KAILASHNATH MISHRA Vs. JIWAJI UNIVERSITY GWALIOR

JUDGEMENT

(1.) THIS case has a chequered history which must be set out at the out -set to appreciate legal contentions advanced by counsel although the challenge to the impugned order is made on only two short but substantial grounds, entitled to be sustained without much ado. The back ground of the facts of the lis are important because there was a judicial deter -mination of a part of the question which later formed part of the disciplinary proceedings in the course of which petitioner was dismissed from service.

(2.) IN a suit field in the Court of Second Additional District Judge, Gwalior being Civil suit No -2 -B/70, the petitioner made a claim against the respondent University for non -payment of his salary and allowances for the period, from 22 -9 -67 to 2 -7 -70. The judgment of the trial Court is Annexure P -3 and the relevant issue is decided at para 8 of the judgment. It was held that the plaintiff, the instant petitioner, who was an employee of the University, did not take any job any, where during the said period and he was entitled to be paid his salary and allowances by the University for the said period. On this finding, which was recorded after the parties adduced evidence in the case, the suit was decreed on 30 -11 -1972 and petitioner's claim was accordingly allowed. The plaint and written statement, Annexures P -3l and P -32, respectively, in this case, manifest clearly stand of the respective parties taken in the suit. At para 4 of its written statement the University took upon itself the burden to show that the plaintiff did not remain unemployed during the said period and that he earned remuneration and, therefore, he was not entitled to claim salary and allowances from the University. I have made this observation even at this stage as it has been strongly urged by Shri J. P. Gupta, respondents counsel, that no proper decision could be rendered on the issue as the evidence on the issue to support defendant's claim came into defendant's possession only later, and much later, so late that the respondent, the University, had, under a mistaken belief, withdrawn the appeal which if had filed in this Court assailing the decree passed against it. As I am dictating this judgment I reminding Shri Gupta, time and again, to point out if any fact relating to his case is left out and I have checked with him to ensure that the sheet anchor of his argument is reflected in bold relief in this judgment.

(3.) THE next act of the drama is unfolded on Annexure P -30 dated 29 -7 -1974 which is a petition filed by the respondent in the Court of the Additional District Judge under section 476 Cr. P. C. (old) read with section 340 Cr. P. C. (New), for initiating prosecution against the plaintiff by lodging a com plaint in the Court of appropriate jurisdiction under S. 193 I.P.C. because of alleged false statements made by him in his evidence in the suit. Because this petition was dismissed for default and then restored to file by the learned Additional District Judge, his decision was challenged unsuccessfully in this Court by the present petitioner. Being aggrieved by this Courts judgment, the petitioner moved the Hon'ble Supreme Court and there he succeeded in having both orders quashed. Annexure P 6 is the order passed by their Lordships on 2 -9 -1980 wherein it was observed that "University itself had ample opportunity to contest the statement of the appellant" in allowing the appeal and rejecting the contention advanced by the University that the appellant had obtained a decree against the University for a large amount by making a false statement on oath and, therefore, in the interest of justice a complaint should be lodged against him. Counsel for the University also contended before their Lordships that unless a complaint was lodged the University would not be able to get back the money from the appellant but this was also repelled holding that it may be open to the University to file a suit though it was also observed that no opinion need be expressed on the maintainability or advisability of the suit.