Pathak, J. - (1.) This appeal by special leave is directed against a judgment of the High Court of Delhi dismissing the appellant's second appeal. .
(2.) The appellant was appointed in 1968 to the post of Research Officer of the Institute of Constitutional and Parliamentary Studies. New Delhi, a society registered under the Societies Registration Act. 1860, and was later designated as Assistant Director. Subsequently, he was given additional charge of the Library of the Institute. In March, 1974 the appellant submitted a bill of Rs. 350 to the Institute claiming reimbursement of medical expenses incurred by him in the delivery of a child to his wife during the previous month. The Institute, however framed a charge on November 5, 1974 against the petitioner alleging that he was attempting to draw the sum by tendering a false bill. A member of the Executive Council of the Institute was appointed to enquire into the charge and the appellant participated in the enquiry proceedings. During the pendency of the proceedings the appellant appealed to the Executive Council of the Institute to change the Enquiry Officer but, it is alleged by the appellant while the appeal was pending consideration the appellant received a Memorandum dated July 17/18. 1975 from the Executive Chairman of the Institute placing the appellant under suspension. The Enquiry Officer completed his report on August 9, 1975 holding that the charge of presenting a false bill was proved against the appellant. On October 15/16. 1975 a second charge was framed against the appellant alleging that he was guilty of disobeying an Office Order requiring him to hand ever charge of the Library. The appellant was also served with a notice of the same date along with a copy of the enquiry report requiring him to show cause why he should not be dismissed from service. The appellant then filed a suit for declaration and injunction in the Court of the learned Subordinate Judge. Delhi on November 15, 1975 and obtained an ex parte order restraining the Institute and its Officers from dismissing him. When the matter came on for final disposal on August 24, 1976 the learned Subordinate Judge dismissed the suit without trial on the preliminary point that it was not maintainable. He expressed the view that the appellant's remedy lay in damages and not in a suit for declaration. The appellant appealed, and during the pendency of the appeal the learned Senior Subordinate Judge passed an order dated August 28, 1976 declining to grant an ex parte stay order. On September 3, 1976 the Institute filed a reply stating that the stay application had become infructuous as the appellant had been dismissed from service. The appeal filed by the appellant was dismissed by the learned Senior Subordinate Judge on January 22, 1977, who endorsed the view of the trial Court that the remedy of the appellant lay in damages instead of by a suit for declaration. The appellant filed a second appeal in the High Court of Delhi. During the pendency of the appeal he moved an application for amendment of the plaint. On April 18, 1980 the High Court rejected the amendment application and also dismissed the second appeal. And now this appeal.
(3.) The appellant attempted to place his case before us on its merits, but strong objection was taken by the respondents to the maintainability of the appeal on the ground that the order dismissing the appellant had not been challenged by him that the order had become final and that the continued existence of the order constituted an impediment to the consideration of the reliefs claimed in the suit. The appellant strenuously urged that the appeal continues to survive, and he attempted to establish that among the reliefs claimed in his amendment application filed in the High Court he had included a relief for declaring the order of dismissal invalid and, he said, the amendment had been wrongly refused. Shortly before concluding his submissions in this Court he filed an application in this appeal praying for amendment of the plaint by the inclusion of such a relief.;