Bombay High Court

Sonyabapu Patilba Dahiphale vs The Government Of Maharashtra, ... on 16 August, 2016

Bench: R.V. Ghuge

                                             1




                                                                               
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                       
                            WRIT PETITION NO.5417 OF 2015

    Sonyabapu Patilba Dahiphale,
    Age-75 years, Occu-Nil,




                                                      
    R/o Chinchpur Ijade, Kuttarwadi,
    Taluka Pathardi, Dist.Ahmednagar                               PETITIONER
    VERSUS 




                                            
    1. The Government of Maharashtra,
        Through Secretary for Irrigation
        Department, Mantralaya, Mumbai,
                              
    2. Command Area Development Authority,
        Sinchan Bhawan, Nagar-Aurangabad Road,
                             
        Ahmednagar
        Through its Superintending Engineer/
        Administrator,

    3. The Executive Engineer,
      


        Ahmednagar Medium Project Division,
        Nagar-Aurangabad Road, Ahmednagar,
   



    4. Sub Divisional Engineer,
        Cina Canal Project,
        Sub Division No.2,





        Nagar-Aurangabad Road,
        Ahmednagar.                                                RESPONDENTS

Mr.P.V.Barde, Advocate for the petitioner. Mr.P.N.Kutti, AGP for the respondent/State.

Mr.G.N.Patil, Advocate for respondent Nos. 2 to 4.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 16/08/2016 ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

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consent of the parties.

2. The petitioner is aggrieved by the judgment dated 05/11/2014

delivered by the Labour Court, Ahmednagar by which his Application

(IDA) No.12/2011 has been rejected. Consequentially, his claim for

recovery of money due from an employer u/s 33(C)(2) of the I.D.Act,

1947 has been rejected.

3. I have considered the strenuous submissions of Mr.Barde,

learned Advocate for the petitioner and the learned Advocates

appearing on behalf of respondent Nos. 1 to 4.

4. The petitioner had joined respondent Nos.3 and 4 on

21/06/1986 as an Unskilled Labourer. He was granted the benefits

under the Kalelkar Award by being brought on Converted Regular

Temporary Establishment (C.R.T.E.) after completion of 5 years w.e.f.

21/06/1991. Going by the date of birth recorded in the service book,

he was to retire on 30/04/1997. He was continued in employment

even thereafter on the basis of certain documents upto 24/06/2005.

After it was noticed that he had continued in employment beyond his

date of retirement for about 8 years and 2 months on the basis of

fabricated documents, he was terminated from service.

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5. The petitioner approached the Maharashtra Administrative

Tribunal by filing original Application No.601/2006. The same was

disposed of with liberty to approach the appropriate Court.

6. The petitioner prayed for retiral and pensionary benefits by

filing Complaint (ULP) No.23/2007 before the Industrial Court. By

judgment dated 10/09/2009, the Industrial Court arrived at a

specific conclusion that the petitioner has produced a false record

and had continued in employment with the respondent/Department

over a period of about 8 years and 2 months. Consequentially, the

Industrial Court dismissed the complaint by the judgment dated

10/09/2009 and deprived the petitioner of retiral benefits. It is

stated that even gratuity was forfeited keeping in view that the

conduct of the petitioner did amount to moral turpitude.

7. The petitioner approached this Court vide WP No.1411/2010

challenging the judgment of the Industrial Court. By its judgment

dated 06/01/2011, this Court dismissed the petition by observing in

paragraph No.3 as under :-

"3. The petitioner's contention is that he was entitled to receive the pensionary benefits and gratuity. The petitioner was appointed on 21st June, 1986 as a daily wager. He was brought

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on C.R.T. w.e.f. 21st June, 1991. He was, however, terminated from the service on 24th June, 2005 as a result of departmental

enquiry on the charge that he had concealed date of birth and thereafter worked for eight (8) years more over and above the date of superannuation. The petitioner admitted that he

concealed the real date of birth. There is no difficulty in holding that though he was supposed to be superannuated on 30 th April, 1997, yet, he continued to work for period of about eight

(8) years more. Admittedly, he was paid the salary for the

period of said eight (8) years. There is no recovery of the amount, claimed by the respondents from the petitioner, in

respect of the payment made to him for the period of about eight (8) years which was the employment in excess the date of superannuation."

8. As a result of the order of this Court, the petitioner is deprived

of retiral benefits, pensionary benefits as well as gratuity. This

Court had sustained the conclusions of the Industrial Court that the

petitioner had continued in employment by concealing his real date of

birth and on the basis of fabricated documents, he worked for a

period of 8 years and 2 months in excess of the normal service which

would have ended on 30/04/1997.

9. The petitioner then preferred Ref.(IDA) No.12/2011 and claimed

difference of wages under the Kalelkar Award from 21/06/1991 to

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30/04/1997, provident fund accumulations from 01/05/1997 to

24/06/2005 and leave encashment for the period 21/06/1991 to

24/06/2005.

10. The Labour Court, by the impugned judgment, has dismissed

the application by concluding that the difference in wages from

21/06/1991 to 30/04/1997 has already been paid and the issue of

leave encashment from 21/06/1991 till 24/06/2005 has been dealt

with by the Industrial Court and the prayer has been rejected. The

issue of provident fund is also held to be dealt with by the Industrial

Court and rejected.

11. In the light of the facts as recorded above and considering the

judgment of the Hon'ble Supreme Court in the matter of Syed Abdul

Qadir and others Vs.State of Bihar and others, 2009(3) SCC 475 and

in the matter of State of Punjab Vs.Rafiq Masih (White Washer), 2015

DGLS (Soft.) 320., the employer was entitled to recover such excess

payments in the event it is established that the payments were made

solely on the basis of the fraud or misrepresentation played by the

beneficiary.

12. In the instant case, it is established that the petitioner has

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played a fraud on the respondents and had continued in employment

from 01/05/1997 till 24/06/2005. In my view, this was a fit case for

directing recovery of all amounts of salaries/wages paid to the

petitioner for 8 years. However, I am not issuing the said directions

considering the following aspects :-

[a] The petitioner is about 76 years old today and is a widower.

[b] He has been deprived of his entire retiral and pensionary benefits.

[c] This Court, in its order dated 06/01/2011 (reproduced earlier), had recorded that the respondents have not sought recovery of

the wages for the period of 8 years.

13. In so far as the contention of the petitioner that provident fund

contributions which have been deducted from his wages for the

period of 01/05/1997 till 24/062005 be paid to him, I am not

inclined to issue the said directions keeping in view that this Court

has already come to a conclusion by order dated 06/01/2011 in WP

No.1411/2010 that the petitioner deserves to be deprived of all

benefits post retirement.

14. So also, the Hon'ble Supreme Court in the matter of Dalip

Singh Vs. State of U.P. (2010) 2 SCC 114 and in the matter of Kishore

Samrite Vs. State of UP and others, (2013) 2 SCC 398 has concluded

that when it is revealed that a litigant has played a fraud on the

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Court or has attempted to misrepresent before the Court, deserves to

be deprived of any relief even if he may be having a good case.

Paragraph Nos.34 to 38 of the Kishore Samrite judgment read as

under :-

"34. It has been consistently stated by this Court that the entire journey of a Judge is to discern the truth from the

pleadings, documents and arguments of the parties, as truth is the basis of the justice-delivery system.

35. With the passage of time, it has been realised that people used to feel proud to tell the truth in the Courts, irrespective of

the consequences but that practice no longer proves true, in all cases. The Court does not sit simply as an umpire in a contest between two parties and declare at the end of the combat as to

who has won and who has lost but it has a legal duty of its

own, independent of parties, to take active role in the proceedings and reach at the truth, which is the foundation of administration of justice. Therefore, the truth should become the

ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the Courts to become active seekers of truth. To enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury,

prevarication and motivated falsehood, must be appropriately dealt with. The parties must state forthwith sufficient factual details to the extent that it reduces the ability to put forward false and exaggerated claims and a litigant must approach the Court with clean hands. It is the bounden duty of the Court to ensure that dishonesty and any attempt to surpass the legal

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process must be effectively curbed and the Court must ensure that there is no wrongful, unauthorised or unjust gain to anyone

as a result of abuse of the process of the Court. One way to curb this tendency is to impose realistic or punitive costs.

36. The party not approaching the Court with clean hands

would be liable to be non-suited and such party, who has also succeeded in 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 v. Munshi, A.

Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, Chandra Shashi v. Anil Kumar Verma, aAbhyudya Sanstha v. Union of India, State of Madhya Pradesh v. Narmada Bachao Andolan, Kalyaneshwari

v. Union of India)

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

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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 '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.)"

15. I find it quite astonishing that the petitioner had the courage of

approaching the Maharashtra Administrative Tribunal and thereafter

the Industrial Court despite it being established that he had

fraudulently continued in employment beyond retirement age by 8

years and 2 months which he had admitted and had claimed retiral

and pensionary benefits. An attempt was made to convince the Court

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that he is innocent and had rightly continued in service on the basis

of forged documents.

16. Considering this aspect, if any provident fund accumulations

are with the Provident Fund Department for the said period of illegal

service from 01/05/1997 to 24/06/2005, the same shall stand