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Allahabad High Court · body

1987 DIGILAW 99 (ALL)

Ram Swarathi Sharma v. State Of U. P.

1987-02-02

B.N.MISRA, R.M.SAHAI

body1987
JUDGMENT 1. The petitioner was appointed a peon on 1. 10 1980 in Pandit Jawahar Lal Purva Madhyamik Vidyalaya (Junior High School), jayatpur, district Gorakhpur. According to him, though he was confirmed in the post of peon, his annual increments were denied to him by the Committee of Management, respondent no. 3. He made several representations to the concerned authorities, but they were of no avail. In May 1983, the management served a charge-sheet to the petitioner. The charges were subsequently revised and Sri Panchami Singh was appointed as enquiry officer. The petitioner had submitted his explanation to the chargesheet and had objected to the appointment of Panchami Singh as the enquiry officer no action was taken on his objection. He was placed on suspension on 6. 4. 1984, but the said suspension order was revoked as, according to the petitioner, the allegations against the petitioner were found to be false. In support of this assertion the petitioner has filed a copy of the letter from the Manager to the Head Master as Annexure 5 to the writ petition. Thereafter, he reported for duty at the School but the Head-Master and the manager did not permit him to join his duties. Inspite of several representations made by him from time to time, he was not reinstated. In these circumstances the petitioner has approached this Court for a writ of mandamus to direct the respondents to reinstate him in service, treat him as continuing in service and give him his salary and other service benefits. 2. In the counter affidavit filed by the respondent no. 3, it is stated that the services of the petitioner were terminated by the Head Master, who was the appropriate authority, by order dated 31.10.1984, and Annexures 1 to the counter affidavit is a copy of the said termination order. This order of termination was approved by the Zila Basic Shiksha Adhikari by his order dated 10.12.1984 and Annexure 2 to the counter affidavit is a copy of the said order. It is also stated that the petitioner who was under suspension since march 1984 has been duly paid his subsistence allowance. The Zila Basic Shiksha Adhikari, respondent no. This order of termination was approved by the Zila Basic Shiksha Adhikari by his order dated 10.12.1984 and Annexure 2 to the counter affidavit is a copy of the said order. It is also stated that the petitioner who was under suspension since march 1984 has been duly paid his subsistence allowance. The Zila Basic Shiksha Adhikari, respondent no. 2, has stated in his counter affidavit that the petitioner had been suspended by the Head master on 6.4.1984 as a consequence of the report of the enquiry Officer, Sri panchami Singh, and the said suspension order was revoked after expiry of 60 days from the date of suspension. It is stated that Sri Panchami Singh had held the enquiry against the petitioner and had submitted his report to the concerned authority. As a consequence to the findings of the enquiry officer, the services of the petitioner were terminated and approved by the respondent no. 2 on 10.12.1984 and arrears of salary of the petitioner had been directed to be paid to him. 3. In his rejoinder affidavit, the petitioner has vehemently denied the assertions made by the respondents nos. 2 and 3 in their respective counter-affidavits. He has stated that the order of termination dated 31.10. 984 and the approval order dated 10.12.1984 are false and concocted documents and they have been fabricated and manipulated by the contesting respondents. The petitioner has filed a copy of the letter dated 29.1.1985, as Annexure 3 to the rejoinder affidavit, from Sri Panchami Singh to the Head Master, wherein it is stated that the charges against the petitioner had not been established in the enquiry held by him. The petitioner has submitted that he had attended the enquiry on some dates, but according to him, neither the enquiry report nor the order of termination of service, nor the order of approval were ever communicated to him. Annexure 5 to the rejoinder affidavit is a copy of the letter sent by the Manager/head Master to the petitioner assuring him that he would soon be permitted to join his service. Annexure 5 does not bear any date. The petitioner has re-iterated his claim that Annexures 1 and 2 are false and fabricated documents and have been manipulated by the contesting respondents. 4. Annexure 5 does not bear any date. The petitioner has re-iterated his claim that Annexures 1 and 2 are false and fabricated documents and have been manipulated by the contesting respondents. 4. Learned counsel appearing for the petitioner urged that the order passed by the Head Master terminating the services of the petitioner and the order of the Zila Basic Shiksha Adhikari approving the order of termination must be rejected as false and fabricated in view of the contents of annexure 5 to the writ petition and Annexures 3 and 5 filed along with the rejoinder affidavit. These documents have already been referred to. Learned standing Counsel appearing for the State has, on the other hand, argued that in his affidavit the Zila Basic Shiksha Adhikari has clearly stated that on the basis of the enquiry report submitted by Panchami Singh, the services of the petitioner were terminated and duly approved by him and as such no reliance should be placed on the aforesaid documents relied on by the petitioner. Thus, according to the petitioner, the documents relied by the respondents nos- 2 and 3 are false and fabricated and according to the respondents, the documents filed by the petitioner are not authentic and cannot be relied upon. The allegations and counter allegations as have been advanced by the parties in this case require a detailed examination of evidence and no conclusive findings can be given in a summary proceeding under article 226 of the constitution as the materials placed on record by the parties are wholly insufficient to lead to a definite finding. Generally speaking disputed questions of facts are not investigated in a proceeding under Article 226 of the Constitution In D. L F. Housing Construction (P) Ltd. v. Delhi municipal Corporation. A. I. R. 1976, S. C 386. the Supreme Court held as under : "in our opinion in a case where the basic facts are disputed and complicated question of law and fact depending on evidence are involved the writ court is not the proper forum for seeking relief. The right course for the High Court to follow was to dismiss the writ petition on this preliminary ground, without entering upon the merits of the case. In the absence of firm and adequate factual foundation, it was hazardous to embark upon a determination of the points involved. The right course for the High Court to follow was to dismiss the writ petition on this preliminary ground, without entering upon the merits of the case. In the absence of firm and adequate factual foundation, it was hazardous to embark upon a determination of the points involved. On this short ground, while setting aside the findings of the High Court, we would dismiss both the writ petition and the appeal with costs. The appellants may. if so advised, seek their remedy by a regular suit. " In the present case also the allegations and counter allegations of manipulation and concoction cannot be decided on the basis of the slender materials placed before the court by the parties. The petitioner may, if so advised, challenge his order of dismissal in the appropriate court, and if he establishes his allegations, he would be entitled to reinstatement in service and all consequential benefits. 5. Learned counsel for the petitioner relied upon a decision of this court in Dr. Shyam Narain Pandey v. Vice Chancellor, Gorakhpur University, gorakhpur, 1985 U. P. L. B. and E. C page 99. wherein an order of termination of the services of a Professor was set aside on the ground that the impugned order was wholly void and ineffectual in law. That decision has no application to the facts of this case as here there is no material before us to hold that the order terminating the services of the petitioner and the order of the Zila Basic Shiksha adhikari approving the said termination are wholly void as such ineffectual in law. For the reasons stated above, this writ petition is dismissed. In the facts of this case, there would be no order as to costs.