Ram Priya Sharma v. Tilka Manjhi Bhagalpur University
2013-03-22
NAVANITI PRASAD SINGH
body2013
DigiLaw.ai
ORDER Petitioner retired as a notified University Professor on 31.01.2006 from the Tilka Manjhi Bhagalpur University, Bhagalpur. He has filed this writ petition for payment of revised pension, dearness allowance and substantial arrears of salary. 2. Today, a counter affidavit has been filed and then a supplementary counter affidavit has been filed on behalf of the University. Both are fit to be rejected. This Court does not accept such sketchy counter affidavit. The counter affidavits must be comprehensive for final disposal of the case. What stated in the counter affidavit is not the ultimate truth by which the Court is bound. It cannot be judgmental. Facts which are to be proved by evidence have to be supported by evidence. That is the settled law. It cannot be said in the counter affidavit that there were Government directives without annexing Government directives. There cannot be reference to letters or circulars without annexing them. In this regard, I may refer the case of Bharat Singh & Ors. Vs. State of Haryana & Ors. since reported in AIR 1988 Supreme Court 2181 and, in particular, what is said in paragraph-13 thereof, which is quoted hereunder:- “When a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. There is a distinction between a pleading under the Civil P.C. and a writ petition of a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.” (emphasis supplied) 3. I am saying this because in paragraph-5, while admitting liability to pay arrears of salary for the period July, 1982 to July, 2005, it is said that the arrears exclude the period January, 1996 to March, 2000.
I am saying this because in paragraph-5, while admitting liability to pay arrears of salary for the period July, 1982 to July, 2005, it is said that the arrears exclude the period January, 1996 to March, 2000. When learned counsel was asked to explain this stand he states that there are some instructions from the Government in this regard, which the Court must assume or presume. That is contrary to what the Apex Court had said. Then again in paragraph-6, it is stated that the Government has revised salary with effect from 01.06.2006, but it is not being presently paid. It is only said that it will be paid when funds are made available by the Government. It is most unfortunate that such vague, insufficient pleadings are made only to waste the time of this Court. 4. Here, I may also usefully quote from the judgment of the Apex Court in the case of National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore & Ors. since reported in AIR 1988 Supreme Court 719 and, in particular, what is stated in paragraph-10 thereof, which is quoted hereunder:- “The attitude of not filing copy of policy of insurance is worth mentioning. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. The Supreme Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case the instrumentalities of the State such as the appellant Insurance Company who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. It has to be emphasised that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence.” 5.
It has to be emphasised that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence.” 5. In this connection, it may be emphasized that parties on whose behalf counter affidavits are to be filed are obliged to give full, true and proper instructions to their counsels for preparing and filing a comprehensive counter affidavit. Equally is the duty of the counsel to enquire into the facts and correctness thereof and insist upon statement of full facts in the counter affidavit so that the time of Court is not wasted by adjourning the matter for further clarification or better particulars. 6. In the circumstances above, I would have ordinarily imposed a heavy cost on the University for such inadequate and non-comprehensive counter affidavit resulting to wastage of Court’s time. But, as requested by Mr. Keshari, learned counsel for the University, as a matter of last indulgence, further time is granted to file a proper comprehensive counter affidavit with full sense of responsibility. 7. Let a copy of this order be sent immediately by the Registrar General of this Court to all the Universities in Bihar, the Advocate General, Bihar and the Legal Remembrances for their guidance and necessary action. 8. Put up this matter under the same heading, retaining its position on 08thof April, 2013 when a comprehensive counter affidavit should be filed by the University.