Dr. Atanu Biswas vs The State Of West Bengal And Others
2021 Latest Caselaw 2299 Cal

                                                               Item No.29



              IN THE HIGH COURT AT CALCUTTA
                        (Appellate Side)
              CONSTITUTIONAL WRIT JURISDICTION


                                          WP.ST 76 of 2020
                                          Date of decision:-24.03.2021


Dr. Atanu Biswas
                                                          ...Petitioner
                              -versus-

The State of West Bengal and others
                                                          ...Respondents

                                 with

                                          WPA 5935 of 2020


Dr. SK. Safikul Hasan and Ors.
                                                          ...Petitioner
                              -versus-

The State of West Bengal and others
                                                          ...Respondents



      CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
                   HON'BLE MR. JUSTICE ANIRUDDHA ROY


      Present:-    Md. Amjad Ali,
                   Mr. Shyamal Roy,Advocates
                                      ... for the petitioner

                   Mr. Sirsanya Bandopadhyay, Advocate
                                       ... for the respondents


                              ORDER

1. The present petition has been filed challenging the order dated

August 24, 2020 passed by the West Bengal Administrative Tribunal,

WP.ST 76 of 2020

Kolkata (for short 'the Tribunal') in O.A. No.243 of 2020. The Original

Application was filed praying for the following reliefs:-

"7.a) Issue a mandatory direction to quash / set aside /

rescind the Notification being Memo No. DME / SPL /

Corresp / 2020 / 185 dated 06.07.2020, as issued by the

authority concerned and also Memo No. HFW 23099 / 66 /

2020 / M / 905 dated 08.07.2020 be set aside / quash.

b) Given a direction upon the respondents, not to

cancel the admission of applicant M.D. Radiology at

Command Hospital E.C. Kolkata already admitted as per first

round counselling.

c) The respondents may kindly be directed to

entertained the representation which has pending and passed

a special order in respect of notification being Memo No.

DME / SPL Corresp/2020 /185 dated 06.07.2020 and the

Memo No. H.F.W. 23099 / 66 / 2020 / M / 905 dated

08.07.2020 not applicable to the petitioner, by a Special

Order passed in the light of submitted representation."

2. Opining on the merits of the controversy, the Original

Application filed by the petitioner was dismissed as he concealed the

factum of filing of writ petition in this Court for the same relief. Cost of

5,100/- was imposed.

3. Learned counsel for the petitioner submitted that once the

Tribunal did have the jurisdiction to entertain the issue there was no

question of expressing opinion on the merits of the controversy with

imposition of cost. The issue raised in the writ petition was pertaining to

WP.ST 76 of 2020

admission of the petitioner in MD course. The petitioner was not legally

trained though he is a graduate in medicine. He may have been given a

wrong advice as a result of which the writ petition was filed in this Court as

well as the Original Application before the Tribunal. There was no

intention to mislead the Court as he has not taken any benefit therefrom. He

is a young doctor. In fact, the Tribunal had wrongly entertained the

Original Application once, it did not have the jurisdiction. Opinion on the

merits of the controversy has been expressed. The will prejudice the writ

petition filed by him, which is pending in this Court.

4. On the other hand learned counsel for the respondent

submitted that the matter does not end with the concealment of factum of

filing of writ petition by the petitioner before this Court prior to the filing

of Original Application before the Tribunal.

5. He further referred to the pleadings in CAN 1 of 2020 filed by

the petitioner herein, wherein it has been specifically stated that filing of

writ petition before this Court was informed to the counsel before filing the

Original Application before the Tribunal. The same was filed as the writ

petition in this Court was not numbered because of COVID-19 pandemic.

He further submitted that there was no error in the order passed by the

Tribunal whereby the Original Application filed by him was dismissed with

cost of 5,100/-. In fact, considering the conduct of the petitioner cost

should have been on higher side. He further referred to the pleadings in

Para 11 of CAN No.1 of 2020 wherein it has been stated that after dismissal

of the Original Application by the Tribunal the petitioner had filed

application in the writ petition filed by him before this Court to withdraw

his name therefrom.

WP.ST 76 of 2020

6. Heard learned Counsel for the parties and perused the paper

book.

7. The case in hand is a glaring example as to how the litigants

especially the educated ones, play with the Courts. They indulge in 'forum

hunting', conceal material facts and try to mislead.

8. The Hon'ble the Supreme Court has time and again

commented adversely on a litigant who approaches the Court with unclean

hands. In Abhyudya Sanstha v. Union of India reported as (2011) 6 SCC

145, the Hon'ble the Supreme Court, while declining relief to the

petitioners therein, who did not approach the Court with clean hands,

opined as under:-

"16. In our view, the appellants deserve to be

non suited because they have not approached the Court with

clean hands. The plea of inadvertent mistake put forward by

the learned senior counsel for the appellants and their

submission that the Court may take lenient view and order

regularisation of the admissions already made sounds

attractive but does not merit acceptance. Each of the appellants

consciously made a statement that it had been granted

recognition by the NCTE, which necessarily implies that

recognition was granted in terms of Section 14 of the Act read

with Regulations 7 and 8 of the 2007 Regulations. Those

managing the affairs of the appellants do not belong to the

category of innocent, illiterate/uneducated persons, who are

not conversant with the relevant statutory provisions and the

WP.ST 76 of 2020

court process. The very fact that each of the appellants had

submitted application in terms of Regulation 7 and made itself

available for inspection by the team constituted by WRC,

Bhopal shows that they were fully aware of the fact that they

can get recognition only after fulfilling the conditions specified

in the Act and the Regulations and that WRC, Bhopal had not

granted recognition to them. Notwithstanding this, they made

bold statement that they had been granted recognition by the

competent authority and thereby succeeded in persuading this

Court to entertain the special leave petitions and pass interim

orders. The minimum, which can be said about the appellants

is that they have not approached the Court with clean hands

and succeeded in polluting the stream of justice by making

patently false statement. Therefore, they are not entitled to

relief under Article 136 of the Constitution. This view finds

support from plethora of precedents. In Hari Narain v. Badri

Das reported as AIR 1963 SC 1558, G. Narayanaswamy

Reddy v. Govt. of Karnataka reported as (1991) 3 SCC 261

and large number of other cases, this Court denied relief to the

petitioner/appellant on the ground that he had not approached

the Court with clean hands. In Hari Narain v. Badri Das

(supra), the Court revoked the leave granted to the appellant

and observed:"

"It is of utmost importance that in making

material statements and setting forth grounds in applications

for special leave made under Article 136 of the Constitution,

WP.ST 76 of 2020

care must be taken not to make any statements which are

inaccurate, untrue or misleading. In dealing with applications

for special leave, the Court naturally takes statements of fact

and grounds of fact contained in the petitions at their face

value and it would be unfair to betray the confidence of the

Court by making statements which are untrue and misleading.

Thus, if at the hearing of the appeal the Supreme Court is

satisfied that the material statements made by the appellant in

his application for special leave are inaccurate and misleading,

and the respondent is entitled to contend that the appellant may

have obtained special leave from the Supreme Court on the

strength of what he characterises as misrepresentations of facts

contained in the petition for special leave, the Supreme Court

may come to the conclusion that in such a case special leave

granted to the appellant ought to be revoked."

9. In G. Narayanaswamy Reddy v. Govt. of Karnataka's case

(supra), the Court noted that the appellant had concealed the fact that the

award could not be made by the Land Acquisition Officer within the time

prescribed under Section 11A of the Land Acquisition Act because of the

stay order passed by the High Court and observed:-

" ......Curiously enough, there is no reference in the

special leave petitions to any of the stay orders and we

came to know about these orders only when the

respondents appeared in response to the notice and filed

their counter affidavit. In our view, the said interim

orders have a direct bearing on the question 11 raised

WP.ST 76 of 2020

and the non-disclosure of the same certainly amounts to

suppression of material facts. On this ground alone, the

special leave petitions are liable to be rejected. It is well

settled in law that the relief under Article 136 of the

Constitution is discretionary and a petitioner who

approaches this Court for such relief must come with

frank and full disclosure of facts. If he fails to do so and

suppresses material facts, his application is liable to be

dismissed. We accordingly dismiss the special leave

petitions."

10. In Dalip Singh v. State of U.P. reported as (2010) 2 SCC 114,

the Hon'ble the Supreme Court noticed the progressive decline in the values

of life and observed:-

" For many centuries Indian society cherished

two basic values of life i.e. "satya" (truth) and "ahinsa"

(non- violence). Mahavir, Gautam Buddha and Mahatma

Gandhi guided the people to ingrain these values in their

daily life. Truth constituted an integral part of the

justice- delivery system which was in vogue in the pre-

Independence era and the people used to feel proud to

tell truth in the courts irrespective of the consequences.

However, post-Independence period has seen drastic

changes in our value system. The materialism has

overshadowed the old ethos and the quest for personal

gain has become so intense that those involved in

WP.ST 76 of 2020

litigation do not hesitate to take shelter of falsehood,

misrepresentation and suppression of facts in the court

proceedings. In the last 40 years, a new creed of litigants

has cropped up. Those who belong to this creed do not

have any respect for truth. They shamelessly resort to

falsehood and unethical means for achieving their goals.

In order to meet the challenge posed by this new creed

of litigants, the courts have, from time to time, evolved

new rules and it is now well established that 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."

11. In Moti Lal Songara v. Prem Prakash @ Pappu and

another reported as (2013) 9 SCC 199, the Hon'ble the Supreme Court,

considering the issue regarding concealment of facts before the court, while

observing that "court is not a laboratory where children come to play",

opined as under:-

"18. The second limb of the submission is

whether in the obtaining factual matrix, the order passed

by the High Court discharging the accused respondent is

justified in law. We have clearly stated that though the

respondent was fully aware about the fact that charges

had been framed against him by the learned trial Judge,

yet he did not bring the same to the notice of the

revisional court hearing the revision against the order

taking cognizance. It is a clear case of suppression. It

WP.ST 76 of 2020

was within the special knowledge of the accused. Any

one who takes recourse to method of suppression in a

court of law, is, in actuality, playing fraud with the

court, and the maxim supressio veri, expressio falsi, i.e.,

suppression of the truth is equivalent to the expression

of falsehood, gets attracted. We are compelled to say so

as there has been a calculated concealment of the fact

before the revisional court. It can be stated with certitude

that the accused- respondent tried to gain advantage by

such factual suppression. The fraudulent intention is writ

large. In fact, he has shown his courage of ignorance and

tried to play possum. The High Court, as we have seen,

applied the principle "when infrastructure collapses, the

superstructure is bound to collapse". However, as the

order has been obtained by practising fraud and

suppressing material fact before a court of law to gain

advantage, the said order cannot be allowed to stand."

12. Similar view was expressed by the Hon'ble the Supreme Court

in Amar Singh v. Union of India and others, reported as (2011) 7 SCC

69, Kishore Samrite v. State of Uttar Pradesh and others, reported as

(2013) 2 SCC 398, Zarina Siddiqui v. A. Ramalingam alias R.

Amarnathan, reported as (2015) 1 SCC 705, High Court of Punjab &

Haryana in M/s Manu Sharma and Company v. State of Haryana and

others, reported as 2017(1) RCR (Civil) 608 and by High Court of Jammu

& Kashmir in Mani Ram v. Janak Singh & Ors, reported as 2019 (2) JKJ

565.

WP.ST 76 of 2020

13. In a recent judgment in ABCD v. Union of India & Ors.,

reported as (2020) 2 SCC 52, the Hon'ble the Supreme Court in a matter

where material facts had been concealed, while issuing notice to the

petitioner therein, exercising its suo-motu contempt power,observed as

under:-

"15. Making a false statement on oath is an

offence punishable under Section 181 of the IPC while

furnishing false information with intent to cause public

servant to use his lawful power to the injury of another

person is punishable under Section 182 of the IPC.

These offences by virtue of Section 195(1)(a)(i) of the

Code can be taken cognizance of by any court only upon

a proper complaint in writing as stated in said Section.

In respect of matters coming under Section 195(1)(b)(i)

of the Code, in Pushpadevi M. Jatia v. M.L. Wadhawan

etc., (1987) 3 SCC 367 prosecution was directed to be

launched after prima faciesatisfaction was recorded by

this Court.

16. It has also been laid down by this Court in

Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC

421 that a person who makes an attempt to deceive the

court, interferes with the administration of justice and

can be held guilty of contempt of court. In that case a

husband who had filed a fabricated document to oppose

the prayer of his wife seeking transfer of matrimonial

proceedings was found guilty of contempt of court and

WP.ST 76 of 2020

sentenced to two weeks imprisonment. It was observed

as under:-

"1. The stream of administration of

justice has to remain unpolluted so that purity of

court's atmosphere may give vitality to all the

organs of the State. Polluters of judicial

firmament are, therefore, required to be well taken

care of to maintain the sublimity of court's

environment; so also to enable it to administer

justice fairly and to the satisfaction of all

concerned.

2. Anyone who takes recourse to fraud,

deflects the course of judicial proceedings; or if

anything is done with oblique motive, the same

interferes with the administration of justice. Such

persons are required to be properly dealt with, not

only to punish them for the wrong done, but also

to deter others from indulging in similar acts

which shake the faith of people in the system of

administration of justice.

14. The legal position thus is that if the

publication be with intent to deceive the court or

one made with an intention to defraud, the same

would be contempt, as it would interfere with

administration of justice. It would, in any case,

tend to interfere with the same. This would

WP.ST 76 of 2020

definitely be so if a fabricated document is filed

with the aforesaid mens rea. In the case at hand

the fabricated document was apparently to deceive

the court; the intention to defraud is writ large.

Anil Kumar is, therefore, guilty of contempt."

In K.D. Sharma v. Steel Authority of India Limited and

others, reported as (2008) 12 SCC 481 it was observed:-

"39. If the primary object as highlighted in Kensington

Income Tax Commrs., (1917) 1 KB 486 : 86 LJKB 257 : 116

LT 136 (CA) is kept in mind, an applicant 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 not an advocacy. It is a jugglery, manipulation,

manoeuvring or misrepresentation, which has no place in

equitable and prerogative jurisdiction. If the applicant does not

disclose all the material facts fairly and truly but states them in

a distorted manner and misleads the court, the court has

inherent power in order to protect itself and to prevent an abuse

of its process to discharge the rule nisi and refuse to proceed

further with the examination of the case on merits. If the court

does not reject the petition on that ground, the court would be

failing in its duty. In fact, such an applicant requires to be dealt

with for contempt of court for abusing the process of the

court."

'In Dhananjay Sharma v. State of Haryana and others, (1995) 3

SCC 757 filing of a false affidavit was the basis for initiation

WP.ST 76 of 2020

of action in contempt jurisdiction and the concerned persons

were punished."

14. It was held in the judgments referred to above that one of the

two cherished basic values of the Indian society for centuries is "satya"

(truth) and the same has been put under the carpet by the petitioner. Truth

constituted an integral part of the justice delivery system in the pre

Independence era, however, post-Independence period has seen drastic

changes in our value system. The materialism has overshadowed the old

ethos and the quest for personal gain has become so intense that those

involved in litigation do not hesitate to take shelter of falsehood,

misrepresentation and suppression of facts in the Court proceedings. In the

last 40 years, the values have gone down and now litigant can go to any

extent to mislead the Court. They have no respect for the truth. The

principle has been evolved to meet the challenges posed by this new breed

of litigants. Now it is well settled that 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. Suppression of material

facts from the Court of law is actually playing fraud with the Court. The

maxim supressio veri, expressio falsi, i.e. suppression of the truth is

equivalent to the expression of falsehood, gets attracted. It is nothing but

degradation of moral values in the society, may be because of our education

system. Now we are more happy to hear anything except truth; read

anything except truth; speak anything except truth and believe anything

except truth. Someone rightly said that `Lies are very sweet, while truth is

bitter, that's why most people prefer telling lies.'

WP.ST 76 of 2020

15. Now coming to the facts of the present case the petitioner

herein had initially filed writ petition in this Court bearing WPA No. 5935

W of 2020. The number was assigned by the department concerned on July

09, 2020. The following reliefs were prayed for:-

(a) A writ in the nature of Mandamus/certiorari to

quash/set aside/rescind the Notification being Memo

No.DME/Spl. Corresp/2020/185 dated 06/07/2020 as issued by

the authorities concerned and the relevant paragraph 3 of the

notification being Memo No.HFW-23099/66/2020/M/905

dated 08/07/2020 as issued by the DME, Dept. of Health &

Family Welfare (P-7 collectively).

(b) Direction upon the respondents not to cancel the

admission in First round counseling of the petitioners who have

already admitted as per First round counseling and also

direction to give incentive marks to the tune of 30% to the

petitioners in NEET PG West Bengal State Counselling 2nd

Round or else round by counting their service at Remote and/or

Difficult Area like Paschimanachal Unnyan Parshad area for 3

years and to correct the Final list in second/next round of

counseling accordingly after giving the incentive marks to the

petitioners to appear in online counseling until the result has

been published and allowed them to retain their first round

admitted seats.

(c) An order directing the respondents to produce all

the records of this case so that conscionable justice may be

rendered to the petitioner.

WP.ST 76 of 2020

(d) A Rule Nisi in terms of prayer (a), (b) & (c)

above.

(e) An interim order to give provisional incentive of

30% incentive marks to the petitioner to give effect of Memo

No. HFW-23099/29/2019/373 dated 26.02.2020 and not to

allow to admit any one to their seats where they have admitted

already and also to keep 9 degree seat of MD/MS vacant until

the present Writ Petition is disposed of.

(f) To allow to move this petition jointly as the cause

of action remain same and against the same orders dated

06/07/2020 and 08/07/2020.

(g) To allow this petition to move through

video/online procedure as allowed/conducted by Hon'ble High

Court.

(h) Such order or further order/orders and/or

direction/directions as may be deemed fit and necessary in the

interest so of justice.

16. When the petitioner was not able to get any interim relief from

this Court pertaining to his admission to the MD course, he filed an Original

Application bearing O.A. No.243 of 2020 before the Tribunal. It was filed

on August 24, 2020.

17. A perusal of the prayers made by the petitioner in the Original

Application filed before the Tribunal shows that the issue sought to be

raised was pertaining to the admission to the MD course in Radiology at

Command Hospital, E.C., Kolkata. By no stretch of imagination the issue

WP.ST 76 of 2020

can be said to be a service dispute for which jurisdiction of the Tribunal

could be invoked. Another fact which is important is that while filing the

aforesaid Original Application before the Tribunal, the petitioner

conspicuously concealed the material fact that he had already filed a writ

petition in this Court bearing WPA No. 5935 W of 2020 praying for the

same reliefs which was still pending.

18. The Tribunal considered the application filed by the petitioner

and without application of mind to the issues raised especially pertaining to

its jurisdiction to entertain the same, expressed sketchy opinion on merits of

the controversy. While dismissing the Original Application recording to

suppression of material facts by the petitioner, cost of 5,100/- was

imposed.

19. As far as the argument of the learned Counsel for the petitioner

regarding observation by the Tribunal on the merits of the controversy is

concerned, we find merit therein. Once the Tribunal did not have the

jurisdiction or was not entertaining the Original Application on account of

suppression of material facts by the petitioner, no observation on merits of

the controversy was required.

20. As far as the conduct of the petitioner is concerned, it is not in

dispute that the petitioner had filed writ petition in this Court bearing WPA

No.5935W of 2020 on July 09, 2020. While the same was still pending the

petitioner filed Original Application bearing O.A. No.243 of 2020 before

the Tribunal praying for the same reliefs. In the Original Application filed

before the Tribunal the factum of filing and pendency of the writ petition in

this Court claiming same reliefs, was not disclosed. In fact, the conduct of

WP.ST 76 of 2020

the petitioner who is a doctor by profession clearly establishes that it was a

case of 'forum hunting' and a clear effort to mislead the Court to pass order

in his favour. Not only this, in CAN 1 of 2020 filed by the petitioner in the

present writ petition the reason assigned by the petitioner to file Original

Application before the Tribunal was that the writ petition filed before this

Court had not been numbered. Though, that cannot be accepted as a good

reason for filing application before the Tribunal, which did not have

jurisdiction to entertain the same. In any case, it is the undisputed fact that

the petitioner had not disclosed the factum of filing of writ petition in this

Court and the pendency thereof, for claiming the same relief. In fact, the

petitioner was trying to be over smart at every stage. After the dismissal of

the Original Application vide order dated August 24, 2020 he filed CAN 2

of 2020 before this Court, trying to explain that how suppression of fact had

taken place. Besides, reiterating what was mentioned in CAN 1 of 2020 he

added that while filing a joint petition in the name of Dr. Sk. Safikul Hasan,

the name of the petitioner was inserted in the writ petition at serial No.3.

The same cannot be considered to be an explanation which is worth

acceptance. Once the petitioner had signed the power of attorney for filing

the writ petition in this Court he cannot now turn around and plead that he

is not in knowledge thereof. He had filed application for withdrawal of the

writ petition.

21. The fact stated by the petitioner that the writ petition filed by

him was not numbered and listed in Court, hence, he was compelled to file

Original Application before the Tribunal is totally misconceived for the

reason that the writ petition was listed in Court on July 22, 2020 and was

directed to be heard along with other petitions pending in this Court raising

WP.ST 76 of 2020

similar issues, on July 24, 2020. Whereas the Original Application was filed

before the Tribunal on August 24, 2020.

22. In view of our aforesaid discussions and also considering the

enunciation of law with reference to the conduct of the petitioner whereby

he had not only concealed material facts but had also tried to overreach the

Court, we dispose of the present writ petition while setting aside the

observation made by the Tribunal on merits of controversy but deem it

appropriate to increase the cost imposed on him from 5,100/- to 51,000/-.

The amount will be deposited by the petitioner in the Hospital where he is

presently working. It shall be used for treatment of the poor patients at the

discretion of the Principal, Midnapore Medical College & Hospital,

Paschim Medinipur. The amount be deposited by the petitioner within the

period of four weeks from the date of receipt of copy of the order. In case of

the failure, the Principal of the College shall be entitled to recover the same

from the salary payable to the petitioner.

(Rajesh Bindal) Judge

(Aniruddha Roy) Judge

Kolkata 24.03.2021

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PA(SG & SM)