S.no. 51 v. Union Territory of J&K & Ors.

inquired through the vigilance Commissioner J & K high court and appropriate action be taken. (d) One in the nature of mandamus, commanding the private respondent to compensate the petitioner to the tune of ten laces for abusing the position and the person of petitioner for exploitation , for running the reputation as senior citizen and reputed professor in medical science and official respondents be directed to recover the same from the salary ad retirement benefits of the private respondents in exercise of public law writ remedy and further liberty be f given to the petitioner to avail the appropriate remedy for proper compensation and for punishment of the private respondent under law.

2. Perusal of the file reveals that petitioner had been engaged as Professor in the discipline of Paediatrics in Government Medical College, Anantnag, on academic arrangement basis in terms of SRO 24 of 2019 dated 10th January 2019 for a period of three years or till the post is filled up on regular basis or till he attains the age of 70 years whichever is the earliest. The order would also reveal that engagement of petitioner is purely on temporary basis for teaching purposes only and it shall not confer upon him any special claim/right for appointment against the post on regular basis as and when the same is made under rules.

3. In terms of Order no.262-GMCA of 2023 dated 16th December 2023, extension to the engagement of petitioner has been made by Principal, Government Medical College, Anantnag. A civil suit appears to have been filed by respondent no.5 before the court of District Mobile Magistrate (Traffic) Anantnag, in which certain orders had been passed. Against order dated 31st October 2023, passed by the aforesaid Magistrate, an appeal was preferred by present petitioner before the court of Additional District Judge, Anantnag. When the appeal was taken up on 8th December 2023, it came to limelight that respondent no.5 had withdrawn the suit and as a result thereof, the appeal became infructuous. WP(C) no.183/2024 CM no.335/2024

4. There are allegations at abundance levelled by petitioner against private person, viz. respondent no.5 herein. Petitioner’s assertion is that respondent no.5 is habitual of manhandling the situation and creating indiscipline and there are so many complaints pending against him but he has not been subjected to scrutiny as he is being protected by the officials in the Secretariat. There is also an allegation in writ petition that petitioner tried to persuade both Trial Court and Appellate Court to take appropriate action against respondent no.5 but his application was turned down on the ground that there was no lis pending. It is also alleged by petitioner that he is aggrieved of official respondents for not taking any action against respondent no.5 for his misconduct and misuse of judicial powers by Judicial Magistrate, Anantnag, who had no jurisdiction to entertain a suit. Petitioner also alleges that respondent no.5 is highly depreciable and it has an impact of far reaching consequence as it is not only the act of indiscipline and insubordination, it is an action of fraud and deception in official business, which shall be viewed with acute seriousness and particularly so, to curb this menace of indiscipline by respondent no.5; he has not only corrupted the officials but also misused the judicial forum as part of this corrupt practice which has added fuel which needs to be checked by this Court.

5. Petitioner seeks relief(s) against private person (respondent no.5) as if this Court is taking cognizance of a criminal complaint against respondent no.5 that too in a writ proceeding under Article 226 of the Constitution of India.

6. Sensationalization of superlative expressions hurled by petitioner in writ petition on hand is to earn empathy from vacuum and voidness. If one gazes at the material placed on record by petitioner, it obviously points out WP(C) no.183/2024 CM no.335/2024 and emphasizes pendency of some civil litigation between petitioner and respondent no.5, which even concluded and terminated in withdrawal of suit and dismissal of appeal as infructuous.

7. A very significant aspect of the Constitution of India is jurisdiction, it confers on the High Courts to issue writs. The writs have been among great safeguards provided by the British Judicial System for upholding the rights and liberties of the people. It was an act of great wisdom and foresight on the part of the Constitution-makers to introduce writ-system in India and, therefore, constitute the High Courts into guardians of people’s legal rights. It is a public law remedy. The High Court, while exercising its power of judicial review, does not act as an appellate body. It is concerned with illegality, irrationality and procedural impropriety of an order passed by the State or a statutory authority. In a writ petition, theoretically, the High Court has jurisdiction determining questions, both of fact and law, but, usually, the Court is reluctant to go into question of fact, requiring oral evidence for determination thereof. The attitude of the courts is that questions of fact are determined in an ordinary civil suit after adducing evidence and not by/in a writ petition inasmuch as writ jurisdiction is, in core, supervisory and not appellate jurisdiction. Same is true about present case. Reliance in this regard is placed on D.L.F. Housing Construction v. Delhi Municipality AIR 1976 SC 386; Union of India v. Bata India Ltd AIR 1994 SC 921; M/s Padmavathi Constructions v. The A.P. Industrial Infrastructure Corp. Ltd AIR 1997 AP 1; and Goa v. Leukoplast (India) Ltd AIR 1997 SC 1875; and Grid Corpn. of Orissa Ltd. v. Timudu Oram (2005) 6 SCC 156. WP(C) no.183/2024 CM no.335/2024

8. As can be seen from the memo of writ petition, triable issues as usually emanate in criminal cases, have been raised, which require full-fledged trial, production of evidence and adducing and examining of witnesses, which cannot be undertaken in writ proceedings under and in terms of Article 226 of the Constitution of India.

9. It is also vivid and palpably self-evident from plain reading of writ petition that petitioner demands adjudication and determination of questions of facts, which he could have done by institution of an ordinary civil suit, in which he could have adduced evidence. The reliance placed by learned counsel for petitioner on the judgements reported in AIR 2018 SC 1499, AIR 2023 SC 1627, are distinguishable in facts and circumstances of the present case.

10. This Court, in writ jurisdiction, cannot go into questions of fact that requires oral evidence for determination and are best decided in a civil suit for the reason that questions of fact cannot be adjudicated upon, settled and decided without evidence, both oral or documentary. Therefore, it would be obvious and grave error to scan evidence or to reappreciate evidence and arrive at a finding of fact. Reference in this regard is made to State of U.P. v. Chemtreat Chemical (2002) 10 SCC 593; Director of Entry Tax v. Sunrise Timber Company (2008) 15 SCC 287; and Mahesh Chandra Gupta v. U.O.I. (2009) 8 SCC 273.

11. It is well settled law that a Court of law is a Court of equity and in granting relief under Article 226, the Courts will bear in mind the conduct of the party who invokes the jurisdiction. This principle emanates from the very nature of the power of interference under Article 226 of the Constitution of India, i.e. a discretionary jurisdiction. The attempt of the Supreme Court WP(C) no.183/2024 CM no.335/2024 is prefaced by saying that there is no definition of “material facts” in the Code of Civil Procedure nor in any statute, which come before the courts. But the Supreme Court in a series of judgements has laid down that all facts necessary to formulate a complete cause of action should be termed as “material facts”. All basic and primary facts, which must be proved by a party to establish the existence of cause of action or defence are material facts. According to dictionary meaning, ‘material’ means ‘fundamental’, ‘vital’, ‘basic’, ‘cardinal', ‘central’, ‘crucial’, ‘decisive’, ‘essential’, ‘pivotal’, ‘indispensable’, ‘elementary’ or ‘primary’. [Burton's Legal Thesaurus, (Third Edn.); p.349]. The phrase ‘material facts’, therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, ‘material facts’ are facts upon which the party’s cause of action or defence depends. ‘Material facts’, in other words, mean the entire bundle of facts which would constitute a complete cause of action. Regard being had from Arunima Baruah v. U.O.I. (2007) 6 SCC 120; Bhagubhai Dhanabhai Khalasi v. State of Gujarat (2007) 4 SCC 241; S.J.S. Business Enterprises (P) Ltd. v. State of Bihar (2004) 7 SCC 166; Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar (2009) 9 SCC 310; and Prestige Lights Ltd. v. State Bank of India (2007) 8 SCC

12. In Sanjay Kumar Jha v. Prakash Chandra Chaudhary and others, 2019 (2 SCC 499, it has been held by the Supreme Court that under Article 226 of the Constitution of India, the High Court does not adjudicate upon affidavits, disputed questions of fact as it is well settled that in proceedings under Article 226, the High Court cannot sit as a Court of Appeal over the findings recorded by a competent administrative authority, nor WP(C) no.183/2024 CM no.335/2024 reappreciate evidence for itself to correct the error of fact, that does not go to the root of jurisdiction. The High Court does not ordinarily interfere with the findings of fact based on evidence and substitute its own findings. In exercise of discretionary power of judicial review under Article 226, the High Court might interfere with administrative matters only if the decision is violative of fundamental or basic principles of justice and fair play or suffers from any patent or flagrant error. It is true that the High Court might rectify, in exercise of its power of judicial review, an error of law or even an error of fact, for sufficient reasons, if the error breaches fundamental or basic principles of justice or fair play or if the error is patent and/or flagrant, but not otherwise. Even in cases where the High Court finds an apparent factual error which goes to the root of the decision, the appropriate course of action would be to give the opportunity to the authority concerned to rectify the error. It is only in the rarest of cases, where the factual error is so obvious that it is rectifiable by the court itself, that the court might, to prevent delay and consequential denial and/or miscarriage of justice, rectify the error.

13. It is well settled proposition of law that when there are disputed question of facts involved in a case, the High Court should not exercise its jurisdiction under Article 226. Particularly in cases where tortious liability and negligence is involved, it has been held that the remedy under Article 226 may not be proper. It would be apposite to place reliance on Chairman, Grid Corpn. of Orissa Ltd. (Gridco) v. Sukamani Das, 1999 (7) SCC 298; S.P.S. Rathore v. State of Haryana, 2005 (10) SCC 1.

14. The Supreme Court in Shubhas Jain v. Rajeshwari Shivam, 2021 SCC Online SC 562, has held that the High Court exercising its extraordinary WP(C) no.183/2024 CM no.335/2024 writ jurisdiction under Article 226 does not adjudicate hotly disputed questions of facts. In Union of India v. Puna Hinda, 2021 (10) SCC 690, it was held that the dispute could not be raised by way of a writ petition on the disputed questions of fact.

15. In view of the legal proposition, as stated above, the instant writ petition is not maintainable and hence requires to be dismissed.

16. For all what has been discussed and stated above, writ petition is lacking in merit and is, accordingly, dismissed with connected CM(s). Srinagar 02.02.2024 Ajaz Ahmad, Secy. Whether approved for reporting? Yes/No (Vinod Chatterji Koul) Judge WP(C) no.183/2024 CM no.335/2024