Calcutta High Court
West Bengal Transport Corporation ... vs Suvra Kumar Dey And Ors on 1 October, 2024
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
RVWO/15/2024
With
WPO 37 of 2017
IA NO: GA/1/2024
WEST BENGAL TRANSPORT CORPORATION LIMITED AND ANR
VS.
SUVRA KUMAR DEY AND ORS.
BEFORE:
THE HON'BLE JUSTICE RAI CHATTOPADHYAY
DATE : 1st October, 2024.
Appearance:
Mr. Suvra Kumar Dey (in person)
Mr. Mainak Ganguly, Adv.
Mr. Niladri Bhattacharjee, Adv.
Ms. Deblina Chattaraj, Adv.
.... For Appellant/Contemnor
The Court : The instant is a review application filed by the applicants
namely, The West Bengal Transport Corporation Limited and its Managing
Director respectively, seeking review of this Court's judgment and order dated
January 16, 2024 in Writ Petition No. 37 of 2017 (Suvra Kumar Dey vs. State
of West Bengal and Ors.).
The grounds for review has been mentioned, inter alia, to be intentional
suppression of material facts before the Court by the present opposite party
(that is, the writ petitioner), misrepresentation and false submissions of him,
manipulative and baseless arguments on the basis of irrelevant documents,
2
which conjointly have resulted into playing fraud by the said writ petitioner in
presenting the case before the Court. It is stated that for the reasons as above
the judgment and order of this Court, as mentioned above is to be considered a
nullity and requires to be set aside.
The appellants herein are the respondents in the writ petition No. 37 of
2017, whereas the present opposite party is the petitioner over there. Mr.
Mainak Ganguly being assisted by Mr. Niladri Bhattacharjee and Ms. Deblina
Chattarajhave appeared for the applicant in the review petition. He has
elaborated as to how the present opposite party/writ petitioner has exercised
fraud upon the Court by misrepresenting and also suppressing the relevant
and necessary materials, from the scope of consideration of this Court. He says
that a notification dated May 17, 2006, inviting applications from the eligible
candidates for promotion was published by the applicant (hereinafter referred
to as No.915). Mr. Ganguly, would emphasise that the petitioner's contention
of having submitted an application in response to the said notification No.915
is only a false statement, manipulative and representing otherwise than the
actual facts, in order to misdirect the Court.
He would remind the Court regarding contention of the writ
petitioner/opposite party in the said writ petition that in spite of submission of
application in response to the notification No.915, he was not allowed to
participate in the selection process, for no reasonable cause. It was further
submission of him, that the said application of him, submitted pursuant to the
notification No.915 was lost from the custody of the present
applicants/respondents. Mr. Ganguly would not fail to indicate that the
opposite party/writ petitioner has not been able to show any trace of receipt of
copy of the said application of him, in the office of the present applicants.
Mr. Ganguly would submit that the petitioner's claim of having
submitted an application pursuant to the notification in order to take part in
the process of selection for promotion, is only false in view of his subsequent
letter and its contentions. He has mentioned about a letter of the petitioner
dated June 8, 2006 which the present opposite party/writ petitioner has said
to have written to the present applicant No.2/Managing Director, expressing
his grievance for not being considered for promotion. Mr. Ganguly would say
that the said letter of the opposite parity/writ petitioner was not expressing any
grievance for not being able to take part in the selection process but has been
written to challenge the promotional policy vide notification No.915.therefore
according to the applicants, the person who challenges the policy of the
employer could not have taken part in the said policy, by way of submitting an
application form, as claimed.
Furthermore, as per the applicants, there is no proof or record produced
by the writ petitioner, regarding receipt of that letter of the writ petitioner dated
June 8, 2006 in the office of the applicants. It has been mentioned that
purportedly the petitioner has suppressed from the very beginning regarding
the date of alleged receipt of the said letter of him, in the office of the
applicants on June 9, 2006. That, he has divulged the said fact only at a
belated stage on August 12, 2008, while submitting his another application
under the Right to Information Act. Thus, according to the applicants, the writ
petitioner's assertion regarding submission of any letter dated June 8, 2006,
on June 9, 2006, is an afterthought statement, motivated and designed to
misrepresent the Court. Thus fraud is said to have been committed upon the
Court.
Mr. Ganguly would further submit that it was never the intention of the
writ petitioner to appear and compete in the promotion process pursuant to the
notification No.915. He claims that the petitioner has consistently and
deliberately avoided the selection process in an attempt to accomplish his
objective by taking illegal and circumvention approaches. In this regard he
would refer to one letter of the writ petitioner addressed to the applicant no.2
dated October 15, 2008, in which the petitioner would seek for grant of career
advancement scheme benefits to him with retrospective effect and promotion in
terms of the other notification No.3015F dated March 13, 2001. It is submitted
that evidently the petitioner would not be interested to take part in the
selection process, which has in turn nullified his claim of having submitted any
application in response to the notification No.915, as claimed. It is indicated
that admittedly also in his said letter dated October 15, 2008 (in connection
with RTI reply given to him by the applicant corporation dated September 23,
2008), the writ petitioner had stated that the promotional process initiated by
Memo No. 915 is not in conformity with the Memo No.10620 dated December
19, 2000, which does not provide for any process to be initiated for promotion
requiring submission of application etc.
Mr. Ganguly would submit that all these admitted documents would
unfailingly suggest to the intention of the petitioner not to take part in the
selection process, in terms of notification No.915. that, in actuality, his
assertion that he filed an application in accordance with the aforementioned
notification No. 915 is merely false and misleading. Therefore, Mr. Ganguly has
submitted, that the writ petitioner has committed fraud upon the Court in this
manner.
It is also argued that, despite the fact that the petitioner did not take
part in the selection process for promotion, he has used this tactic to conceal
important material facts from the Court and contest the promotional policy.
Therefore, the writ petitioner was before the Court in the said writ petition with
unclean hands and could not have thereof claimed any equitable relief. Also,
that the prayer of the writ petitioner was vitiable in view of the practice of fraud
which is apparent on the face of the record and suppression of material fact by
him in the Court.
To buttress his submissions as above, Mr. Ganguly would refer further to
the first writ petition filed by the petitioner, being WPO 1788 of 2008, with his
prayer for consideration of his promotion in terms of notification No.10620
dated December 19, 2000, in terms of which, according to the petitioner, there
would not be any formality or procedure for separately applying for promotion.
Mr. Ganguly insists that the same may be considered as another eventuality to
expose petitioner's true intentions not to take part in the promotional process
which would automatically negate his claim that at a subsequent stage and as
to the notification No. 915, he had ever responded. On the contrary, he should
be considered not to have participated in the promotional process, according to
his own volition though mispresented about the same, before the Court.
Mr. Ganguly would submit with regard to the finding of the applicant
No.2/the then Managing Director, in its order dated June 22, 2011, to the
effect that the application of the petitioner was misplaced from the office
record, to be a bona fide mistake on the part of the then Managing Director of
the applicant No.1. He would stress upon the facts and circumstances as
enumerated above which is deducible from the petitioners conduct and
contention of his various documents. According to the applicants, the
documents by the petitioners from time to time elaborately expressed the
intention and conduct of the petitioner. That the same would be sufficient to
outweigh a bona fide erroneous stray statement made by the Managing
Director in the said order dated June 22, 2011, which is virtually based on no
evidence. Allegedly, the petitioner with ulterior motive has subjugated the said
error apparent on the face of the order dated June 22, 2011 and manipulatively
utilised the same to his advantages.
Lastly, Mr. Ganguly would say that the writ petitioner having never
occupied the promotional post and having not served therein at any point of
time would not be eligible at all for grant of any commensurate benefit.
Certain judgment has been relied on by Mr. Ganguly during his
arguments to rely on the respective propositions therein, as mentioned herein
below:-
i) (2010) 8 SCC 383: Meghmal & Ors. vs. G. Narasimha Reddy &Ors.
On the proposition that fraud unravels everything, fraud and
deception are synonymous.
ii) 2004 AIHC 534 (Kar): Bangalore Development Authority, by its
commissioner, Bangalore &Ors. vs. P. Anjanappa & Ors.
For the proposition that the Court has inherent power to recall an
order obtained by fraud; that, an 'error apparent' on the fact of the
record comes within the ambit of 'other sufficient cause' as
contemplated in 0rder 47 Rule 1 of the Civil Procedure Code, to set
aside an order obtained by fraud.
iii) 2009 (2) CHN 860: Satyanarayan Pandey Vs. State of West Bengal
&Ors.
For the proposition that power of High Court to review its own
order is not derived from 0rder 47 Rule 1 of the Civil Procedure
Code; that the High Court is not bound by the parameters laid
down in the said Code but exercises its own inherent power with
an object is to prevent miscarriage of justice.
iv) (2000) 1 SCC 666: M.M Thomas vs. State of Kerala &Ors.
For the proposition that the High Court, as a Court of records, as
envisaged in Article 215 of the Constitution of India, has inherent
power to correct its records; that it is duty bound to keep all its
records correctly and in accordance with law; that if any error
apparent is noticed by the High Court in respect of any order
passed by it, the High Court has not only the power, but a duty to
correct it; that the High Court's power in that regard is plenary.
v) (2007) 11 SCC 488: Union Territory, Chandigarh Vs. Brijmohan
Kaur.
Here the Court has propounded that the general principle is when
an incumbent does not discharge any duty in the promotional
post, he will not be entitled to claim the pay corresponding to the
promotional post and/or arrears thereof.
vi) (1988) 4 SCC 534: Bharat Singh &Ors. vs. State of Haryana &Ors.
For the proposition that the party raising a point in a writ petition
must specifically plead such facts and annex corroborative
documents in support thereof. Difference between a pliant and a
writ petition in this regard is laid down by the Court, in this case.
The opposite party/writ petitioner has appeared personally as before and
contested the review petition filed by the corporation. As against the
contentions of the applicant regarding commission of fraud by the writ
petitioner on every stage, as stated above, there has been a vehement objection
by the writ petitioner to the same. The writ petitioner has strongly relied on the
order of the Management Director dated June 22, 2011, wherein the Managing
Director has recorded about the writ petitioner having submitted an application
pursuant to the promotion notification No.915 and the department having lost
the same, resulting into non-consideration of the petitioner's candidature for
promotion. That the same has been bona fide erroneous recoding of fact - as
stated by the applicants, is strongly denied by the writ petitioner. Per contra he
has submitted that the finding in the said order dated June 22, 2011 speaks
enough as regards the actual state of affairs, which the applicants now have
tried to distort by filing the instant review petition. That is only for the purpose
to victimise the writ petitioner, he has stated.
The writ petitioner has further submitted that the subject matter in his
earlier Writ Petition No.1788 of 2008 has no relevance or bearing as to the
present writ petition No. WPO 37 of 2017. He says that in the writ petition of
2008 he agitated non-consideration by the authorities regarding his promotion,
in terms of Memo No.10620 dated December 19, 2000. He admitted that in the
same, he sought for promotion in terms of said Memo dated December 19,
2000. He would say that his prayer in the same was a distinct and separate
one, than his grievance as expressed in the present case, regarding inaction of
the applicant to grant him actual cash benefits for the period for which he has
been granted notional promotional benefit, vide this Court's earlier order.
The writ petitioner would say that the statement made by him in different
letters as relied on by the applicant herein has been written contextually from
time to time in connection with seeking information from the corporation or
expressing his grievance etc. that, the same cannot be considered as
suppression of any material fact by him or manipulation or fabrication with
respect to the factual aspect of the matter.
He would say further that the present review petition is an appeal in
disguise, to re-agitate the issues in dispute, which have already been decided
by the Court after hearing exhaustively the parties before it. The unchallenged
decision of the Court as above, has actually terminated possibility of any
challenge what so ever, not only with regard to the order of grant of cash
benefit to the petitioner but also regarding grant of notional benefit of
promotion to the petitioner. He would say that the orders of the Court passed
earlier to that effect having already been final, cannot be altered or even varied
or modified in the guise of a review petition.
The writ petitioner would contend further that the applicants throughout
the course of several litigations between the parties have never come up with
the allegations of any fraudulent discourse having been undertaken by the writ
petitioner. Therefore, that he has not been allowed the opportunity to contest
such frivolous ground of the applicants, at any point of time earlier. The
allegation of fraud having been committed by the writ petitioner, being taken
the first time before this Court in the review jurisdiction would be barred by
constructive res judicata for the reasons as stated above, the writ petitioner has
said.
On the contrary the writ petitioner would make allegations of fraud being
committed by the corporation in so far as, in spite of the previous finding of the
Managing Director regarding acceptance of application of the writ petition in
office the corporation/applicants, the corporation has subsequently come up
with the different case of the petitioner not at all having submitted any such
application. Therefore, according to the writ petitioner, there has been
suppression of office record and the actual facts by the applicants before the
Court.
He would further say that the order of the Court and subsequent order of
the concerned department granting him notional promotion has become final,
without being challenged any further. The same cannot be reopened as if in an
appeal, in the guise of this review application filed by the applicants, the writ
petitioner has strongly contended. The petitioner as stated further that in the
writ petition (at page 129 thereof) the applicants have admitted on oath,
regarding submission of application by the writ petitioner to take part in the
selection process for promotion, which, subsequently, in this review petition,
they have denied. Thus, by shifting stands allegedly the applicants have
conducted themselves fraudulently.
He would further say that the Court in its judgment dated January 16,
2024, has considered and accepted petitioners plea that he has, during the
relevant period of time, worked in the posts which may be considered as posts
belonging to the promotional cadre. According to the petitioner there is no new
and cogent material have been produced by the applicant to deny that fact.
Also, that there would not be any scope for the applicants in the review petition
to challenge findings of the Court in its judgement dated October 9, 2013and
January 16, 2024.Therefore, by no means of interpretation petitioner's actual
cash benefit for the disputed period may be turned down.
The writ petitioner would submit that the present review petition no.
RVWO 15 of 2024 is not maintainable and would seek dismissal of the same.
The applicant/review petitioner is principally challenging the veracity,
credibility and legality of the proceedings brought in by the writ petitioner
before this Court. It claims that the writ petitioner's action is infused with the
injurious, pernicious and destructive element of fraud, which has the potential
and force to invalidate and vitiate the entire proceedings, in terms of the law of
the land. In support, the applicant has relied on the judgment of the Supreme
Court, reported in (2010) 8 SCC 383 (Meghmala & Ors. vs. G. Narasimha
Reddy &ors.), in which the Court has held that the settled proposition of law
is that where an applicant gets an order by making misrepresentation or
playing fraud, such order is unsustainable in the eye of law. The Court quotes
from a decision of the Queen's Bench reported in (1956) 1 QB 702 [Lazarus
Estates Limited vs. Beasley], that "No judgment of a court, no order of a
minister, can be allowed to stand if it has been obtained by fraud. Fraud
unravels everything". The Court has also held there that "Fraud is an intrinsic,
collateral act, and fraud of an egregious nature would vitiate the most solemn
proceedings of the courts of justice".
The applicants would further argue that a Court of Equity, would
not always be bound by the parameters laid down in the Civil Procedure Code,
in case it has to travel against the time and re-enter and review its own order,
delivered earlier. By referring to the decision of this Court, reported in 2009 (2)
CHN 860 (Satyanarayan Pandey vs. State of West Bengal &Ors.), it has
been stated that the power of the High Court to review its own order is not
derived from Order 47 Rule 1 of the Civil Procedure Code and not bound by the
parameters laid down in the Code. But the High Court exercises its own
inherent power, with an object to prevent miscarriage of justice. More so, an
order obtained by exercise of fraud is an 'error apparent' on the face of the
record and also comes within the ambit of 'other sufficient cause', as
contemplated in Order 47 Rule 1 of the Civil Procedure Code.
To elaborate this point, Mr. Ganguly for the applicant, has further
referred to Article 215 of the Constitution of India and the judgment of the
Supreme Court reported in (2000) 1 SCC 666 (M. M. Thomas vs. State of
Kerala & Anr.), to say that the High Court as the Court of Records has the
duty and power to correct the records and keep and maintain the records
correctly and in accordance with law. Hence, the High Court has plenary power
to rectify and make corrected any error apparent on the face of the record.
So far as the applicant's stand that fraud unravels everything, is
concerned, the same is a proposition classically established and can never be
disputed. The law of the land as well as the Courts thereof have time and again
propounded, relied on and acclaimed the said principle, to weed out iniquitous
seizing of Court's remedy by an unscrupulous petitioner, to collar him to take
shelter under the veil of an order of the Court.
However, the flip side of the coin is the other principle similarly
well established, that fraud is to be pleaded and proved. To prove fraud, it
must be pleaded that representation made was false to the knowledge of the
party making such representation or that the party could have no reasonable
belief that it was true. The level of proof required in such cases is extremely
high. An ambiguous statement cannot per se make the representator guilty of
fraud. To prove a case of fraud, it must be proved that the representation made
was false to the knowledge of the party making such representation. The
dictum of the Supreme Court in V.S. Vishwavidyalay vs. Dr. Raj Kishore
Tripathi [AIR 1977 SC 615], is that "fraud to be specifically pleaded" - it is
not sufficient to plead about commission of fraud in general terms, without
giving particulars.
Therefore, the particulars of the fraud must be pleaded and
without pleading as such, the question of fraud will not arise at all. To
understand as to how the law stands, we may also refer to the words of Lord
Atkin in A.L.N. Narayanan Chettyar vs. Official Assignee [High Court at
Rangoon [AIR 1941 PC 93], that fraud like any other charge of a criminal
offence whether made in civil or criminal proceedings, must be established
beyond reasonable doubt; however suspicious may be the circumstances,
however strange the coincidences, and however grave the doubts, suspicion
alone can never take the place of proof. There is no gainsaying that the charge
of fraud is a serious one which requires elaborated pleadings and evidence.
No doubt that the ground of fraud can be taken at any stage.
However, a case of fraud has to be pleaded with sufficient details and
particulars of fraud must be pleaded as is prescribed by Order VI Rule 4 of the
Code of Civil Procedure, the principle whereof applies to writ proceedings also.
Unless pleaded specifically, commission of fraud cannot be assumed or
speculated. The Court to rover over the pleadings to forage an element of fraud
is not what the law speaks about, as has been propounded by Lord Macdermott
in the case of Bank of India and Others vs. Jamsethji A.H. Chinoy & M/s
Chinoy & Company [AIR 1950 PC 90].
Some other verdicts of the Supreme Court may also be referred to,
for the benefit of discussion. In Raganayakamma vs. K.S.Prakash [(2008)
15 SCC 673], the Court has held a plea of fraud, general and vague in nature,
without any particulars thereof, would not call for Court's attention, to take
that into consideration. In Placido Francisco Pinto (D) by L.R.s vs. Jose
Fransisco Pinto [2021 SCC Online SC 842], the Court has held that pleading
not indicative of any instance of fraud or misrepresentation would be
inconsistent vis-à-vis the provisions under Order VI Rule 4 of the Civil
Procedure Code for which reason in such kind of a case the plea of fraud would
not be sustained. In C.S. Ramaswamy vs. V.K. Senthil [2022 SCC Online SC
1330], the Court has held that mere statement alleging commission of fraud or
using the word 'fraud' without elaborating that with sufficient precision and
specification as to how the fraud has been committed, may render the plaintiff
achieve which otherwise he may not be entitled to under the law, like in a case
of a suit barred by limitation. Therefore, the Court has emphasised firstly, that
commission of fraud has to be pleaded and secondly, that has to be pleaded
with sufficiently accurate and specific materials as to how the fraud has been
committed or played.
This is how fraud can vitiate a proceeding. It has been held time
and again by the Courts of law as to when a fraud can be considered to have
been established upon specific pleadings and sufficient proof thereof. Now,
coming back to the facts of the present case, the writ petition connected with
the present review petition is the 3rd round of litigation between the parties.
Earlier, on two occasions the writ petitioner had moved this Court by filing WP
No. 1788 of 2008 and WP No. 866 of 2011. Those two matters and the present
writ petition has been decided on contest upon filing affidavits by the respective
parties. Curiously, this court has gone into the respective affidavits filed by the
parties in the said writ petitions. The plea of any fraud having been played by
the writ petitioner, is evidently unavailable and in absentia, so far as pleadings
of the review petitioner/respondent, in the said writ petitions, are concerned. It
is not that in the present review application the applicant has relied on any
further new material to bring on record its new knowledge, as to commission of
any fraud by the writ petitioner, which might not have been dealt with by the
Court in any of the earlier occasions. As discussed earlier, the review
petitioner has relied on the prayer of the writ petitioner in the earlier case, his
representations et cetera, which have already been made part of the record, in
the writ petitions including the one, in connection with which the present
review petition arises. Therefore, the Court finds that nothing on earth could
have prevented the review petitioner before to urge the point of fraud having
been played against it, by the said petitioner. However, any such pleading of
fraud was never brought on record, hence not pleaded at all, far less than any
fraud committed by the writ petitioner having been established through
pleadings and specific materials. All the materials, the review applicant now
relies on to plead fraud, were available to it at all the material point of time.
Therefore, the review applicant not having raised the point of fraud playing by
the writ petitioner at the very first instance, through pleadings supported by
specific materials, would not now be able to espouse the same, in accordance
with law.
Furthermore, in writ petition No. WP 866 of 2011, the Court
directed the review applicant to consider the question of grant of full cash
benefit of the petitioner independently. The same order having not been
challenged at any subsequent period of time should be deemed to have been
accepted by the review petitioner. Thereby the review petitioner reopening the
question of the petitioner having exercised fraud from the inception should not
be allowed at this stage of proceeding. Similarly, the Court's order allowing the
writ petitioner, the notional benefit of promotion for the specified period, has
also not been challenged, but given effect to. It is surprising that the applicants
have even questioned the same in this review petition, alleging the same to be
an outcome of fraudulent misrepresentation by the writ petitioner, before the
Court. The Court questions itself if the scope of review of its own order may be
stretched to that extent but only to get the obvious negative answer.
As discussed earlier the pleadings of the review applicants in its
respective affidavits-in-opposition are bereft of any mention about any fraud
being committed. At the stage of review of the order of this Court in the latest
writ petition, the review applicant has made an endeavor to frisk out such
elements of fraud from the comparative study of the documents relied on by
the parties in the case, that is, of course being not supported with any
pleadings as to the allegations of fraud. In view of the settled position of law as
discussed earlier, the Court is of the firm opinion that such endeavor of the
review applicants, is nothing but to reopen the entire issue which has already
been decided by the Court. The contention of the review applicants shall have
nothing to do with the error or omission on the face of the judgment and order
in question, which the Court might have effortlessly gone into, to make
necessary corrections thereof. Here the Court is invited to reassess the merits
of the case on a fresh ground of the fraud having been committed by the writ
petitioner by misrepresentation and suppression of material facts. The law as
settled and mentioned above would not permit the Court to travel back in the
timeline to the extent of reassessing. The applicants would seek exercise of
inherent power of this Court, to redress its grievance. As a Court of record,
such power of the High Court is endowed and protected under Article 215 of
the Constitution, for the purpose of ensuring justice. The test would be in case
the Court does not entertain the review application and alter/modify the order
under review, whether the same would result into any injustice or not. The
grounds pleaded by the review applicants, if not maintainable in the eye of law,
as it is in the present case, the applicants cannot be considered to have been
successful in clearing the threshold test and entering into the arena of review.
That is particularly in this case, when neither the review applicant has ever
pleaded the fraud nor could have established the same. Rather the present
review application is a willful choice of the review applicants which, if
entertained, may have the effect of frustrating this Court's previous order dated
January 16, 2024. The principles of law, as have been envisaged in the
judgments relied on by the review applicants, are sacrosanct. However,
application thereof, as to the factual background of this case, as elaborately
discussed above is unwarranted.
On the considerations as above this Court finds no merit in this
review petition and finds the same liable to be dismissed.
On the premises as above the review petition no. RVWO 15 of
2024 is dismissed.
Let the contempt petition being CC 22 of 2024 be listed for
further consideration after ensuing puja vacation.
(RAI CHATTOPADHYAY, J.)
Tudu/p.a
