TOWN AREA COMMITTEE JALALABAD Vs. JAGDISH PRASAD

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment of the Allahabad High Court upholding the judgment and findings of the District Judge and the Sub-judge decreeing the plaintiff's suit for wrongful dismissal. In the view we take it is not necessary to narrate the detailed facts which are contained in the judgments of the Courts below. All the Courts have concurrently found as a fact that the respondent No. 1 was not given any opportunity of showing cause against the action proposed to be taken against him viz. dismissal from service. This is a finding of fact and we cannot interfere with the same in special leave. Mr. Agarwala has, however, raised two points before us. In the first place, he submits that Art. 311 of the Constitution does not apply to the Respondent No. 1 and, therefore, it was not necessary for the Chairman to give detailed opportunity to the appellant to prove his defence. The Courts below have however found that although the chargesheet was submitted against the respondent no. 1 and he had denied the same, yet no evidence was led by the department to prove the charges against him, nor was respondent No. 1 allowed to cross-examine the witnesses, nor was he given an opportunity for proving his defence and establishing his innocence. The notification dated 19th March, 1947 spelt out the following rule:-

(2.) It was, then, submitted that the suit could not be decreed because the order of dismissal had merged in the revisional authorities - the District Magistrate and the Government - and unless the orders of these authorities were set aside, the plaintiff cannot get the order of wrongful dismissal set aside. This point has been raised for the first time in special leave in this Court. The point was undoubtedly one which was a mixed question of fact and law and if raised at the first possible opportunity at the Trial Court, could have been repelled by the plaintiff by amending his plaint and including a relief for setting aside the order of the revisional authorities. To allow the appellant to raise this point at this stage, would result in grave and substantial injustice to the plaintiff and to defeat his claim on a most technical ground which could not be pleaded because of gross neglience on the part of the appellant. For these reasons, therefore, we do not permit the appellant to raise this point at this stage. No other point was pressed before us.