Court that this principle applied, because of earlier proceedings in the High Court in Writ Petition No. 23 of 1978, which gave, rise to LPA 43 of 1979 was misconceived. 5. Let us first deal with the question of jurisdiction. To decide this reference may be made to skeletal facts. These are that the. conduct of the appellant while serving as a clerk in the office of Commandant, Home Guards at Poonch came to be enqui....
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....ull and void. On the High Court being approached in second appeal, it allowed the same on the grounds mentioned above. 7. Let us now examine whether the view taken by the High Court that civil court's jurisdiction was barred is tenable. In taking this view the High Court has relied on section 20 of the Act which has provided that "Nothing done or purporting to have been done under this Act shall be called in question in any Court." 8. Shri Mehta urges that the finality given by section 20 of the Act could not have ousted the jurisdiction of civil court in the present case inasmuch as the dismissal order being a nullity, court's jurisdiction did not get barred because of the aforesaid provision. To bring home this submission of law, we are referred by the learned counsel to the Constitution Bench decision of this Court in Ram Swaup v. Shikar Chand, AIR (1966) SC 893 in which case the Bench while considering the effect of section 3(4) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 which had provided that "the order of the Commissioner under sub-section (3) shall, subject to any order passed by the Commissioner under section 7(F), be. final" opine....
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....with Shri Mehta that the High Court erred in law in holding that the civil courts' jurisdiction was barred, in as much there being violation of mandatory provision as contained in section 17(5) of the Act, it can well be said that the respondents had no jurisdiction to pass the impugned order and by doing so they committed a "jurisdictional error". 12. In so far as the second ground given by the High Court? the same being bar of resjudicata- it clear from what has been noted above, that there was no decision on merits as regards the grievance of the appellants; and so, the principle of resjudicata had no application. The mere fact that the learned single judge while disposing of the Writ Petition No. 23 of 78 had observed that:- "This syndrome of errors, omissions and oddities, cannot be explained any hypothesis other than the one that there is something fishy in the petitioner's version......" which observations have been relied upon by the High Court in holding that the suit was barred by resjudicata do not at all make out a case of applicability of the principle of resjudicata. The conclusion of the High Court on this score is indeed baffling to us, becaus....
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....graph 33 of the ECIL's case in which the Bench accepted that the law laid down in Ramzan Khan's case stating that the decision in that case was prospective would not apply to those cases where the service rules with regard to disciplinary proceedings has made it obligatory to supply a copy of the report to the employee. The present being such a case, Shri Mehta urges that the dismissal order has to be set aside by us in this proceeding itself, as the dismissal having been passed in violation of mandatory provision was null and void and a void order has no legs to stand. 15. We have duly considered the aforesaid submission and because of what is being stated later we would having to disappoint the learned counsel because, according to us, a view different from the one expressed in paragraph 31 of ECIL cannot be taken even in a case of the present nature. This is for the reason that violation of the mandatory provision at hand cannot be said to have per se rendered the order a nullity. 16. As to when violation of a mandatory provision makes an order nullity has been the subject matter of various decisions of this Court as well as of courts beyond the seven seas. These apart, there ....
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....ublic policy being involved, the benefit or advantage could always be waived. 19. What has been held in Indra Bai v. Nand Kishor, [1990] Supp 1 SCR 349. by a three Judge Bench speaking through Sahi, J. of this Court is still more clinching inasmuch as in that case the right conferred on a preemptee by section 8 of the Rajasthan Premption Act, 1966 requiring a vendor to serve notice on persons having right of pre-emption as a condition of validity of transfer was held as amenable to waiver. It was pointed out that the nature of the interest created by the aforesaid section was a right of the party alone and not of the public as such. It was then observed that if it be a right of the party alone it is capable of being abnegated, as such a right cannot be said to involve any interest of community or public welfare so as to be in mischief of public policy. 20. Having seen the pronouncements of judicial fora, we can now inform ourselves as to the view of the reputed authors on interpretation of statutes as well as administrative law. We may start with what has been stated in Maxwell's "The Interpretation of Statutes". This aspect has been dealt at pages 328-330 (12th Edition....
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....alt with this aspect at page 267 of the sixth edition of his treatise wherein he has quoted what Lord Denning, MR said in Wells v. Minister of Housing-and Local Government, 1967 (1) WLR 1000, which is as below: - "I take the law to be that a defect in procedure can be cured, and irregularity can be waived, even by a public authority, so as to render valid that which would otherwise be invalid." 25. We may end this journey into the field of law by referring to the meaning of the words "irregularity" as given at page 469 of Volume 22A of "Words and Phrases" (Permanent Edition) and of 'nullity' at pages 772 and 773 of Volume 28A of the aforesaid book. As to "irregularity" it has been stated that it is "want of adherence to some prescribed rule or mode of proceeding"; whereas "nullity" is "a void act or an act having no legal force or validity" as stated at page 772. At page 773 it has been mentioned that the safest rule of distinction between an "irregularity" and a "nullity" is to see whether "a party can waive the objection: if he can waive, it amounts to irregularity and if he cannot, it....