STATE OF BIHAR Vs. SHIVA BHIKSHUK MISTA

JUDGEMENT

(1.) This application was made on behalf of the defendants against the order of the Additional Subordinate Judge, 1st Court, Patna, dated 15-2-1957, holding that the onus of proving the justification of the order of demotion of the plaintiff and his subsequent dismissal was upon the defendants, and they should begin to lead the evidence.

(2.) The opposite party instituted a suit or, 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 :

(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 plaintiff's 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.