1. HAMZO KHAN M. KURESHI (CHAIRMAN).-This appeal under section 6 of the Act was filed by the Government on 17-2-1975 after their appeal in the High Court abated on 2u-11-1974. The respondent No.1 was dismissed from service by Superintendent of Police, Tharparkar (appellant No. 41 on 5-1- 1965 as a result of two inquiries for deserting his duties on 2-11-61 and remaining absent from headquarter without permission from 13th to 24th May 1964 held and proved against him. In his report, the Inquiry Officer, D. S. P. Karam Illabi, recommended a major penalty against the respondent No. 1, who was working as a Prosecuting Sub-Inspector at Chachro from 16-10-1961. Two separate inquiries were held against the respondent and he was dismissed from service in each case by two separate orders both passed on 5-1-1965. Two separate show-cause notices and charge-- sheets along with statement of allegations signed by the Superintendent of Police were served on the respondent before the two inquiries were held against him by the Dy. Superintendent of Police. Both the inquiries were held expert because the respondent No. 1, in spite of service of notice and his undertaking to attend at Mithi, the headquarter of the Dy. Superintendent of Police, chose to remain absent. After receiving the reports from the Inquiry Officer, the Superintendent of Police issued final show-- cause notices to the respondent No. 1. He sent his explanation to the Superintendent of Police but the latter found it unsatisfactory and removed him from service. The respondent No. I, alleged prejudice against the Inquiry Officer but nothing was alleged against the Superintendent of Police who passed the impugned order against him. 1he respondent filed two separate appeals before the Dy. Inspector-General of Police, Hyderabad (appellant No. 3) but they were dismissed on 27-10-1965. The respondent No. 1, then filed review petition before the Inspector General of Police, West Pakistan, Lahore but it was dismissed on 18-4-1966. He moved mercy petition before the Inspector General of Police, West Pakistan but it was also rejected on 3-6-66.
2. The respondent then filed writ petition in the West Pakistan High Court Karachi Bench, which was dismissed to limine on 9-11-67. There after respondents applications for leave to appeal was dismissed by the Supreme Court of Pakistan on 20-9-1968. The respondent No. 1, then filed the Civil Suit against the appellants in the District Court, Hyderabad on 6-8-1969 which was decreed in his favour by the learned III Additional District Judge, Hyderabad on- 20-7-1973. The learned Judge upheld the contention of plaintiff'/respondent that the order passed against him by the Superintendent of Police was mala fide because the Inquiry Officer, Mr. Karam Illahi was biased against him and he was not given reasonable opportunity to defend himself. The Government filed appeal against the judgment and decree passed by the learned Additional District Judge which was pending in the High Court when the abatement order was passed on 20-11-1974.
3. The case of the appellants (Government) is that the Civil Suit of the respondent was time-barred and that it was hit by the principle of "res judicator". They assert that for the purpose of limitation, the suit would be governed by Article 14 of the Limitation Act and not by Article 120 of the said Act as held by the civil Court. They further state that the writ petition filed by the respondent No. 1, was disposed of by the High Court on merits hence the Civil Suit filed by him was hit by the principle of res judicator. They urge that the Superintendent of Police was legally competent to pass the dismissal order and had admittedly no prejudice against the respondent hence the impugned order may be an irregular or wrong order but it cannot be called a void order.
4. Respondent No. 1, Ghulam Rasool has contested the appeal. He alleged that the Inquiry Officer, D.S.P. Karam Illahi, was prejudiced against him hence he held both inquiries in his absence in contravention of the service rules of 1960. He alleged that no notice of inquiry was served on him hence both the orders of dismissal passed by the Superintendent of Police were illegal and void. He says the order of dismissal was inconsistent with the charge-sheet hence it was void. He has stated that the High Court had not decided his writ petition on merits hence his suit was competent.
5. None of the parties had produced before us the order of the High Court passed in writ petition of the respondent. We therefore directed tae respondent No. 1, to produce the same. He has produced the certified copy of the said order before us. It was pass by the Division Bench on 9-11-1967 and it reads as under: "The only grounds which have been pressed before us are with regard to the sufficiency of evidence and with regard to the proof of the charges against the petitioner. We are afraid we cannot go into that question.. The finding of the appellate authority should be conclusive upon that point.
6. Mr. Aftab Ahmed at one time during the arguments stated that he was going to press the point that reasonable opportunity was not given to him to show case. We asked him again and again to substantiate this ground but he was unable to do so.
7. The petition is dismissed in limine.
8. After the above said order of the High Court the respondent filed the suit in the District Court Hyderabad on 6-8-1969, which was decreed on 20-7-1973. The same objections of limitation and res judicator were raised before the learned Additional District Judge but he rejected the same. The learned Additional District Judge vide issue No. 5-A of the suit decided that the suit was not bit by the principle of res judicator as the High Court bad disposed of the writ petition in limine. We do not contribute to the same view. After careful consideration of the order of the High Court and the argument of the learned Additional District Judge, we have come to the conclusion that the writ petition of the respondent was disposed of on merits after considering the questions raised in the petition hence the suit of the appellant was barred by the principle of "res judicator" laid down in section 11, C. P. C. For this opinion we have got the authority in PLD 1969 Kar. 597 in which, their Lordships have observed as under.
9. "Thus whether a writ petition was dismissed in limine and an order is pronounced in that behalf, whether or riot the dismissal would constitute a bar would depend upon the nature of the order. If the order considers the questions raised in- the petition it would be an order on merits. On the other hand, if the order does not consider all the aspects of the case arid disposes of the matter or some technical ground it cannot be said to be an order on merits, so as to attract the principle ofres judicator--- The order of the High Court passed in the writ petition of the respondent clearly indicates that it was decided on merits. After considering the points raised by the respondent in his writ petition their Lordships have clearly held that the findings of the appellate authority regarding the sufficiency of evidence and the proof of the charges against the petitioner were conclusive and that there was no proof that no reasonable opportunity was given to the respondent by the authorities concerned. In the light of those findings the suit of the respondent was not maintainable as it attracted, A the principle of res judicator. The learned Additional District Judge; Hyderabad had therefore no jurisdiction to entertain the suit. He had no reason to say that no reasonable opportunity of defence was given to the plaintiff/respondent when the High Court had held that in spite of their Lordship's repeated directions to substantiate the said ground, the respondent's advocate could not do se. It shows that this aspect of the case was also considered by the High Court before dismissing the writ petition in limine. The writ petition was dismissed on merits and the Civil Suit of the appellant was clearly barred. The judgment and decree passed by the learned Additional District Judge was therefore without jurisdiction and is hereby set aside.
10. The suit of the respondent was also time-barred because Article 14 of the Limitation Act would be applicable to his case. He should have filed the suit within one year from the date of his appeal was dismissed by the Deputy Inspector-General of Police on 27-10-1965. He filed the sui: on 6-8-1969. It is an admitted position that tie Superintendent of Police was competent to pass the order of dismissal and that he himself had no mala fides against the respondent No. I. The mala fides are alleged against the Inquiry Officer D. S. P., Karam Illahi, who was the subordinate of the Superintendent of Police. The appellant had made the said allegations against the Deputy Superintendent of Police in his reply to the final show-cause notice but those contentions were not accepted by the Superintendent of Police or by the appellate authority, the Deputy Inspector- General of Police. It is not possible to believe that both of these Officers could have been influence by the Deputy Superintendent of Police. They were higher authorities and independent persons.
11. They are supposed to have applied their minds to the case of the appellant before passing the impugned orders against him. According to the observations of the High Court, the findings of these authorities regarding sufficiency of evidence and the proof of charges against the appellant would be conclusive. There is no scope to think that the order passed by the Superintendent of Police was void because he was authorized by law to pass such orders. After considering the facts of the case as reported to him by the Inquiry Officer, he came to the conclusion that there was suffi--cient evidence against the appellant to merit his dismissal. Such order cannot therefore be called illegal or void. Since the order was passed in his official' capacity by a competent authority having no personal prejudice against the respondent Article 14 of the Limitation Act would apply for the purpose limitation period of the suit. He had to file the suit within one year from the date of the order. Article 120 of Limitation Act is a residuary article. It applies where no period of limitation is provided elsewhere in the Schedule it applies where order was ab initio void i.e. "when it was passed by and authority not authorised by law to pass such order or the order is one which assuming the findings of fact given by the Administrative Authority to be correct, could not under the law have been passed or the order is mala fides, that is, it purported to have been passed under the cloak of power which could not have been exercised". (PLD 1960 Lab. 6411)
12. In this case the competency of the Superintendent of Police to pass `be impugned order is not challenged. The mala fides are also not alleged against him. It cannot therefore, be said that the order was void or that Arti--cle 120, Limitation Act would apply to the respondent's suit. His suit was time-barred as be was bound to file the suit within one year from the date of the order passed in appeal by Deputy Inspector-General of Police. To this extent the finding of the learned Additional District Judge is incorrect and his judgment should be set aside.
13. We, therefore, come to the conclusion that the suit of the respondent Ghulam Rasool was time- barred and that it was also hit by the principle of res judicata because the disputed facts were already decided by the High Court in the writ petition filed by the" respondent before instituting the civil suit. We, therefore, allow the appeal and set aside the judgment and decree passed by the learned Additional District Judge, Hyderabad dated 20-7-1973 and _11-R-1971 respectively. Each party is left to bear his own costs.