1. This application in revision by the plaintiff is directed against the order of the Additional Subordinate Judge, first court, Arrah, holding the onus to prove issues 5 and 7 to be on the plaintiff and directing him to begin evidence on those points.

2. The petitioner instituted a title suit against the opposite parties for declaration that the orders of suspension dated the 10th of September, 1949, and of dismissal dated the 28th of May 1950, were illegal and ultra vires, and for recovery of Rs. 8861 & ??? annas being arrears of salary from September, 1949, to December, 1951. The petitioner was lecturer in the H.D Jain College, Arrah (Defendant No. 1.).

3. He was appointed in August, 1943, and was made, according to his case, permanent on the 19th of December, 1943. Later on, it is stated, he was confirmed and in course of time he became the Head of the Economics Department in the College. On the 4th September, 1949, there was some clash between the students of the College and the proprietor of a hotel at Arrah as a result of which a first information report was lodged by the students alleging that the petitioner was responsible for the occurrence. The Police submitted final report whereupon a protest petition was filed on behalf of the students before the Sub-divisional Officer. He also found the case to be maliciously false and dismissed the complaint on the 17th of January, 1950. Thereafter, there were some disputes between the petitioner and the Secretary of the College, and ultimately it is said that the petitioner was suspended and later on dismissed without any reasonable cause.

4. The defence taken by the College is that the orders of suspension and dismissal were proper and justified inasmuch as the petitioner was guilty of misconduct and the enquiry committee found him to be so.

5. The suit was ultimately posted for hearing on the 5th of April, 1954, on which date it was taken up and after both the parties stated their respective case at length they were also heard on the question as to who was to begin evidence. The learned Additional Subordinate Judge held that the petitioner was to begin and consequently he was called upon to adduce evidence. Against that order the petitioner came up in revision to this Court in Civil Revn. No. 311 of 1954(A), which was dismissed in limine. Certain observation was made by Rai. J. while dismissing the application, which is to the following effect:—

“It is urged on behalf of the petitioner that the court below has wrongly placed the burden of proof on the plaintiff in respect of all the issues framed in the case. I do not find anything of the kind in the order dated the 5th April, 1954, passed by the trial Court. The trial court has asked the plaintiff to begin evidence in accordance with the provisions of O. 18, R. 1 of the CPC.

It has nowhere said that the burden of proof on all the issues is on the plaintiff. If the question of burden of proof arises subsequently during the trial, it will be for the trial court to decide it in accordance with law. With these observations the application is rejected.”

6. Thereafter, the suit was taken up for hearing on the 2nd of August, 1954. A question then arose as to on whom the onus lay with regard to issues 5 and 7 and as to who was to adduce evidence at the first instance on those two issues. Issue No. 5 runs thus:

“Was the order of suspension and dismissal passed by the Governing Body of the College unwarranted and without any reasonable and sufficient cause or without jurisdiction or tainted with malice and is the plaintiff entitled to challenge their decision?”

Issue No. 7 is as follows:

“Was the Governing body of the H.D Jain College, Arrah, legally constituted at all material dates and was it entitled to and justified in suspending the plaintiff and initiating and carrying on proceedings, particularly after the dismissal of the complaint in that behalf by the court of justice?”

7. The learned Additional Subordinate Judge, after hearing the parties, held that the onus lay on the plaintiff to prove his case on these two issues also and, therefore, directed him to adduce evidence on those points. The contention raised by the petitioner was that on these two issues the onus lay on the defendant who is to give evidence at the first instance and the petitioner should be given an opportunity to adduce evidence in rebuttal thereof. That prayer of the petitioner was rejected. He has, therefore, come up to this Court in the present civil revision application.

8. Apart from other points that may arise for consideration in the suit, one of the question, and, in my opinion, a most important question, to be dealt with by the court is whether the dismissal of the petitioner was justified in the circumstances of the case. The petitioner has averred that he was not guilty of any misconduct and his dismissal was absolutely unjustified. That averment has been traversed, and it has been stated that for various reasons given in the pleading the dismissal of the petitioner was justified.

9. The decision of the two issues referred to above will mostly depend upon the decision of the question whether the dismissal was justified or not. The circumstances on which it could be argued that the dismissal of the petitioner was justified are within the special knowledge of the defendant, and it is for it, therefore, to bring on record the materials on which it relies to justify the order of dismissal. Section 106 of the Evidence Act lays down that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

10. In the present case the circumstances which led to the order of dismissal are, as already observed, within the special knowledge of the defendant. The plaintiff has simply averred, and I think he could not do more than that, that he was not guilty of any misconduct and his dismissal was, therefore, without any reasonable cause. No doubt, he has said that this dismissal was malicious.

11. That is, however, a matter of inference from the fact that he not having been guilty of any misconduct, had been wrongly dismissed. Whether there was malicious dismissal or not will mostly depend on whether there was any reasonable or probable cause for the dismissal of the petitioner or not. In my opinion, therefore, Section 106 of the Evidence Act throws the onus on the defendant to prove those circumstances with regard to the issues referred to above.

12. No direct authority on the point has been placed before me by either party, but the view that I have taken gains support from certain observations made in the cases placed before me by Mr. Tarkeshwar Nath on behalf of the petitioner. In M. D'Cruz v. Secy. of State for India in Council, 40 Cal WN 865 (B) the plaintiffs instituted various suits claiming various sums under the heads, salary, balance of provident fund, etc. as damages for breach of contract committed by the East Indian Railway Co., in wrongfully dismissing them.

13. Subsequently they ‘amended’ their plaints and claimed from the defendant not only for damages occasioned by the breach of contract alleged against the East Indian Hallway Co., but also for damages occasioned by the defendant's own failure and refusal to employ the plaintiffs as from 1st January, 1925, in terms of the offer made and accepted in August, 1924.

14. By his written statement the defendant denied that any liability for such claims as those in suit, had ever passed or become vested in him, and it was pleaded that the plaintiffs were justifiably dismissed inasmuch as they were guilty of serious misconduct, and also because, when called upon to furnish explanations, they made statements which were false in material particulars. Several issues were framed one of which was:

“were the plaintiffs guilty of breach of duty and misconduct with reference to the five consignments in question?”

15. A question arose as to on whom the onus lay to prove the alleged misconduct and who was to begin evidence. It was held in that case that having regard to the language of O. 18 of the CPC, the onus on the issue of fact, namely, the alleged misconduct of the plaintiffs, lay upon the defendant. In The Andhra University v. Durga Lakshmi Manoharam, AIR 1951 Mad 870 (C) the plaintiff sued for a declaration that the orders of dismissal were unjust and illegal.

16. The defendant resisted the suit by pleading that the orders were just and legal. The Additional Subordinate Judge who heard the suit held the dismissal to be wrongful for want of an inquiry by the Syndicate notwithstanding the fairness of the inquiry by the Vice Chancellor and on some other ground. The suit was however, dismissed on the ground that no declaratory relief could be granted to the plaintiff who had already earned employment elsewhere.

17. On appeal by the plaintiff the learned District Judge observed in the course of his judgment that the jural relationship between the defendant and the plaintiff was the ordinary one of master and servant under which the servant can always be dismissed for misconduct which however is a matter for proof by the master in court when the dismissal is challenged.

18. The learned District Judge remanded the case to the court of first instance for fresh disposal of the suit after framing an additional issue. Against the order of remand the defendant preferred an appeal to the High Court. That appeal was dismissed by the High Court. No one appears to have argued against the observation made by the District Judge referred to above.

19. In Lush v. Russel, (1850) 155 ER 87 (D) an action was brought by the plaintiff, a servant, for dismissing him during the period for which he was hired, viz., four years and the plaintiff on his declaration alleged that the defendant refused to permit the plaintiff to continue in his service during the term and wrongfully dismissed him therefrom without any reasonable cause.

20. It was pleaded that after the making of the agreement, and before the discharge and dismissal, the plaintiff conducted himself in an improper and disobedient manner, and disobeyed the defendant's lawful orders. On those pleadings it was held that the onus lay on the defendant to prove that his act of dismissal was justified. The following observation of Parke, B. may be ‘usefully’ quoted in this connection:—

“Now, there cannot be any doubt that this form of a traverse does in express terms deny the want of reasonable cause; and therefore, that question must be disposed of by the jury. Whether it throws the burden of proof on the wrong party is immaterial in the present inquiry; if it does, it is an additional reason for demurring to it; but it nevertheless puts in issue the want of reasonable cause, however informally.

21. We think, however, that on the trial of the issue the onus probandi would be on the defendant, on the ground that he had the affirmative of the proposition to maintain, and that the defendant ought to justify the act of dismissal, which is prima facie a breach of covenant.”

22. In my opinion, therefore, the position is perfectly clear that it is for the defendant to establish the justification of the orders of suspension and dismissal and the onus on the two issues referred to above lay on him.

23. A Bench decision of this Court in Bir v. Raghubar, ILR 26 Pat 393 : (AIR 1947 Pat 469) (E) has held that the correct placing of the onus of proof is a vital point of procedure and as such the incorrect placing of the onus amounts to a material irregularity within the meaning of Section 115 of the CPC. This Court, therefore, can interfere with the above orders passed by the learned Additional Subordinate Judge.

24. For the reasons given above, the application is allowed, the order of the court below dated the 2nd of August, 1954, is set aside and it is held that the onus with regard to the proof of fact covered under issues 5 and 7 lies on the defendant who must adduce evidence on those two issues at the first instance and the plaintiff must have a right to give evidence in rebuttal thereof. The petitioner is entitled to his costs.

25. Hearing fee Rs. 16.

V.R.B

26. Revision allowed.