RAVI S.DHAVAN - (1.) THE petitioner was a teacher initially appointed as Assistant Teacher by the Adhyaksh Zila Parishad at the Primary Pathshala, Roopur, district Mainpuri. THE present writ petition has been filed against the decision of the U. P. Public Services Tribunal (I), Lucknow dated 4 May 1982. THE petitioner lays a claim on duty and salary, post November 1978. His claim petition has been dismissed.
(2.) THE contention of the petitioner is that he had been suspended by an order of 15 September 1970 passed by the District Inspector of Schools, Mainpuri and had been placed under suspension. Later, he had been reinstated on April, 22, 1978 by the order of the District Education Officer, Mainpuri. On finding no response on his representation he made during the period of September 1972 to April 1978 and the last effort being on 19 January 1978, he was required by the District Inspector of Schools, Mainpuri to file documents in support of his letters. He submits that the District Government Counsel concerned was required to give his legal opinion on his suspension and that after this opinion he was reinstated and, thus, he claims his salary for the recovery of Rs. 39,277.40 with interest. THE claim of salary, is, in effect, from 15 September 1970. Before the Tribunal written statements were filed by the Basic Education Officer, Mainpuri as also the Zila Parishad, Mainpuri. THE contention of the opposite parties was that the appointment of the petitioner was purely temporary and during bis service the petitioner had been absent for about 480 days. It was further contended that the petitioner was asked to go for training to Agra but he did not do so and it was in October 1970, the specific date is not given, that the Zila Adhikari who was the Adhyaksh, Zila Parishad terminated the services of the petitioner. THE records were not shown to the Tribunal and the absence of the record was explained with the plea that the petitioner had dishonestly removed the departmental file and had made interpolations in every official, records. THE attendance register was produced but the original order of terminal ion which was claimed by the opposite parties was not produced This order of termination which was supposed to have been passed in October 1970 by the District Magistrate. It needs to be reiterated, that a specific date of the order of termination was mot intimated by the oposite parties to the Tribunal. THE other plea taken before the Tribunal even at the time of arguments was that the pinion of the District Government Counsel, to the effect that the suspension order was bad is not a document which could be relied upon as the petitioner has first to explain how he came about this document. THE Tribunal was influenced on the contention of the opposite parties that the petitioner some how managed to lay his hands on a copy of the opinion of the District Government Counsel. Reflecting upon his suspension on the matter whather the petitioner had been suspended rightly or wrongly was never gone into on merits by the Tribunal and it was left open. THE reflection on the opinion of the District Government Counsel implies nothing in the absence of the record, except that there may have been a suspension order. Earlier the petitioner had moved an application before the Tribunal summoning certain documents. This is the application which carried the order of June 9, 1980. The documents as summoned by the Tribunal apparently were never produced. This omission is explained that the departmental file itself had disappeared and the petitioner was responsible for it. This court is examining the matter under a writ of certiorari The opinion of the Tribunal to the effect, that there was an order of termination in October, 1970, on the basis of certain registers which were produced, is not on record as an order of the District Magistrate himself. The best evidence was the original order of the District Magistrate that there was an order of termination. This alone would have been the end of the matter. But this order was never produced and this order was in possession of the opposite parties. The best evidence not being produced implies that under the law the presumption under Section 114 (g) of the Evidence Act, 1872 goes against a party who is in possession of a document and will not produce it. It" the contention of the opposite parties is that the petitioner had removed the departmental file even this plea has to be proved. No material was placed before the Tribunal that the opposite party had either lodged a first information report or a complaint before an appropirate Magistrate that a government official was responsible for the disappearance of official records and that the petitioner was responsible for this Disappearance of official records is to be reported as a measure of formality and responsibility, and certain steps have to be taken to safeguard them.
(3.) IN so far as the opinion of the District Government Counsel is concerned to privilege was claimed by the opposite party that this was a document on which the Tribunal sought not to put its attention. It was open to the opposite party, if they so desired, to claim privilege that the opinion of the District Government Counsel was a matter privileged between the person who sought the opinion and the lawyer who gave it. This implies that the circumstances which were mentioned in the opinion of the learned District Government Counsel may not have been incorrect. The opinion only mentions that there was a suspension order and that it was bad. Thus, following from this, if there was a suspension order the possibility cannot be ruled out (a) that the suspension continued or (b) it may have been revoked. IN so far as the order of termination is concerned, the original was never produced before the court. The plea that the petitioner was responsible for the missing records, in reference to the context, no material or evidence was produced that the petitioner could be charged with yet another misdemeanour. This assessment of the Tribunal that the termination order existed or that there may not have been a suspension is not a finding which could hold in the circumstances pointed out by this court and, thus, the Tribunal has committed a manifest error, apparent on the face of the record and the matter needs to be looked into afresh in the light of the observations made by this court. While the record of the proceedings before the Tribunal may not be clear cut this court does consider it appropriate that the matter needs to be remanded to the Tribunal, aforesaid for looking into the matter afresh and in these circumstances the judgment of the Tribunal dated May, 4, 1982, Annexure '17' to the writ petition is quashed.;