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Jethalal Someshwar Dave Vs. State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Appln. No. 700 of 1962
Judge
Reported inAIR1967Guj186; (1966)GLR850
ActsCode of Civil Procedure (CPC), 1908 - Order 19, Rule 3; Bombay High Court Appellate Side Rules, 1960 - Rules 5 and 12; Constitution of India - Article 226;
AppellantJethalal Someshwar Dave
RespondentState of Gujarat and anr.
Appellant Advocate S.B. Vakil, Adv.
Respondent Advocate B.R. Sompura, Asst. Govt. Pleader,; K.L. Talasania, Addl. Govt Pleader and;
Excerpt:
service - pension - rule 5 and 12 of bombay high court appellate side rules, 1960 - petitioner joined services in former x state - x state merged with y state - petitioner given a new post - claimed that he was entitled for pension as per service rules when he was in x state - whether petitioner entitled to pension or not will depend upon whether his salary was paid out of revenue of y state or paid out of contractual grant of x ruler - due to lack of documentary evidence or oral evidence matter referred back to magistrate to issue certificate certifying his source of receipt salary - petition dismissed. - - their lordships held that in view of that fact, the respondents had failed held that in view of that fact, the respondents had failed to establish properly that an enquiry was.....order(1) this is a petition under art. 226 of the constitution of india by jethalal someshwar dave. petitioner has asked substantially for three reliefs. the first relief is that of a declaration that petitioners was entitled to recover from the two respondents or either of them pension in accordance with the pension rules incorporated in resolution dated 30th may 1951, passed by the former government of bombay (hereafter called the pension rules simpliciter). the second relief is that respondents should be directed to pay to petitioner a sum of rs. 18,360/- that being the arrears of petitioner's pension upto august 23, 1962 such dearness allowance as is permissible under the rules. the third relief is that of a direction to respondents or either of them to direction to respondents or.....
Judgment:
ORDER

(1) This is a petition under Art. 226 of the Constitution of India by Jethalal Someshwar Dave. Petitioner has asked substantially for three reliefs. The first relief is that of a declaration that petitioners was entitled to recover from the two respondents or either of them pension in accordance with the pension rules incorporated in Resolution dated 30th May 1951, passed by the former Government of Bombay (hereafter called the Pension rules simpliciter). The second relief is that respondents should be directed to pay to petitioner a sum of Rs. 18,360/- that being the arrears of petitioner's pension upto August 23, 1962 such dearness allowance as is permissible under the rules. The third relief is that of a direction to respondents or either of them to direction to respondents or either of the to pay to petitioners pension in further at the rate of Rs.108/- per month. The petition was originally filed against the State of Gujarat only, but on an objection being raised by that State, the State of Maharashtra was subsequently joined as second respondents .

(2) The facts which may be stated in order to dispose of this petition are as follows: Petitioner joined service in the former Devgadh Baria State on 2nd January 1930 as a budget clerk, and he continued to serve that State in different capacities till that State merge with the Province of Bombay on 10th June 1948 . Petitioner was appointed by His Highness the Ruler of Devgadh Baria State ( hereafter called the State) as the First Huzur Khangi Karbhari under a resolution of the ruler dated 7th August 1947. By which resolution the former post of the Raj Karbhari Officer was abolished and the new post of Huzur Khangi Karhbari was established. Under that resolution, petitioner's salary was fixed at Rs. 200-25-300 on 1st January 1948, the State brought into force a new set of rules called Baria State Pension Rules, which rules were amended on 12th January, 1948, Amongst the amended rules was rule No. 3 which stated that the rules would apply to all servants of the State employee in civil capacity. Petitioner's case is that whilst he was in the State service, he was governed by these rules and that he was, under those rules, entitled to a pension in accordance with the condition laid won in those rules. Before the merger, an agreement was entered into between the Ruler and the Sec to the Government of India, Ministry of States on 19th March 1948 and that agreement was further supplemented by a letter which was addressed to be the Ruler by the later officer on 1st October 1948. Petitioner relied upon paragraph 5 of the letter dated 1st October 1948 in support of this petition. However, after paragraph 5 was read, Mr. Vakil, the learned advocate for petitioner , did not pursue that point any further. That paragraph 5 guarantees the payment of pension to all State servants who had already retried before 1st April 1948. Therefore that, paragraph on admitted facts cannot govern the case of petitioner and, in our judgment Mr. Vakil was right in making the concession that paragraph 5 did not apply to the facts of the present case. In Para 9 of his petitioner states that after the State was merged with the Province of Bombay, 'the petitioner was not absorbed in the service of the then Province of Bombay and elected to retire from service'. Mr. Vakil submits that this averment in the petition is not quite accurate and that what really has happened in the case of petitioners is that though he was entitled to be absorbed in the service of the Province of Bombay, he elected to retire from service under a rule to be presently mentioned. On 30th May 1951 the State of Bombay passed a resolution entitled 'compensation order regarding to servants of the merged States who cannot be absorbed in Bombay government service'. By that resolution, the Government after superseding number of other resolutions, issued consolidated rules and instructions for regulating the conditions applicable to State servants of the merged and integrated State ' who were not willing to be or were not absorbed in the Bombay Government service' though, it does not so appear from the record of the case, both the sides admit that petitioner has been awarded compensation under these rules of an amount representing his salary for three months received by him under the State service. However, on 17th March 1952, petitioner addressed a later to the government in which for the first time, he demanded grant of pension. This request was rejected by the Government by its letter dated 31st March 1953, Petitioner however, addressed a second letter on 11th August 1953 to the Government in which be set out the facts and circumstances and referred to documents which he considered would establish his claim for a pension. This representation also was rejected by the Government by its letter dated 11th May 1954. Petitioner, however, addressed a third letter to the government dated 27th July 1954, but despatched it on 18th August 1954, in which he set out some further facts. On this the Government referred the matter to the Collector Panhamahals for further investigation According to petitioner , the Collector made a report in his favor on the 9th December 1954. According to respondent all that the Collector stated was that the salaries of he State servants were being paid from the State revenues. However, the Government again rejected petitioner's claim for a pension by its letter dated 13th December 1954. Even thereafter, the Mamlatdar, by this letter dated 18th July 1955, wrote to petitioner that the Government did not see any reason to revise its previous orders. Thereupon after giving the statutory notice, petitioners filed suit No. 2430 of 1956 in the City Civil Court, Bombay, in which substantially he asked for similar prayers as have been asked for in the present petition. Petitioner withdrew that suit on 8th September 1959. According to petitioner , he did so because his suit was barred by section 4 of the Pensions Act 1871. Petitioner has in this affidavit relied upon the recommendation made by his learned Judge of the City Civil Court when passing the order of withdrawal. The recommendation was the petitioner's claim having been found to be correct by the Collector, petitioner's case deserved sympathetic consideration, After this on 20th November 1959 petitioner' s attorney addressed another letter to the Government of Bombay and demanded pension for and on behalf of petitioner . On 1st May 1960,under the State Re-organisation Act of 1960, the former State of Bombay became bifurcated into the States of Maharashtra and Gujarat, Section 59 of that Act deals with the subject of the liability of each state in regard to the payment of pensions of servants of the State of Bombay. It appears that petitioner's attorney's letter was sent to the State of Gujarat for being deal with according to law. The State by its letter dated 11th July 1961, again rejected petitioner's claim stating that it saw no reason to revise the previous orders. Petitioner says that, thereafter on 9th December 1961, he obtained a letter from a ex-ruler recommending that petitioner should be paid a pension,. Thereafter, petitioner made to representations to the Chief Minister, State of Gujarat on 10th December 1961 and 8th January 1962. A deputy Secretary of the Government replied on 5th January 1962 that the representation were rejected and the Government stood by its former decision. Thereafter, petitioner filed the present petition on 23rd August 1962, seeking the aforesaid reliefs.

(2a) The respondents contest the petition both on merits and on a technical ground. But the technical ground urged in the affidavit in reply was not urged at the time of hearing . Instead, petition was sought to be challenged on another technical ground and that was that petition should be thrown off on the ground of laches and delay. Mr. Sompura, the learned Assistant government, Pleader appearing for the Stare of Gujarat, contends that petitioner's claim for pension was negatived by the Government as far back as 31st of March 1953 and the jurisdiction of this Court was invoked as late as 23rd August 1962 and that, the grounds which have been given by petitioner in paragraph 19 of his petition for explaining the delay are insufficient and not warranted by law. There is some justification for this contention in regard to the first two reliefs claimed by petitioner . In so far as petitioner wants a declaration to the effect that he is entitled to receive pension with effect from the date of the merger there is no doubt whatsoever that the claim for declaration in state, having regard to the fact that petitioner's claim for pension was rejected by the Government as far back as 31st march 1953. Equally , there is no doubt whatsoever that in so far as petitioner claims a direction for the payment of arrears of pension, the claim must be regarded to be state at least for a major portion of that particular claim. But the difficulty in enforcing the aforesaid preliminary objection is that petitioner has also claimed a third relief and that relief is. If petitioner 's case is justified, based upon a recurring right to receive pension. Neither Mr. Sompura, nor Mr. Shah, contend that the inaction of petitioner, in spite of all or any of the aforesaid refusals of the Governments concerned to accede to the demand for pension has any repercussions on the right to receive pension in further. If one was already vested in petitioner . Therefore we did not think it proper to dismiss the petition in limine on the above ground. We thought it proper to reserve the question as to which of the several reliefs should be granted after bearing the parties on merits.

(3) The only submission, Mr. Vakil in support of the present petition is that petitioners is entitled to receive pension as claimed by him under Government Resolution dated 30th may 1951 read with Baria State Pension Rules of 1948.

(4) The resolution as already stated, was passed by the Government to regulate the conditions applicable to State servants of the merged and integrated States who were not willing to be or were not absorbed in the Bombay Government service. The resolutions contains in all eleven rules. Some of which contain special instructions. Rule No.1 divides the servants of the merged States into two categories. The first category is that of persons who should be discharged. The second category consists of persons who are not so discharged. In regard to this class, clause (b) of rule I states that they should bee given option either to retire or to continue in the service of the Government of Bombay. Petitioner's case is that he falls within the purview of this clause (b) and that, in exercise of the option given to him, he had retired from service. We are not concerned with the provisions contained in rule II. Rule III provides for those persons who are either discharged under clause (a) of rule I or those who choose to retire under clause (b). That clause directs that such persons should be given three months notice of discharge and all leave due to them. Petitioner's case in that he was paid compensation under rule III. On the other hand, respondents' case in that petitioner was not paid any compensation under rule III, because his case was not covered by clause (b) of rule. I According to respondents , petitioners case was covered by rule VIII to be presently mentioned. Rule IV deals with the question of the grant of gratuity or pension to servants of the merged States who are either discharged or choose to retire Petitioner 's Case is that his case falls under clause (a), sub-clause (ii) of rule IV. That clause provides that gratuity or pension should be paid to persons who have rendered duty counting for pension of not less than nine completed years, either according to the Bombay Civil Services Rules or according to the rules of pension or gratuity governing the servant concerned under the former state administration. Respondents, case is that this rule is not applicable to petitioner because neither clause (b) of rule I nor rule III is applicable to the facts of the present case. Then comes rule VIII on which reliance is placed by respondents. That rule states the servants of the merged States 'who were paid from the private purse or grant of the ruler and not paid out of the revenue of the State and who are not continued in service, should be given three months, notice or three months' pay in lieu of notice'. Respondents case is that petitioner was a servant whose salary was not paid from out of the revenues of the Baria State. According to respondents petitioner's salary was being paid from out of the privy purse or the contractual grant placed at the disposal of the ex-ruler. According to respondents , petitioner as paid three months pay, because, belonging to the aforesaid category of State Servants, he was not continued in service. Then comes rule IX. The relevant part of rule IX states that the rules framed under the resolution 'also apply to persons serving in the private departments of the rulers, Commonly known as 'Khangi' servants provided that they were paid from the State revenues'. Although there are statements in the petition which show that petitioner's case was that he also served in departments other than the 'khangi' department of the Ex-ruler. Mr. Vakil argued the vase on the basis that at all relevant times, petitioner was, in fact attached to the 'khangi' department. According to petitioner , that did not make any difference to the application of rule IX. In fact, it is not disputed by respondents that petitioner would be entitled to the benefit of rule IX even if he belonged to the 'khangi' department of the ex-Ruler.

(4a) From the aforesaid discussion, it is quite clear that the most important point, on the determination of which the fate of the present position depends, is whether petitioner's salary was being paid from out of the revenue of the Baria State or whether it was being paid from out of the Privy purse or the contractual grant of the ex-Ruler. Whether rule VIII applies or rule IX. The most material question for determination will be the above question as to the source from which petitioner received his salary. Now, Mr. Sompura's contention is that this is a disputed question of fact and that, having regard to the facts and circumstances of the present case, this Court should not exercise its discretion to undertake a decision of this disputed question of fact. Mr. Vakil meets this point in two ways, firstly, he contends that the averment made by petitioner that he was being paid his salary from out of the revenues of the Baria State has legally remained uncontroverted and that, therefore, the present petition should be decided on the basis that petitioner's averment to the aforesaid effect had been admitted by respondents. Now the relevant averment in this connection is to be found in paragraph 6 of the petition. In that paragraph, petitioner stated that his salary as Huzur Khangi Karbari was paid out of the revenues of the Baria State in the same manner as the salary of other civil servants, of the Baria State was paid out of the revenues of the State Now this fact has been controverted by Mr. C.T. Munium. Under Secretary to the Government of Gujarat, general Administration Department, in paragraph 8 of his affidavit in reply. Mr. Vakil, contends, however that the whole of this affidavit of Mr. Munim is inadmissible in evidence. He submits that this is so because Mr. Munim has not stated which paragraph or portions of his affidavit were true to his knowledge and which true to his belief and that, in the latter contingency, he has not given the grounds for entertaining the aforesaid belief. He says that, in the absence of the latter averments, an affidavit cannot be stated to have been properly made and cannot be made use of to controversy averments made in the petition. Now, Mr. Vakil's contention that an affidavit should be framed in the aforesaid manner is based upon the provisions contained in Order 19, rule 3 of the Civil Procedure Code. Mr. Vakil contends that a breach of this provision makes an affidavit inadmissible and, in support thereof, he relies upon the decision in Vinubhai Hirilala Panchala v N. II. Sethna, 1962-63, Guj LR 66. In our judgment Mr. Vakil is not right in this contention. The relevant passages in the aforesaid decision are to be found on pages 67 and 68. Mr. Vakil was unable to point out to us any passage therein which stated that a breach of order 19, rule 3, Civil Procedure Code, made an affidavit inadmissible. In that case, the leaned Assistant government Pleader had raised a preliminary objection that the petition should be rejected in limine on the ground that certain material fact had been suppressed in the petition. The material fact alleged to have been suppressed was an enquiry said to have been made by the Chief Entertainment Duty Officer on the sport at the time of his visit to the Laxmi Talkies on a certain date. The question as to whether such an enquiry was or was not made was in controversy in that case and the learned Assistant Government Pleader relied upon the affidavit made by the Deputy Commissioner of Police in which he had referred to the aforesaid fact. It appears from the judgment that that affidavit did not show which paragraphs were true to the knowledge of the deponent and which paragraph were true to his belief. Their Lordships were true to his belief. Their Lordships held that in view of that fact, the respondents had failed held that in view of that fact, the respondents had failed to establish properly that an enquiry was made on the spot by Chief Entertainment Duty Inspector. Now there is no doubt that the learned Judge have quoted Order 19, rule 3, Civil Procedure Code, But at the same time , it is not quite clear from the judgment as to whether their Lordships held that rule 3 aforesaid was applicable in terms. Their Lordships have also quoted rule 5 in Chapter III of the Bombay High Court Appellate Side rules, 1960. In our judgment, having regard to the fact that the aforesaid rule deals with the identical question in a case falling for determination on the Appellate Side of this Court, the proper rule to refer is rule 5 in Chapter III aforesaid. There appears to be a material difference between rule 3 of the order 19 and rule 5 in Chapter III of the Appellate Side Rules. According to rule 3, it is only on interlocutory applications that affidavits can contain statements of one's belief and that, in all other cases, the affidavits must necessarily be confined to facts true to the knowledge of the deponent. The rule also further states that in those cases where affidavits can contain statements of one's belief, the grounds of such belief must also be stated. Rule 5 in Chapter III of that Appellate Side rules does not make any such distinction between interlocutory and non-interlocutory applications. It is applicable to all kinds of applications, whether interlocutory or otherwise. Rules 5 aforesaid directs that the deponent shall state what paragraphs or portions of his affidavit were from his own knowledge and what paragraphs or portions were based on his belief. If the latter case, the deponent is required to state the grounds of his belief. But we are not in agreement with Mr. Vakil when he contends that the affidavit of Munim is not made in accordance with the provisions contained in rule 5. In the very first paragraph of his affidavit. Munim has stated that he had persuade the papers and proceedings relating to the matter of the petitioner and that he was conversant with the facts of the case and able to depose to the statements which were made by him in the affidavit. This paragraph makes it clear that the affidavit was made not on the basis personal knowledge of the deponent. But on the basis of the perusal of the papers of the proceedings. But Mr. Vakil contends that the latter is too vague and nebulous a term to permit one to say that they contained the grounds for the belief of the deponent in making the various statements. He says that the papers and the proceedings in regard to the matter have not been specified and none is left in the dark as to which papers and proceedings the deponent has in view. We are unable to agree with submission. In the first instance, there is no doubt whatsoever that the papers and proceedings relating to the demand for pension made by petitioner and a perusal of the petition, and the several annexures annexed to the petition show what those papers and proceedings were Mr. Vakil however, contends that in any case, the aforesaid portion of the affidavit cannot be used for the purpose of controverting the contention of petitioner contained in paragraph 6. But when we turn to the petition itself. We find that in the verification clause, paragraph 6 has not mentioned a paragraph the statements in which are true to the personal knowledge of petitioner . from that verification clause, it is quite clear that petitioner does not claim to have any personal knowledge in regard to the averment about the source from which he received his salary, an that the averment was made on the basis of information and belief. But when we again turn to the verification clause, we find the petitioner has not given, as required by rule 5 aforesaid the grounds off his belief. Petitioner has not also stated the source of his information. Under the circumstances, in our judgment, even if there is any validity in the criticism urged by Mr. Vakil against the affidavit of Munim - and in our judgment there is no such validity - the infirmity which he tried to rely on in the affidavit of Munim rather attaches to the verification clause in the petition more than to the affidavit of Munim. Under the aforesaid circumstances, in our judgment, there is no material on the basis of which this Court can record a sure conclusion about the most important question of fact in dispute between the parties, viz., whether petitioner was being paid his salary during the old regime from out of the Baria State revenues.

(5) When the aforesaid state of affairs was noticed as a result of the perusal of the verification clause of the petition. Mr. Vakil made a strong plead urging us to take affidavit or evidence to determine the question of fact Mr. Vakil first of all pointed out to us the fact that this Court has power to take evidence in a writ petition. Rule 12 in Chapter XVII of the Appellate Side Rules so provides. The rule states that if cause be shown or answer made upon affidavit putting in issue any material question of fact. The Court may allow oral testimony of witnesses to be taken and for that purpose may adjourn the bearing of the rule to some other date. Now, there is no doubt. Whatsoever, that this Court, has the power to do so. But at the same time, as pointed out in a number of decisions, ordinarily this Court does not undertake the task of determining a disputed question of fact. But Mr. Vakil contends that such is not the rule. In his submission, after the decision of their Lordships in the second Kochuni's case. AIR 1959 SC 725 the views of prevails that ordinarily the discretion should be exercised in favour of taking evidence rather than dismissing petition in limine on the ground that it involves a disputed question of fact. In support of this contention Mr. Vakil relies upon the decision in Joyti Prakash Mitter v H.K. Bose, C.J. : AIR1963Cal483 . This question is considered by S.P. Mittra J. In paragraphs 52 and 55 at pages 490 to 493. The learned Judge , after noting that there were a number of reported decision in which it had been repeatedly pointed out that where there was a question of which there was serious dispute which would not be satisfactorily decided without taking evidence, it was not the practice of courts to decide that question in a writ petition refers to Kochuni's case. : AIR1959SC725 , aforesaid and quotes a passage therefrom in extenso from pages 734 and 735. Thereafter, the learned Judge points out that the observations quoted by him from Kochuni's case. : AIR1959SC725 had given rise to a serious controversy as to whether an application under Article 226 for the issue of a writ should be thrown out only on the ground that disputed questions of fact had to be gone into. Then the learned Judge observes that the Calcutta High Court had not finally decided that question. Then the learned Judge observes that he agreed with the views expressed by his learned brother P.N. Mookerjee. J. Which are to be found reported at pages 487 of the report. In paragraph 22, Mookerjee J. Has observed that the matter was really one of discretion or convenience and not of jurisdiction an that even if a disputed question of fact was to be held sufficient to disentitle the applicant to a relief by way of a writ, it must be such a dispute as would required a detailed investigation into serious and complicated questions of fact, which would not be possible without going into elaborate evidence. But, in our judgment, the aforesaid observations do not constitute a final decision on the subject. The judgments were delivered by their Lordships in the aforesaid case, to decide whether rule nisi should or should not be issued on the facts of that case. Therefore, their Lordships considered the aforesaid question not with a view to pronounce a final judgment on that controversy, but only with a view to indicate that the matter was such that the petition in hand did not deserve a summary dismissal. Under the circumstances, in our judgment, the matter, if at all, must rest upon the decision recorded in Kochuni's case : AIR1959SC725 . Now from the passage quoted by Mitra J., in paragraph 54 from Kochuni's case : AIR1959SC725 , it is abundantly clear that their Lordships were determining that question from the point of view of a petition under Article 32 of the Constitution made for the protection of the fundamental rights of the citizens. It is in that context that their Lordships stated that even if a petition involves disputed questions of facts, it would not be proper to dismiss the petition in limine specially if the matter could be decided on affidavits or by demanding further affidavits. Therefore, the aforesaid observations must be confined to a petition under Article 32. By their own force, they do not apply to a petition under Article 226. But even if one proceeds on the basis that High Courts would proceed on the same principle when a petition is filed for the protection of the fundamental rights of a citizen, it does not follow that the same principle should govern a petition under Article 226 which does not involve an infringement of any fundamental right. Even in the case of an infringement of a fundamental right, their Lordships have emphasized the fact that the Supreme Court undertakes decision of a disputed question of fact on the basis of affidavits and they have observed that recording of oral evidence even for such a purpose is a rare thing. Under the circumstances, in our judgment, it is not correct to say that in a petition under Article 226, the principles on which Courts have acted when there are disputed questions of fact, have, in any way, undergone any change. In the present petition, there is no question of enforcement or any infringement of any fundamental right. The claim made by petitioner is a claim for pension and the petition is designed to protect petitioner's pension rights. The petition of petitioner does not disclose that he has any personal knowledge on the disputed question of fact. The problem arose as far back as 1952 and on more than one occasion, in spite of the fact that facts were placed by petitioner the Government rejected petitioner's claim probably because it was not satisfied that petitioner was a person entitled to the benefit of the rule relating to pension in the aforesaid set of rules. It is quite clear that it is for petitioner, in the first instance, to prove in order to obtain any relief, that his salary was being paid from out of the revenues of Baria State. Having regard to the fact that petitioner does not claim to have any personal knowledge on the subject, it is quite clear that petitioner can only prove that fact by leading oral evidence on the subject or by production of such documents as may be relevant on it. Now, in our judgment, there are no grounds existing in this petition which should induce us to order the recording of oral or documentary evidence to determine the aforesaid dispute. The only special circumstance which Mr. Vakil urges in support of his submission that the discretion should be exercised in favour of petitioner for taking further evidence in the matter, is that, otherwise, petitioner has no remedy whatsoever to enforce his claim. In support of this contention, Mr. Vakil relies upon section 4 of the Pensions Act, 1874. That section bars the jurisdiction of a Civil Court to entertain a suit relating to pension. This is true. But the section itself shows that this is so except in cases thereafter provided. In order to decide, therefore, the question as to whether petitioner has any effective remedy or not, one has to turn to sections 5 and 6 as well. Section 5 confers a right upon any person having a claim relating to a pension to prefer such claim to certain authorities mentioned therein, and S. 6 confers jurisdiction upon the Civil Court to take cognizance of any such claim on receipt of a certificate from the Collector or the other authorities mentioned therein. Therefore, Mr. Vakil is not right in contending that petitioner has no alternative remedy whatsoever. The alternative for filing a suit is already there. In fact, petitioner had availed himself of that opportunity. According to him, he withdrew it because he filed the suit without obtaining the certificate as required by section 6. It is important to notice that even though he did so as for back as 1959, he did not take any steps for the purpose of obtaining the necessary certificate from the officer concerned for a period of nearly two years and more. Instead, he tried to knock at the very doors which had been closed to him on more than one occasion, and, after taking some extra legal steps he invoked the jurisdiction of this Court. But Mr. Vakil contends that, under section 6, an effective decree cannot be passed by a Civil Court. He says that, under section 6, the Civil Court is precluded from making any order or decree 'by which the liability of the Government to pay such pension .. .. .. is affected directly or indirectly.' This is true. But at the same time, there cannot be any doubt that once a decision of a disputed question of fact is raised, the Government will ordinarily respect that decision. We cannot act in the present petition on the basis that the Government will not respect such a decision. But, if ultimately after the disputed question of fact is determined and the claim of petitioner to a pension is found to be true by a Civil Court, even if one assumes that the Government does not respect that decision, then, in our judgment, petitioner may have a right to invoke the extraordinary jurisdiction of this Court. But, having regard to the fact that petitioner had an opportunity to get that question fact decided and that, if his contention is correct that he has still a right to recover pension future, he has still a right to get that question decided by first approaching the appropriate authority to grant him a certificate and then filing a suit, we do not see any good reason as to why we should depart from the normal rule which High Courts in their discretion have applied to themselves of not undertaking a decision of disputed questions of facts in writ petitions. We are not quite satisfied with Mr. Vakil's contention that the fact in controversy is a simple one and can be decided on affidavits. In our judgments, the fact requires both oral and documentary evidence and an examination of the record of the former Baria State, all of which cannot satisfactorily be dealt with by filing affidavits alone. Under the circumstances, we have come to the conclusion that we should not exercise our discretion in favour of undertaking a decision of the fact in controversy and, on that ground, we propose to discharge the rule but under the circumstances of the case, without any costs.

(6) Mr. Vakil contends that, having regard to the fact that his claim has been rejected, it is most unlikely that the Collector or the other authority would issue a certificate to him. We cannot agree with this contention. The duty of issuing such certificate is imposed by the statute upon the Collector and the other authority and we must proceed on the basis that the authority would discharge that obligation honestly and bona fide without in any way being influenced by the fact that petitioner's claim had been rejected by the Government itself. If there is any grievance on the score of the non grant of the certificate, it is open to petitioner to take to measures so as to compel the authority concerned to discharge the duty in accordance with the provisions of the statute.

(7) However, before we part with this case, we may mention that the case of petitioner is that his salary was being paid to him from the revenues of the Baria State. From the record, which has been produced before us, it does not appear that petitioner had been given a chance by the authorities concerned of proving that fact. Before petitioner is driven to his remedy of obtaining a certificate and filing a suit, in our judgment, it will be better if the authorities furnish petitioner with that chance and then take a decision after giving him hearing and permitting him to produce such evidence as petitioner wants to rely upon.

(8) Rule discharged. No order as to costs.

(9) Petition dismissed


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