Choudhary, J.:— This application was made on behalf of the defendants against the order of the Additional Subordinate fudge, 1st Court, Patna, dated 16-2-1957, holding that the onus of proving the justification of the order of demotion of the plaintiff and his sub-sequent dismissal was upon the defendants, and they should begin to lead the evidence.
2. The opposite party instituted a suit on the allegation that the order of his demotion from the rank of Subedar Major to that of Sergeant on 14-11-1950, was illegal and ultra vires. He also prayed for a declaration that the order of dismissal dated 10-4-1953 was illegal and ultra vires on the ground that he was not given sufficient opportunity to show cause against that order and the statutory procedure was not followed. In the written statement the petitioners asserted that there was no order of the demotion made on 14-11-1950, and the opposite party did not hold the post of Subedar or Subedar Major permanently, but he was posted on officiating basis. With regard to the order of dismissal the defence was that sufficient opportunity was given to the opposite party to show cause, and the order of dismissal was legally valid. The material issues framed are as follows:
1. Is the suit bad on account of non-compliance with the provisions of Section 80 of the CPC?
2. Is the reversion of the plaintiff to his substantive post of Sergeant and his dismissal from service wrongful, unreasonable and arbitrary, illegal, void, ultra vires, without jurisdiction and inoperative as alleged by the plaintiff?
3. Was the plaintiff guilty of dereliction of duty, irregularities, gross misconduct and moral turpitude as alleged by the defendants?
4. Was the proceeding resulting in dismissal of the plaintiff tainted with irregularities and illegalities as alleged by the plaintiff?
5. Is the plaintiffs dismissal void, illegal, ultra vires, without jurisdiction and inoperative and is the plaintiff still continuing in service?
6. Is the plaintiff entitled to recover arrears of pay as claimed?
7. Was the plaintiff's dismissal mala fide and malicious and is the plaintiff entitled to damages on that account, and if so to what extent?
8. To what reliefs or relief, if any, is the plaintiff entitled?
3. It was contended on behalf of the opposite party in the trial Court that the onus was upon the petitioners to prove that there was reasonable and probable cause for the reduction in rank and the subsequent dismissal of the opposite party. The argument was accepted by the trial Court, and it was held that the petitioners should be asked to adduce evidence first because “the entire facts bearing on the points are within the special knowledge of the defendants, and also because it is the defendants who assert that the plaintiff's demotion and dismissal are justified”. The lower Court has also referred to paragraph 4 of the plaint where it is alleged that the order of the plaintiffs demotion was passed without giving any opportunity whatsoever to the plaintiff, and for this reason also the lower Court held that the entire onus was on the defendants to prove as to how the plaintiff's demotion was justified. In my opinion, the order of the learned Additional Subordinate Judge is vitiated by complete misconception of law on the question of onus. The crux of the plaintiff's case is that the order of demotion made on 14-11-1950 and the order of dismissal made on 10-4-1953 are both ultra vires and without jurisdiction on the ground that the necessary legal formalities were not complied with. It is also alleged on behalf of the plaintiff that the order of dismissal is mala fide. On this ground also a declaration is prayed for by the plaintiff that the order of dismissal is a nullity in the eye of law. With regard to the order of demotion the case of the defendants is that it is not really a case of demotion, because the plaintiff was not holding on substantive basis either the post of Sergeant or that of Subedar Major, and so no question of demotion of the plaintiff arose.
4. With regard to the order of dismissal, the case of the defendants is that the proper legal procedure was followed, and the order of dismissal was not legally invalid on the ground of any procedural mistake. It is the admitted position in this case that the plaintiff was actually served with the order of dismissal dated 10-4-1953. The grounds upon which the dismissal was based were stated by the plaintiff himself in paragraphs 6 to 10 of the plaint. It appears further from paragraph 9 that the plaintiff preferred an appeal against the order of dismissal to the Inspector-General of Police, but it was dismissed on 21-7-1953.
5. The plaintiff also alleges in paragraph 9 of the plaint that he made a representation to the Government of Bihar against the order of dismissal, but the petition was rejected by the State Government. In these circumstances, I hold that there is no question of application of Section 106 of the Evidence Act in this case and the burden of proof rests on the plaintiff with regard to the onus on the issues framed by the lower Court. In my opinion, the proper section to apply in this case is Section 102 of the Evidence Act, which states that “the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side”. With regard to the allegation of the plaintiff that the orders of demotion and dismissal were ultra vires because the procedure was not complied with, the onus certainly rests with him to show by proper evidence that the requisite legal procedure was not followed, and so the orders were vitiated, ultra vires and without jurisdiction.
6. Learned counsel on behalf of the opposite party referred to the allegation that the order of dismissal was challenged also on the ground of mala fides, but upon this issue also I am of opinion that the burden of proof is upon the plaintiff to establish the absence of reasonable and probable cause. In a somewhat similar case, Pestonji M. Mody v. Queen Insurance Co., ILR 25 Bom 332, it was held by the Privy Council that in an action for malicious prosecution the burden is upon the plaintiff, both as regards the malice and as regards the absence of reasonable and probable cause. It is clear, therefore, that in the present case the onus of pro villi that the orders challenged were mala fide is on the plaintiff. I, therefore, hold that the order of the learned Additional Subordinate Judge is erroneous and must be set aside.
7. Reliance has, however, been placed on behalf of the opposite party on the case of Ramesh Chandra v. H.D Jain College, Arrah, 1956 BLJR 59 : (AIR 1957 Pat 145), which was decided by me sitting singly. In that case, the petitioner was a Lecturer in the H.D Jain College, Arrah (opposite party No. 1) and was later on suspended and then dismissed. He, therefore, instituted a suit against the opposite parties for a declaration that the orders of suspension and dismissal were illegal and ultra vires, and for recovery of arrears of salary. His case was that he was suspended and then dismissed without any reasonable cause. The defence of the opposite parties was that the orders of suspension & dismissal were proper and justified inasmuch as the petitioner was guilty of misconduct. Issues Nos. 5 and 7 in that case were in the following terms:
“5. 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?
7. 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?”
When the suit was taken up for hearing, a point arose as to on whom the onus lay with regard to these two issues and as to who was to adduce evidence in the first instance on those issues. The trial Court held that the onus lay on the petitioner, and he was directed to adduce evidence on those issues. The petitioner, therefore, preferred a civil revision application in this Court, which was heard by me. It was argued before me on behalf of the petitioner in that case that the circumstances in which it could be held that the dismissal of the petitioner was justified were within the special knowledge of the opposite parties, and it was for them to bring on record materials to justify the order of dismissal. In support of that contention, reliance was placed on Section 106 of the Evidence Act which runs as follows:
“When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him”.
I accepted this contention and held that the onus lay on the opposite parties. This case no doubt, supports the contention of the opposite party in the present case, but, on a further consideration of the matter. I feel that my decision in that case requires to be reviewed. After having heard detailed arguments on the point advanced by counsel for the parties and on a deeper consideration of the question at issue, I am now of the view that my decision in that case on this point is not correct. Section 102 of the Evidence Act and the case of the Privy Council reported in ILR 25 Bom 332 (PC), a reference to which has already been made above, were not brought to my notice at the time of the hearing of that case, and I decided that case only on the language of Section 106 of the Evidence Act. I do not think Section 106 of the Evidence Act has any application to a case of this nature.
8. The test laid down in Section 102 of the Evidence Act makes it obligatory on the plaintiff to establish his case on the points referred to above. If no evidence is adduced by any of the parties, the suit, according to that test, must undoubtedly fail, and, as such, the burden of proof is on the plaintiff to establish his case if he wants to succeed. In my opinion the initial onus in such cases lies on the plaintiff. The decision in 1956 BLJR 59 : (AIR 1957 Pat 145), therefore, must be held to be incorrect, and is overruled.
9. The result, therefore, is that the application succeeds and the order of the Court below is set aside. It is held that the initial onus lies on the plaintiff-opposite party to establish his case on all the issues framed in the suit, and he is, therefore, to lead evidence in the first instance.
10. The application is, accordingly allowed; but in the circumstances of the case, there will be no order as to costs.
11. Ramaswami, C.J:— I agree.
LC/H.G.P
12. Application allowed.