Supreme Court of India
Town Area Committee, Jalalabad vs Jagdish Prasad And Ors. on 7 April, 1978
Equivalent citations: AIR1978SC60, [1978(37)FLR108], (1979)1SCC60, 1978(10)UJ359(SC), AIR 1978 SUPREME COURT 1407, (1979) 1 S C C 60, 1978 ALL. L. J. 757, (1979) 1 LAB L N 4, 1978 SERV L J 707, 1978 ALL WC 647, 1978 U J (SC) 359, 1978 2 SERVLR 113, 37 FACLR 108
Author: S. Murtaza Fazal Ali
Bench: Jaswant Singh, S. Murtaza Fazal Ali
JUDGMENT S. Murtaza Fazal Ali, J.
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 wrongs full 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. I was not given any opportunity of howing cause against the action proposed to be taken against him viz. dismissal from service. This is a finding of face and we cannot interfere with the same in special leave. Mr. Anarwala has, however, raised two points before us In the first place, he submits that Article 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 Court below have however found that although the charge-sheet was submitted against the Respondent No. 1 and he had denied the same, yet no vintner 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 no dictation dated 19 March, 1947 spelt out the following rule:
No officer or servant shall be dismissed removed or reduced without a reasonable opportunity being given to him of showing cause against the action proposed to be taken in regard to him Any written defiance teetered shall be recorded and a written order shall be passed thereon Every order of dismissal, removal or reduction shall be in writing and shall specify the charge or charges brought, the defiance and reasons for the order.
A perusal of this notification would clearly show that the notification undou-betly contemplated a full aid complete opportunity to be given to the delinqent employee betore any action is taken against him it may not have been necessary to apply the provisions of Article 311 of the Constitution, strictly, nevertheless the principle of audi alteram partam bad to be complied with. A reasonable opportunity is a term of well known legal significance and includes au opportunity given to the employee to cross examine the witnesses examined against him and to lead defence in support of his version. What the department did in the present case, was to submit a charge, sheet against him get his explanation and thereafter it straightaway passed an order of dismissal. This was clearly in violation of the notification referred to above and could not be considered to be a reasonable opportunity as contemplated by the rule contained in the notification. For these reasons, therefore, the first contention raised by the counsel for the appellant must be overruled.
2. It was, then, submitted that the suit could not be decreed because the order of dismissals bad merged in the re visional 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 amending his plaint and including a relief for setting aside the cruder of the revisional authorities. To allow the appellant to raise this point at this age, 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 negligence 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. The appeal is without any merit and is accordingly dismissed but in she circumstances of the case, there will be no order as to cost.