Dilip vs Director Soldiers
2013 Latest Caselaw 812 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserve
 
Court No.1                                                                                                          AFR
 

 

 
Case :- WRIT - A No. - 25741 of 1993
 

 
Petitioner :- Dilip
 
Respondent :- Director Soldiers
 
Petitioner Counsel :- P.C. Srivastva,A.N.Singh,K.D.Tripathi
 
Respondent Counsel :- Rajesh Pathik,S.C.
 

 
Hon'ble B. Amit Sthalekar,J.

This writ petition has been filed by the petitioner challenging the order dated 19.6.1993 terminating the services of the petitioner w.e.f. 8.6.1993.

Briefly stated the facts of the case are that the petitioner was appointed on the post of Jamadar (Sweeper) through an appointment letter on 10.2.1987. According to him name of the petitioner was registered with the employment exchange and it was forwarded by the employment exchange , Allahabad to the office of the respondent no.2, Zila Sainik Kalyan Evam Punarwas Adhikari. Interview was held and after that the petitioner was selected for the post of Sweeper. According to the petitioner his services have been terminated by giving him salary in lieu of notice which has been published in the newspaper Amrit Prabhat on 20.6.1993 and his services have been terminated w.e.f. 8.6.1993. The notice itself is dated 19.6.1993 which was published in the newspaper on 20.6.1993 (Annexure-2 to the writ petition). The contention of the petitioner is that he was appointed in service in a regular manner but his services have been terminated without complying with the provisions of Article 311 (2) of the Constitution of India or without holding any departmental enquiry.

I have heard Sri Prakash Chandra Srivastava, learned counsel for the petitioner and Sri Rajesh Pathik, learned counsel appearing for the respondent no.2 as well as the learned Standing Counsel for the respondent no.1. A counter affidavit has been filed in this case by one Lt. Colonel Mahendra Singh posted as Zila Sainik Kalyan Evam Punarwas Adhikari, Allahabad as respondent no.2 as well as on behalf of respondent no.1.

According to the petitioner he was appointed in substantive capacity and in any case he has completed the period of probation and there is no order extending his probation, therefore, he would be deemed to have been substantively appointed on the post in question.

It has further been submitted that although by the impugned notice, it has been mentioned that his services are being terminated on payment of one month's salary in lieu of notice but he has not been paid one month's salary nor has any notice been given to him.

Sri Rajesh Pathik, learned counsel for the respondents on the other hand has raised a preliminary objection that the petitioner was paid one month's salary in lieu of notice as mentioned in the notice dated 19.6.1993 published in the newspaper Amrit Prabhat on 20.6.1993 ( Annexure 2 to the writ petition). In proof thereof he has referred to the document filed as Annexure-4 to the counter affidavit which is the advance pay paid to the petitioner for the period from 8th June to 7th July, 1993 on his termination w.e.f. 8.6.1993. Sri Pathik further submitted that in pursuance of this pay bill, the petitioner has also received his payment but this fact he has concealed in his writ petition and therefore, he has not come to the Court with clean hands and if he had disclosed this fact in this writ petition, he would not have got the interim order staying operation of the impugned notice dated 19.6.1993.

In para 6 of the writ petition the petitioner has stated that he has not been paid his salary of June, 1993 while he has received his salary only up to May, 1993. However, in para 10 of the writ petition, it has been stated that he is not received any notice as mentioned in the publication dated 20.6.1993 nor he has received any salary of one month as mentioned in the publication. However what is notable is that after the fact of receipt of one month's salary in lieu of notice was brought on record by the respondents through Annexure 4 to their counter affidavit, the petitioner in para 9 of the rejoinder affidavit, admitted that he had received Rs. 750/- in cash against his salary due on 1.7.1993.

It is quite obvious that if the petitioner had received Rs. 750/- in cash on 1.7.1993 it was in respect of the notice terminating his services dated 19.6.1993 as the notice subsequently mentions that he is being paid salary in lieu of notice terminating his services w.e.f. 8.6.1993. The notice itself was dated 19.6.1993 and published in the newspaper on 20.6.1993, therefore, even if, it was salary for the month of June, it was in lieu of notice terminating his services w.e.f. 8.6.1993. The fact, however, remains that this fact was never disclosed by the petitioner in his writ petition and subsequently admitted by him in para 9 of his rejoinder affidavit only after the pay bill for Rs. 750/- in cash received by him in lieu of notice terminating his services w.e.f. 8.6.1993, had been brought on record as Annexure 4 to the counter affidavit. Thus, the element of concealment of material fact is glaring in the case as rightly pointed out by the learned counsel for the respondents.

There is another aspect of the matter where again the petitioner is guilty of concealment of material fact from the Court. In his rejoinder affidavit the petitioner has filed the document as Annexure-1 G.O. dated 1.7.1965, whereby, the Zila Sanik Navik and Vaimanik Parishad, Uttar Pradesh have been conferred with the functions as office of the State Government. The designation of the posts and scale of pay have been mentioned in this G.O. Sri Pathik further pointed out that this G.O. is not complete and only a part of it has been filed and Annexure-(A) to the said G.O. has not been brought on record by the petitioner. In the course of argument he has placed before the Court the complete G.O. including the Annexure-(A), wherein, the post of Sweeper at Allhabad has been shown to be only 1 and that too part time. Sri Pathik, therefore, submitted that since the post of Sweeper at Allahabad was only 1 and that too part time, the petitioner could not have been appointed on the said post in a permanent capacity. He submits that it is for this reason that in the appointment order of the petitioner, Annexure-1 to the writ petition, it has been clearly mentioned that the said appointment is being made in a purely temporary capacity which was liable to be terminated on giving one month's notice or one month's salary in lieu of notice. According to him Annexure-(A) was deliberately not filed by the petitioner because it would have disclosed the fact that there was only 1 post of Sweeper at Allahabad which was also part time and therefore, the petitioner could not have claimed full time appointment against the said post.

From the documents on record there is absolutely no doubt that the petitioner has not approached the Court with clean hands at the time of filing of the writ petition. The petitioner has not brought on record the full copy of the G.O. dated 1.7.1965 containing Annexure-A thereto. The undisputed fact also remains that in his writ petition he did not mention that he had received salary for the month of June on 1.7.1993 through pay bill, filed as Annexure-4 to the counter affidavit which clearly mentioned that the said payment was advance pay for the period from 8.6.1993 to 7.7.1993 on his termination from 8.6.1993. This payment was ultimately received by the petitioner and admitted by him in para 9 of this rejoinder affidavit but only after it was brought on record and disclosed by the respondents in their counter affidavit.

Learned counsel for the petitioner next submitted that the petitioner has been working in terms of the interim order of this Court and therefore he may not be disturbed after so many years. The submission is futile and fallacious. The Court cannot shut its eyes to the fact that fraud vitiates every act and rights claimed with fraud as its foundation have no base or recognition in judicial concept. The Supreme Court in the case reported in AIR 1994 SC 853 1 (S.P. Chengalvaraya Naidu Vs Jagannath, in para 7 and 8, has held as follows:

"7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the, illegal-gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.

8. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the Court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to got an advantage. Jagnannth was working as a clerk with Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Exhibit B-15) in favour of Chunilar Sowcar regarding the property in dispute. He knew that the appellants had paid the total decreetal amount to his master Chunilar Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilar Sowcar. Nonproduction and even no-mentioning of the release deed at the trial tantamounts to paying fraud on the Court. We do not agree with the observations of the High Court that the appellants-defend ants could have easily produced the certified registered copy of Exhibit B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the ligation. If he withholds a vital document in order to gain advantage on the other side than he would be guilty of playing fraud on the Court as well as on the opposite party."

The Supreme Court in the case reported in 2003 8 SCC 319 (Ram Chandra Singh Vs. Savitri Devi and others) referred to a catina of decisions including S.P. Chengalvaraya Naidu (supra) and held that fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res-judicata. Para 23 to 27 read as follows:

" 23. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res-judicata.

24. In Smt. Shrisht Dhawan Vs. M/s. Shaw Brothers [AIR 1992 SC 1555], it has been held that:

" Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct."

25. In S.P. Chengalvaraya Naidu vs. Jagannath [ (1994) 1 SCC 1] this Court in no uncertain terms observed:

"...The principles of "finality of litigation" cannot be passed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not process of the Court is being abused. Property-grabbers, tax-evaders, bank-loan dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.... A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage... A litigant, who approaches the Court, is bound to produce all the documents executed by him, which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party."

26. In Indian Bank vs. Satyam Fibres (India) Pvt. Ltd. [ (1996) 5 SCC 550], this Court after referring to Lazarus Estates (supra) and other cases observed that "since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court it also amounts to an abuse of the process of the Court, that the Courts have inherent power to set aside an order obtained by practising fraud upon the Court, and that where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order". It was further held:

"The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers, which are resident in all Courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business."

27. In Chittaranjan Das vs. Durgapore Project Limited & Ors. [99 CWN 897], it has been held:

"Suppression of a material document which affects the condition of service of the petitioner, would amount to fraud in such matters. Even the principles of natural justice are not required to be complied within such a situation. It is now well known that a fraud vitiates all solemn acts. Thus, even if the date of birth of the petitioner had been recorded in the service returns on the basis of the certificate produced by the petitioner, the same is not sacrosanct nor the respondent company would be bound thereby."

So far as the question of the petitioner having continued on the post under the interim order of this Court is concerned, the appointment of the petitioner through the sole agency of the employment exchange cannot be said to be valid. Calling of names from the employment exchange is only one of the sources for obtaining candidates but it does not obviate the necessity of newspaper publication of a vacancy to validate the selection for meeting the requirements of Article 14 and 16 of the Constitution of India. The Supreme Court in the case reported in (1996) 6 SCC 216 (Excise Superintendent Mlkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and others) has held as follows: para 6 of the said judgment reads as follows:

"6. Having regard to the respective contentions, we are of the view that contention of the respondents is more acceptable which would be consistent with the principles of fair play, justice and equal opportunity. It is common knowledge that many a candidate is unable to have the name sponsored, though their names are either registered or are waiting to be registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning departments fro selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates."

The Supreme Court in the case of Secretary, State of Karnataka & Ors Vs. Umadevi & ors. has also held that services of persons whose appointments might have been irregular but who had been working for ten years or more, but without the intervention of orders of Court or of Tribunals might be considered for regularization as a one time measure. In para 44 of the said judgment reads as follows:

"44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra), and B.N. Nagrajan (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this court in the cases above referred to and to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed , who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filed up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."

The petitioner in the present case was appointed in 1987 and his services was terminated in June, 1993 and therefore, the petitioner cannot claim permanency or regularisation on the said post even if he has continued in service under the interim order of this Court in view of the law laid down by this Court in the case of Uma Devi (supra).

For the reasons aforesaid, the writ petition lacks merit and is accordingly dismissed.

There shall be no order as to cost.

Order Date :- 12.4.2013

N Tiwari