Baljit Singh Dahiya vs B.S.E.S.Rajdhani Power Ltd. & ...
2014 Latest Caselaw 5950 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C) 672/2014
s
                                           Decided on     : 19.11.2014

IN THE MATTER OF:
BALJIT SINGH DAHIYA                               ..... Petitioner
                        Through: Mr. Vimal Wadhawan, Advocate with
                        petitioner in person

                        versus

B.S.E.S.RAJDHANI POWER LTD. & ANR.              ..... Respondents

Through: Mr. S.N.Choudhri, Ms.Shruti Choudhri & Mr.Varun Rajpal, Advocates for R-1 Ms.Meenakshi Midha and Mr.Siddhartha Nagpal, Advocates for R-2

CORAM HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J.(Oral)

1. The petitioner has filed the present petition praying inter alia for

issuance of directions to the respondent No.1/BSES RPL to fix his

salary on the basic pay, equivalent to one Mr.D.K.Sharma, w.e.f.

1.1.1994, with all the consequential benefits.

2. A counter affidavit was filed by the respondent No.1/BSES RPL

wherein, it was averred that the present petition is a gross abuse of

the process of law inasmuch as the petitioner who had availed of

SVRS on 31.12.2003, has concealed material facts from the court.

Learned counsel for the respondent No.1/BSES RPL had stated that

earlier hereto, the petitioner had filed a writ petition, registered as

WP(C) No.934/2013, seeking time-bound promotion to the scale of

Executive Engineer w.e.f. 7.10.1992 and the scale of Superintending

Engineer w.e.f. 7.10.2000. Vide judgment dated 18.2.2013, the

aforesaid petition was dismissed by the learned Single Judge on the

ground of delay and laches. Aggrieved by the said dismissal order,

the petitioner had filed an intra-court appeal, registered as LPA

No.326/2013. The said appeal was also dismissed by the Division

Bench along with other connected appeals by a common judgment

and order dated 6.5.2014, reported as 210(2014) DLT 470(DB)

and holding inter alia that the writ petition filed by the petitioner and

other similarly placed employees suffered from gross and unexplained

delay and laches of more than twelve years and that apart, the

petitioner's claim for time bound promotion, was not maintainable as

he had taken voluntary retirement in the year 2003, which was

without any protest and had resulted in cessation of the jural

relationship. Further, the Division Bench observed that while filing

the writ petition, the petitioner was guilty of deliberately concealing

the most important fact of his having taken voluntary retirement. As

a result, his appeal was dismissed as an abuse of the process of law,

with costs quantified at `25,000/-.

3. It was urged by learned counsel for the respondent No.1/BSES

RPL that drawing an analogy from Order II Rule 2 CPC, the petitioner

had an opportunity to ask for the relief as prayed for in the present

petition with regard to the purported anomaly in his salary when he

had filed the earlier petition and having failed to do so, or reserve his

right to file a separate petition for additional relief arising from the

same cause of action, the present petition ought to be dismissed on

the principles of constructive res judicata.

4. Learned counsel for the petitioner had stated that aggrieved by

the decision of the Division Bench taken on 6.5.2014, the petitioner

had preferred an appeal before the Supreme Court but the same had

yet to be listed for admission.

5. As it transpired that the common thread in all the aforesaid

litigations initiated by the petitioner and the present petition is

Mr.Vimal Wadhawan, Advocate, he was asked to explain as to why

had the petitioner filed a separate petition for relief arising out of his

service with the very same employer,. i.e., respondent No.1/BSES

RPL, when he had already approached the court in the earlier

proceedings asking for reliefs arising in the course of his employment,

with BSES RPL and particularly when he had opted for and was

granted voluntary retirement as long back as in the year 2003, and

he had elected not to litigate all this while.

6. Learned counsel for the petitioner had offered a lame excuse to

the effect that the cause of action in the present case is different and

that the petitioner is well entitled to approach the court for seeking

relief against the respondents, by filing separate petitions based on

different sets of causes of action arising out of his tenure of

employment with the same employer. He however did not dispute

the fact that the petitioner did not refer to the earlier writ petition

filed by him in this Court, either at the time of filing the present

petition on 27.1.2014, or even after the said petition was permitted to

be amended, vide order dated 12.3.2014. Pertinently, by March

2014, when the petitioner had filed an application seeking

amendment to the writ petition, the appeal preferred by him against

the order dated 15.2.2013 passed by the learned Single Judge in

W.P.(C) No.934/2013, was pending consideration before the Division

Bench.

7. In view of the petitioner's aforesaid conduct amounting to

concealment of material facts, it was deemed appropriate to direct

him to file an affidavit explaining his stand. The petitioner was also

directed to explain the delay in approaching the court for the relief for

fixation of his salary for the year 1994 and onwards, which is after the

passage of over two decades from the date the cause of action had

arisen in his favour and after over a decade of his opting for the

SVRS.

8. Pursuant to the aforesaid order, an affidavit has been filed by

the petitioner, under index dated 12.11.2014 wherein, it has been

averred that against the order dated 15.2.2013 passed in WP(C)

No.934/2013 filed by him for grant of time bound promotion scale,

the petitioner had filed an appeal which was dismissed by the Division

Bench on 6.5.2014, holding inter alia that once a person retires under

SVRS, he is not entitled to claim his past service benefits. It is

averred that aggrieved by the said decision, the petitioner had filed an

appeal before the Supreme Court that was taken up for hearing on

13.10.2014. On the said date, the petitioner's counsel had sought

leave to withdraw the said appeal, which was accordingly dismissed

as withdrawn. It is now stated that after losing the legal battle on the

issue of retired officers' rights to claim their past service benefits after

opting for retirement under SVRS, the petitioner may be permitted to

withdraw the present petition unconditionally.

9. Before dwelling any further on the facts of the case and

proceeding to examine whether the petitioner had discharged his

obligation as a litigant when approaching this Court for redressal of

his grievance as a consequence of his service with the respondent

No.1/BSES RPL, it is relevant to consider the principles that would

apply to a case, where the allegation is that the petitioner is guilty of

suppression of material facts and has not approached the Court with

clean hands, thereby abusing the process of the Court.

10. The first principle is that a party, who approaches the Court

with unclean hands, is liable to be non-suited on account of failure to

make candid disclosure of the relevant and material facts which itself

invite dismissal of the present at the threshold without considering

the merits of the claim. If a petitioner suppresses material facts or

does not reveal all the facts before the Court that are necessary for

deciding the lis, it would amount to an abuse of the process of the

Court. It is the obligation of a litigant to honestly disclose the true and

correct facts to the Court and failure to come clean would amount to

suppression and concealment of material facts. On the aspect of "full

and true disclosure of facts", there are a number of judicial

pronouncements, including R. vs. Kensington Income Tax

Commissioner reported as (1917) 1 KB 486, Tilokchand Motichand

vs. H.B. Munshi reported as (1969) 1 SCC 110, Chandra Shashi vs.

Anil Kumar Verma reported as (1995) 1 SCC 421, Prestige Lights

Ltd. vs. State Bank of India reported as (2007) 8 SCC 449,

Abhyudya Sanstha vs. Union of India reported as (2011) 6 SCC 145,

State of M.P. vs. Narmada Bachao Andolan reported as (2011) 7

SCC 639, Kalyaneshwari vs. Union of India reported as (2011) 3

SCC 287, A. Shanmugam vs. Ariya Kshatriya Rajakula Vamsathu

Madalaya Nandhavana Paripalanai Sangam reported as (2012) 6

SCC 430.

11. In the case of K.D. Sharma vs. SAIL reported as (2008) 12

SCC 481, the Supreme Court had observed that the jurisdiction of the

Supreme Court under Article 32 and of the High Court under Article

226 of the Constitution of India is extraordinary, equitable and

discretionary. It is, therefore, of utmost necessity that the petitioner

approaching the writ court must come with clean hands, put forward

all the facts before the Court without concealing or suppressing

anything and seek an appropriate relief. If there is no candid

disclosure of relevant and material facts or the petitioner is guilty of

misleading the Court, the petition may be dismissed at the threshold

without considering the merits of the claim.

12. In the case of Kishore Samrite vs. State of UP and Ors. reported

as (2013) 2 SCC 398, while examining a case where allegations

were levelled against the petitioners therein that they were guilty of

suppression of material facts and having approached the Court with

unclean hands, had abused the process of Court, the Supreme Court

had taken pains to cull out the principles that should guide the courts

while examining whether a litigant has discharged his obligations

when approaching the Court for redressal of his grievance. Some of

the broad principles laid down are as below:-

"32.1. 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.

32.2. 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.

32.3. The obligation to approach the court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court.

32.4. 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 overshadowed the old ethos of litigative values for small gains.

32.5. 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.

32.6. 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.

32.7. 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.

32.8. The court, especially the Supreme Court, has to maintain the 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."

13. Thus, it is clear that when a party approaches the High Court

and seeks to invoke its jurisdiction under Article 226 of the

Constitution of India, it must place on record all the relevant facts

without any reservation. In exercising its discretionary powers and

extraordinary jurisdiction under Article 226 of the Constitution of

India, the High Court not only acts as a court of law, but also as a

court of equity. Therefore, in case there is a deliberate concealment

or suppression of material facts on behalf of the petitioner or it

transpires that the facts have been so twisted and placed before the

Court, so as to amount to concealment, the writ court is entitled to

refuse to entertain the petition and dismiss it without entering into

the merits of the matter.

14. Coming back to the facts of the instant case, the explanation

offered by the petitioner for explaining the failure on his part to refer

to the previous litigations initiated by him against the respondents is

found to be quite unsatisfactory. By the time the present petition was

filed on 17.1.2014, the petitioner was well aware of the fate of his

earlier petition. Subsequently, on 10.3.2014, the petitioner had filed

an application for seeking amendments of the present petition and by

then, he had taken steps to file an appeal against the rejection order

passed by the learned Single Judge in W.P.(C) 934/2013. However,

he chose not to apprise the court about the filing of the said appeal or

that it was pending adjudication before the Division Bench.

15. Pertinently, vide judgment dated 6.5.2014, the Division Bench

had dismissed the petitioner's appeal and the present case was listed

before this court for further proceeding one week thereafter, on

13.5.2014, but even on the said date, the petitioner did not reveal to

the court the fact that the aforesaid appeal had been dismissed with

scathing comments against him. Only when this matter was taken up

on 10.9.2014, that at the instance of the learned counsel for the

respondent No.1/BSES RPL the history of the earlier litigation between

the parties came to be revealed to the court for the first time and it

was in those circumstances that the petitioner was called upon to

explain his conduct.

16. When the matter was taken up for hearing on 18.11.2014, the

petitioner had appeared in person and said that he had acted on the

legal advise of his counsel. But as an adjournment was sought by

him on the ground that his counsel was unavailable, he was duly

accommodated and the matter was adjourned for today.

17. Today, both the petitioner and Mr. Wadhawan, Advocate are

present. Learned counsel concedes that it was on account of an error

of judgment on his part that at the time of filing the first petition he

did not advise his client to seek all the reliefs that were available in

the course of his employment with the respondent No.1/BSES RPL. It

is also not denied that the present petition does not mention the

earlier round of litigations initiated by the petitioner for claiming grant

of time bound promotion scale from the respondent, when the said

facts ought to have been brought to the notice of the court at the

earliest, or at least by 13.5.2014, the date when the matter was

taken up and adjourned to 10.9.2014 as by that time, the petitioner

had suffered adverse orders in his appeal.

18. On a query posed to learned counsel for the petitioner as to

whether the costs of `25,000/- imposed on the petitioner by the

Division Bench vide judgment dated 6.5.2014, have been paid to the

other side, he states on instructions that the same have not been paid

and adds that it is for the respondents to recover the same by

following the due process of law.

19. While deprecating the conduct of the petitioner as noted above

and the irresponsible manner in which the learned counsel has

sought to discharge his duty, towards both, his client and the court,

the petitioner's request for unconditional withdrawal of the writ

petition is rejected. Instead, on account of the deliberate attempt on

the part of the petitioner of withholding material information from the

court and failure to come clean, it is deemed appropriate to dismiss

the present petition as a gross abuse of the process of law with costs

of `25,000/-. The costs shall be paid to the respondents through

counsel in equal share, within three weeks. It is further directed that

if the petitioner files any petition in this court in future against the

respondents, the same shall be entertained by the Registry only after

he is able to show proof of deposit of costs imposed in the present

proceedings.

                                                     (HIMA KOHLI)
NOVEMBER           19, 2014                             JUDGE
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