Osmanabad Dist.Swatantrya ... vs Jagannath Pandurang Kshirsagar & ...
2015 Latest Caselaw 596 Bom

                                                                                 WP/4372/1994
                                                 1

                        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                   BENCH AT AURANGABAD




                                                                                
                                   WRIT PETITION NO. 4372 OF 1994




                                                        
     1. Osmanabad District Swatantra
     Sainik Samiti, (Through its
     Secretary, Shri Dattatraya Yadavrao
     Ganesh, aged 70 years, Occ. Social




                                                       
     Work, r/o Sanja Ves, Osmanabad),
     Osmanabad.

     2. The President,
     Dharashiv Prashala School




                                            
     Committee : Shri Rajendra
     s/o Vithalrao Deshmukh, 
     Aged major, Occ. Legal
     Profession, R/o Vidya Nagar,
     Osmanabad) Osmanabad.                                        ..Petitioners
                            
     Versus

     1. Jagannath Pandurang Kshirsagar,
     Aged 30 years, Occ. Headmaster,
      

     Terna High School, Osmanabad.

     2. The Education Officer (S),
   



     Zilla Parishad, Osmanabad.

     3. The Presiding Officer,
     School Tribunal, Aurangabad.                                 ..Respondents





                                             ...
              Advocate for Petitioner : Shri Ajinkya Kale h/f Shri S.B.Talekar
                         AGP for Respondent 2 : Shri V.G.Shelke
                  Respondent 3 : Deleted vide order dated 15.10.2015.
                                             ...





                                   CORAM : RAVINDRA V. GHUGE, J.

Dated: December 03, 2015 ...

ORAL JUDGMENT :-

1. This petition was admitted on 17.2.1995. Interim relief in the nature

of staying the direction to pay backwages was granted by the learned

Division Bench of this Court. Subsequently, since the matter fell within the

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realm of the Single Judge Bench, this petition is placed before this Court for

final hearing.

2. None present on behalf of respondent No.1, despite service of court

notice. Learned AGP appears on behalf of respondent No.2.

3. The petitioners have challenged the judgment of the School Tribunal

dated 18.8.1994 in Appeal No.60 of 1990, by which the School Tribunal has

set aside the oral termination of respondent No.1 and the petitioners are

directed to reinstate him on the post of Headmaster with continuity of

service and backwages.

4. Shri Kale, learned Advocate on behalf of the petitioners submits that

respondent No.1 had brought a case of oral termination dated 12.6.1990

before the School Tribunal. His contention was that he was prevented from

signing the Muster Roll with effect from 12.6.1990. Per contra, the

petitioners had stated through their written statement that respondent

No.1 was never terminated, much less orally. There was no cause of action

as there was no termination. It was pointed out that respondent No.1 on

his own request was posted as Headmaster of the Siddheshwar Nivasi

Vidhyalaya, Warwanti by order dated 2.6.1990. Though he accepted the

order, he had a change of thought and by refusing to acknowledge the

receipt of the order, he took up a plea of oral termination.

5. Shri Kale further submits that in the backdrop of the contention /

WP/4372/1994

stand put forth by the petitioners, respondent No.1 could have volunteered

to report for duties as a Headmaster by moving an application before the

School Tribunal. Of his own choice, he did not prefer to report for duties,

despite the contention of the petitioner / management that he has not

been terminated. It, therefore, indicates that he was more interested in

pursuing his stand of oral termination and factually had no intention of

reporting for duties.

6.

Shri Kale further points out an inspection report placed on record

from page Nos. 47 to 53. He submits that it is an inspection report of the

Terana High School, Osmanabad, which was on "No grant basis". Date of

inspection is 22.10.1994 at Sr. No.4 on page No.47. Date of last inspection

is 29.12.1993. Respondent No.1 has signed as the Incharge Headmaster of

the said School. His name is shown at Sr. No.1 in the list of Staff Members

on Page 53 indicating his designation "Incharge Headmaster". As on

22.10.1994, he is shown to have put in four years in service out of a total

service of eleven years.

7. Shri Kale submits that this document has not been refuted by

respondent No.1, inasmuch as, it indicates that respondent No.1 had

preferred to abandon his service with the petitioners and had joined the

Terana High School, Osmanabad. As such, on the date of the institution of

the appeal, in 1990, he had joined the Terana High School, by keeping the

petitioners in dark. He, therefore, submits that the impugned judgment

deserves to be quashed and set aside, only on account of respondent No.1

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having played a fraud on the School Tribunal as well as on the petitioner.

8. Respondent No.1, who had initially appeared on Caveat and was

represented by an Advocate, has not preferred to file his affidavit-in-reply.

9. Learned AGP submits that the Education Officer has no role to play in

this matter.

10.

I find from the impugned judgment that though a specific stand was

taken by the petitioners that respondent No.1 has not been terminated and

is remaining absent of his own accord, the School Tribunal could have

disposed off the appeal by directing the appellant / respondent No.1 to

report for duties with promptitude. If he had any grievance against the

order dated 2.6.1990, he could have preferred a separate appeal for

assailing the said order by which he was posted as Headmaster by the

petitioners at their Siddheshwar Nivasi Vidhyalaya, Warwanti.

11. When the purported cause of action of oral termination was refuted

by the management and when it was contended that the appellant has not

been terminated and he could very well continue in service, I am of the

view that the School Tribunal had no cause of action before it and the

appeal should have been disposed off on the statement of the petitioners as

set out in their written statement. For this reason alone, the impugned

judgment is rendered unsustainable.

WP/4372/1994

12. There is a curious angle to this proceeding. The Inspection Report

dated 22.10.1994 of the Terana High School, Osmanabad indicates that

respondent No.1 was an in-charge Headmaster. The said Inspection Report

and the list of staff members has not been denied by respondent No.1. The

said report is signed by respondent No.1 indicating that he had put in four

years as in-charge Headmaster with the Terana High School Osmanabad, as

on 22.10.1994 i.e. the date of inspection.

13.

The report indicates that respondent No.1 teaches Marathi subject

for the 7th and 10th standards. Photostat copy as well as the typed copy of

the Inspection Report is on record. It, therefore, appears that respondent

No.1 avoided reporting for duties with the petitioner school at Warwanti

and joined the Terana High School, Osmanabad, immediately thereafter.

This aspect was not within the knowledge of the petitioners before the

School Tribunal. However, it cannot be ignored that respondent No.1 has

not brought this aspect to the notice of the School Tribunal.

14. In the peculiar facts as above, I am of the view that respondent No.1

has suppressed his employment with Terana High School from 1990 onwards.

He took a stand of oral termination in the face of a categoric denial of oral

termination by the petitioners. Intention appears to be to join the Terana

High School. Reason for suppressing these facts can only be for self serving

purposes and for drawing an advantage from the same. In fact, respondent

No.1 has succeeded in his ill motives in view of the fact that the School

Tribunal allowed his appeal owing to suppression of material facts.

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15. The Apex Court in the matter of Kishore Samrite Vs. State of U.P.,

[(2013) 2 SCC 398], has considered the case of playing a fraud on the Court

and the abuse of the process of the Court. Paragraph Nos.32 till 32.8, 36,

37 and 38 of the Kishore Samrite's judgment (supra) read as under:-

"32. The cases of abuse of the process of court and such allied

matters have been arising before the Courts consistently. This Court has had many occasions where it dealt with the cases of this kind

and it has clearly stated the principles that would govern the obligations of a litigant while approaching the court for redressal of

any grievance and the consequences of abuse of the process of court. We may recapitulate and state some of the principles. It is difficult to state such principles exhaustively and with such accuracy that

would uniformly apply to a variety of cases. These are:

(i) Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of

facts and came to the courts with 'unclean hands'. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor entitled to any relief.

(ii) The people, who approach the Court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.

(iii) The obligation to approach the Court with clean hands is an absolute obligation and has repeatedly been

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reiterated by this Court.

(iv) Quests for personal gains have become so intense that those involved in litigation do not hesitate to take

shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have over-shadowed the old ethos of

litigative values for small gains.

(v) A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with

tainted hands is not entitled to any relief, interim or final.

(vi) The Court must ensure that its process is not

abused and in order to prevent abuse of the process the court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the

Court would be duty bound to impose heavy costs.

(vii) Wherever a public interest is invoked, the Court

must examine the petition carefully to ensure that there is genuine public interest involved. The stream of justice

should not be allowed to be polluted by unscrupulous litigants.

(viii) The Court, especially the Supreme Court, has to maintain strictest vigilance over the abuse of the process

of court and ordinarily meddlesome bystanders should not be granted "visa". Many societal pollutants create new problems of unredressed grievances and the Court should endure to take cases where the justice of the lis well-justifies it.

"33. The party not approaching the Court with clean hands would be liable to be non-suited and such party, who has also succeeded in

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polluting the stream of justice by making patently false statements,

cannot claim relief, especially under Article 136 of the Constitution. While approaching the court, a litigant must state correct facts and

come with clean hands. Where such statement of facts is based on some information, the source of such information must also be disclosed. Totally misconceived petition amounts to abuse of the

process of the court and such a litigant is not required to be dealt with lightly, as a petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse

of the process of the court. A litigant is bound to make "full and true disclosure of facts". (Refer: Tilokchand H.B. Motichand and Ors. v.

Munshi and Anr. : 1969 (1) SCC 110]; A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai

Sangam and Anr. : (2012) 6 SCC 430]; Chandra Shashi v. Anil Kumar Verma : (1995) 1 SCC 421]; Abhyudya Sanstha v. Union of India and Ors. : (2011) 6 SCC 145]; State of Madhya Pradesh v. Narmada

Bachao Andolan and Anr. : (2011) 7 SCC 639]; Kalyaneshwari v. Union of India and Anr. : (2011) 3 SCC 287)].

37. The person seeking equity must do equity. It is not just the clean hands, but also clean mind, clean heart and clean objective

that are the equi-fundamentals of judicious litigation. The legal maxim jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem, which means that it is a law of nature that one should not be enriched by the loss or injury to another, is

the percept for Courts. Wide jurisdiction of the court should not become a source of abuse of the process of law by the disgruntled litigant. Careful exercise is also necessary to ensure that the litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose the true facts and approach the court with clean hands.

38. No litigant can play 'hide and seek' with the courts or adopt

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'pick and choose'. True facts ought to be disclosed as the Court

knows law, but not facts. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands.

Suppression or concealment of material facts is impermissible to a litigant or even as a technique of advocacy. In such cases, the Court is duty bound to discharge rule nisi and such applicant is required to

be dealt with for contempt of court for abusing the process of the court. K.D. Sharma v. Steel Authority of India Ltd. and Ors. : (2008) 12 SCC 481]."

16.

Considering the totality of the fact situation as is recorded herein

above, this petition is allowed. The impugned judgment and order dated

18.8.1994, delivered by the School Tribunal is quashed and set aside.

Appeal No.60 of 1990, filed by respondent No.1 stands dismissed.

17. Rule is made absolute in the above terms.

( RAVINDRA V. GHUGE, J. ) ...

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