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2011 DIGILAW 166 (MP)

Bela Devi Mishra v. Gram Panchayat, Amilkoni

2011-02-04

R.S.JHA, S.R.ALAM

body2011
ORDER 1. This intra Court appeal, filed under section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, is preferred against the order of the learned Single Judge dated 9.2.2010 passed in Writ Petition No.1118/1996. 2. It appears that the appellant being aggrieved by non-payment of salary although claiming to continue to work on the post of Instructor in the non-formal education scheme after having been appointed on 14.9.1989, filed the aforesaid writ petition. 3. The learned Single Judge having found that appellant's services were terminated by the order of the Director, Public Instructions, Madhya Pradesh, Bhopal and since then she did not work beyond 30th September, 1994, hence did not find merit in the claim of the appellant and dismissed the writ petition. 4. Learned counsel for the appellant submitted that after termination of appellant's services in August, 1994, she continued to work as she was given reappointment by the Sarpanch on 3.10.1994, but yet no salary is being paid to her since then. It is further submitted that since the appellant was working as Instructor, she is entitled to get the benefit of the order dated 12.12.1994 passed by this Court in Writ Petition No.3425/94 wherein it had been ordered that Supervisor/Instructor of non-formal education scheme in the State should be allowed to continue till further orders, if not already replaced by fresh recruits. It is alleged that inspite of appellant's continuation she is not being paid salary nor permitted to work. 5. We do not find any force in the submission of learned counsel for the appellant for the reason that the factum regarding appellant's continuation after 30th September, 1994 as an Instructor has seriously been disputed. The respondents in the return filed in the writ proceedings denied the aforesaid fact and have asserted that the services of the appellant were terminated with effect from 30.9.1994 vide Annexure R-l and since then she is not working. It has further been stated that vide order dated 30.9.1994, a large number of Instructors like the appellant were removed from service and most of them filed Writ Petition No.3425/94 before this Court and vide order dated 12.12.1994 a Division Bench of this Court directed that if the Supervisors/Instructors of non-formal education schel1e in the State, if not already replaced by fresh recruits, should be allowed 0 continue till further orders. However, since the appellant had already been removed before passing of the order dated 12.12.1994, she was never taken back in service and in her place one Smt. Mamta Mishra has been appointed. 6. The learned Single Judge looking to the rival contentions and disputed question of fact regarding continuation of the appellant as Supervisor/Instructor, vide order dated 24.1.2000 directed the Joint Director to conduct an inquiry and submit a report within six weeks from the date of receipt of the order on the aforesaid disputed question of fact. Consequently, the Joint Director (Education), Rewa conducted an inquiry and after recording statements of the appellant and other officials as also on perusal of the record, found that the appellant's services were terminated by the Director, Public Instructions, Madhya Pradesh, Bhopal vide order dated 30.8.1994 and thereafter she has not worked, however, her services were legally terminated with effect from 30.9.1994 and thus, her continuance has not been proved after the date of her removal from service. The Inquiry Officer further found that the documents produced by the appellant in support of her claim have been prepared by herself and there is no document on record to show that she was working on the strength of the orders of the competent authority. 7. Before us also, the learned counsel for the appellant failed to show any evidence whereupon it could be conclusively held that the appellant was actually allowed to continue and work as Supervisor after she claims to have been reappointed by the Sarpanch on 3.10.1994. Thus, in the absence of such evidence, the appellant cannot claim the benefit of the order dated 12.12.1994 passed in Writ Petition No.3425/1994. 8. It is well settled legal position that where the claim is based on disputed questions of fact, the same cannot be decided in writ proceedings which is summary in nature. Reference may be made to the judgment of the Constitution Bench of apex Court in The Union of India and others v. Ghaus Mohammad [ AIR 1961 SC 1526 ], wherein it has been held that the question whether the respondent is a foreigner is a question of fact on which there is a great deal of dispute which would require a detailed examination of evidence and a proceeding under Article 226 of the Constitution would not be appropriate for a decision of the question. The apex Court again in D.L.F. Housing Construction (P) Ltd. v. Delhi Municipal Corporation and others [ (1976)3 SCC 160 ], opined that where basic facts are disputed, and complicated questions of law and fact depending on evidence are involved, the writ Court is not the proper forum for seeking relief. Paragraph 20 of the judgment is extracted hereinafter: "In our opinion, in a case where basic facts are disputed, and complicated questions 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. On this short ground without 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." Therefore, where the basic facts are highly disputed the writ Court can decline to grant relief in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India. The apex Court again reiterated the similar view in Indian Bank v. Godhara Nagrik Cooperative Credit Society Ltd. (2008)12 SCC 541 ], wherein in para 12 of the judgment Their Lorships have observed that writ petitions involving seriously disputed questions of fact, ordinarily should not be entertained. Their Lordships again approved the order of the High Court refusing to entertain the writ petition inter alia on the ground that the same involves disputed questions of fact. The apex Court again in Mukesh Kumar Agrawal v. State of U.P. [ (2009)13 SCC 693 ], approved the order of the High Court refusing to entertain the writ petition inter alia on the ground that the same is based on questions of fact which are disputed and require to be examined on the material on record. 9. In the case in hand, since there is no conclusive evidence on record to show that the appellant continued to work beyond 30th September, 1994, the relief claimed in the writ petition cannot be granted. 9. In the case in hand, since there is no conclusive evidence on record to show that the appellant continued to work beyond 30th September, 1994, the relief claimed in the writ petition cannot be granted. The onus was on the appellant to establish the facts of her continuance and discharge of duties beyond 30th September, 1994 which she has failed to discharge, hence the facts being highly disputed, the direction for permitting her to continue in service and payment of salary thereof cannot be granted in the facts of the case. 10. In view of the above, we do not find any merit in the appeal. It is accordingly dismissed. However, there shall be no order as to costs.