Dtc vs Mahabir Prasad
2015 Latest Caselaw 779 Del

$~R-31
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                          W.P.(C) No. 64/2002
%                       Judgement reserved on: 15.01.2015
                        Judgement pronounced on: 29.01.2015
      DTC                                               ..... Petitioner
                           Through: Ms Arati Mahajan and Ms Aswathi,
                           Advocates.

                           versus

      MAHABIR PRASAD                          ..... Respondent
                  Through: Mr Aditya Singh, Advocate.

CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
JUDGMENT

1. It is a case where the unscrupulous litigant has by its intentional act of

suppression has not only succeeded in playing fraud upon the Tribunal, but

has also succeeded in obtaining an order in his favour from this court and

has also reaped the fruit of that fraud.

2. The relevant facts of the case are that the respondent was working as a

driver with the petitioner. On 19.11.1984, the respondent had committed the

misconduct alongwith co-accused Sh.Ishwar Singh, ASK while driving bus

no. DHR 3064. The charge sheet was issued to him on 28.12.1984. The

departmental enquiry was conducted in which he had fully participated.

Statement of witnesses recorded. Opportunity to cross-examine witnesses

was given. The opportunity to produce defence evidence was also given.

Meanwhile, the employees went on strike in the year 1988, hence action on

enquiry was stalled. The show-cause notice dated 11.06.1992 was also

given to him. Instead of filing reply to show-cause notice, workman sent

letter dated 17.06.1992, which was duly replied by petitioner vide letter

dated 29.06.1992 and respondent/workman was again asked to furnish his

reply to show-cause notice. Reminder dated 2.07.1992 and 04.07.1992 were

sent. Respondent/workman sent letter dated 14.07.1992, which was not

found satisfactory and vide order dated 16.09.1992, the service of workman

was terminated.

3. Since an industrial dispute was pending before the concerned official,

an application under Section 33(2)(b) of I.D. Act was moved by the

petitioner. One month wages were also sent to the respondent through

money order. The respondent/workman challenged the said application of

the petitioner under Section 32 (2)(b) and filed its reply to the said

application wherein he challenged his termination on several grounds.

4. On 25.11.1997, the preliminary issue was framed by the Tribunal

relating to the validity of the domestic enquiry. Vide order dated 17th

February, 2000, the Tribunal set aside the enquiry. Vide another order of

the same date, the approval petition under Section 32 (2) (b) of the I.D Act

was dismissed.

5. These are the orders which are under challenge before this court. The

respondent/workman has not filed any counter affidavit in the present writ

petition but relied on his writ petition having W.P.(C) No. 6844/2000.

6. The dates in this case are very important. Chronology of events show

that the respondent/ workman was dismissed from service vide order dated

16.09.1992. The petitioner filed the Approval petition under Section

33(2)(b) of the I.D. Act in case I.D No. 17/88 in the year 1996 which was

registered as OP 30/96.

7. It was dismissed by the Tribunal vide its order dated 17.02.2000.

Against this order the workman/respondent filed writ petition bearing

W.P.(C) No. 6488/2000. The petitioner filed the present writ petition in the

year 2002.

8. This writ petition remains pending before this court from 7th January,

2002 onward. In between the workman/respondent moved an application

under Section 17 B of the Industrial Disputes Act demanding full wages

during the pendency of the present writ petition.

9. On the application of workman, this court vide order dated 29th

September, 2004, directed the petitioner to deposit with the Registry the

wages due to the respondent/workman till 30th September, 2004 and the

operation of order dated 17th February, 2000 of Tribunal in OP No. 30/96

was stayed. It was also ordered that WP(C) No. 6844/2000 by which

workman/respondent had sought the implementation of the order of tribunal

dated 17.02.2000 in OP No. 30/96 be taken up with this writ petition. The

petitioner in compliance with direction of this court deposited the wages

with the Registrar. The respondent/workmen also moved an application

C.M. No. 3222/2005 for release of the said amount and vide order dated 16th

March, 2005, the deposited amount was ordered to be released to the

respondent/workman. Since, the amount was released to

workman/respondent unconditionally, the petitioner moved an application

CM No. 11680/2005 for direction to the respondent/workman to furnish

bank guarantee of the released amount. Despite matter being adjourned on

several occasions, respondent did not file any reply to the said application

and finally on closing his right to file reply, this court vide order dated 4th

December, 2007 directed the respondent/workman to furnish the bank

guarantee for an amount of Rs. 8,04,800/- with interest (the released

amount). The respondent/workman did not comply with the directions and

did not furnish any bank guarantee.

10. Vide order dated 6th May 2010, this court dismissed WP (C) No.

6844/2000 of the respondent/workman whereby he sought the

implementation of the order dated 17.02.2000 passed by the Tribunal in OP

No.30/96, in view of the stay of the said order in this petition, giving liberty

to respondent/workman to revive the said writ petition, in the eventuality of

dismissal of this writ petition.

11. The workman/respondent therefore by virtue of this application under

Section 17B of the I.D. Act has successfully claimed the back wages and

also got it released. Not only that, he refused to comply with direction of this

court and did not furnish the bank guarantee. He also intentionally

suppressed a very vital information from the knowledge of not only this

court but also of Tribunal.

12. During the course of arguments in the present writ petition, the

attention of this court has been drawn to the order of Division Bench in CM

No. 5183/93 in W.P.C No.3261/93 dated 19th January, 1996. This order

was passed in the writ petition filed by respondent/workman, challenging his

dismissal order dated 16.09.1992, approval of which was also sought under

Section 33 2(b) of Act by the petitioner before Industrial Tribunal in ID

17/88 which was registered as OP No. 30/96.

This order is reproduced as under:-

"We do not think that this case deserves any consideration as the petitioner who was in charge of the bus has taken away it unauthorisedly The contention is that the petitioner acted under the direction of the store keeper who has been also charged and who has been imposed minor penalty which the petitioner has been dismissed from service. We find that being driver of the bus it was his responsibility to see that no harm is done to the bus. The role of the petitioner is graver than that of the store keeper. We dismiss the writ petition in limine."

13. It is clear that vide this order, the Division Bench of this court had

upheld the dismissal order dated 16.09.1992 of the respondent/workman and

the challenge to the dismissal order by respondent/workman was dismissed.

This order was not challenged by workman and thus the order is final. I

have deduced this fact (that order was not challenged in higher court) from

the very fact that workman has no where contended this fact. Even in his

writ petition no. 6844/2000, he has made no mention of dismissal of his

WP(C) No. 3261/93 in which he challenged his termination order.

14. It is argued on behalf of the petitioner that this fact was within the

knowledge of the respondent/workman but he had intentionally concealed

this fact from the knowledge of the Industrial Tribunal. It is argued that

since the writ petition of the respondent/workman was dismissed in limine,

they were not aware of this order and it was the duty of the

respondent/workman to bring it to the notice of the Industrial Tribunal. It is

argued that the order of Industrial Tribunal, whereby it has declared

termination illegal is contrary to the order dated 16.09.1992 of Division

Bench i.e. the writ petition with WP.(C) No. 3261/93 whereby the Division

Bench has upheld the termination order dated 16.09.92. It is argued that the

order of Industrial Tribunal is thus a nullity. It is argued that the workman

has played fraud not only upon Industrial Tribunal but also upon this court.

It is argued that by concealing this order, he made this court pass orders

dated 29.09.2004 and 16.03.2005 (depositing of wages of sum of Rs.

8,04,800/- and its unconditional release to him). It is prayed that the said

amount be ordered to be refunded to the petitioner.

15. Despite the fact that matter had been listed on several dates for

arguments, none on behalf of the respondent/workman has attended this

court to argue the matter. The various order sheets starting from 8th January,

2010 shows that neither the workman nor any of his representatives had

attended the court on subsequent dates. In order to secure the attendance of

the workman, this court vide its order dated 23 rd March, 2011 sent a notice

to the respondent through his counsel. Despite the service of the said court

notice upon the counsel for the respondent, none had attended the court

proceedings on behalf of the workman/respondent till the date when the

arguments were heard on behalf of the petitioner.

16. There is no dispute that the contention of the learned counsel for the

petitioner finds support from the facts of this case. It is apparent that when

the dismissal order dated 16.09.1992 was passed against workman, he had

immediately challenged it by way of writ petition no. 3261/93 and his

challenge was dismissed by the Division Bench in limine on 19.01.1996.

Proceedings before the Tribunal continued till 2000 as the impugned order

was passed on 17/2/2000. From the trial court record, it is apparent that the

respondent/workman had filed its reply dated 9th January, 1997 to the

application of petitioner under Section 33(2)(B) of Industrial Disputes Act

before the Industrial Tribunal. It was thus filed by him after the dismissal of

his writ petition in limine on 19.01.1996. Still the respondent/workman did

not mention this fact in his reply. This shows that he has intentionally

concealed if from the knowledge of the Industrial Tribunal.

17. In the case of State of Maharashtra and Another vs. Basantibai

Mohanlal Khetan and Others reported in AIR 1986 SC 1466, Hon'ble

Supreme Court has held as under:-

"18. In view of this categorical finding in Chauhan's Case, it was not open to the direct recruits to reagitate this point. Although by reason of the Explanation which was inserted in Section 141 of the Code of Civil Procedure, 1908, by the Code of Civil Procedure (Amendment) Act, 1976, Section 11 of the Code does not in terms apply to any proceeding under Article 226 of the Constitution, the principle of res judicata does apply to all writ petitions under Article

226. This point was, therefore, barred by the principle of res judicata and should never have been allowed by the High Court to be reagitated."

18. Therefore, it is apparent that principle of res judicata is applicable.

Even if any order is passed by a Supreme Court in exercise of its jurisdiction

under Article 226 of the Constitution, the order acts as a res-judicata and the

issue cannot be re-agitated before any court.

19. It is apparent that the Industrial Tribunal was not aware of the order of

the Division Bench dated 19.01.1996. Since the order of 19.01.1996 acts as

a res-judicata, the order of the Tribunal dated 17.02.2000 is therefore bad in

law.

20. The entire proceedings before the Tribunal continued because the

respondent/workman had played fraud upon the Industrial Tribunal by

intentionally concealing the dismissal of his challenge in limine by Division

Bench. Respondent had played fraud upon the Industrial Tribunal.

21. In the case of K.D. Sharma Vs. Steel Authority of India Limited and

Ors. reported in (2008) 12 SCC 481, the Supreme Court has defined 'fraud'

as under:-

"The Court defined "fraud "as an act of deliberate deception with the design of securing something by taking unfair advantage of another. In fraud one gains at the loss and cost of another. Even the most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam."

22. In the case of A.V. Papayya Sastry Vs. Govt. of A.P. reported in

SCCp.231, para 22), the Supreme Court has held as under:-

"22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a

nullity and nonest in the eye of the law. Such a judgment, decree or order-by the first court or by the final court-has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings."

23. The Supreme Court has also held in para 24 of its another case titled

as Vijay Syal Vs. State of Punjab reported in SCC p.420, para 24.

"24. In order to sustain and maintain the sanctity and solemnity of the proceedings in law courts it is necessary that parties should not make false or knowingly, inaccurate statements or misrepresentation and/or should not conceal material facts with a design to gain some advantage or benefit at the hands f the court, when a court is considered as a place where truth and justice are the solemn pursuits. If any party attempts to pollute such a place by adopting recourse to make misinterpretation and is concealing material facts it does so at its risk and cost. Such party must be ready to take the consequences that follow on account of its own making. At times lenient or liberal or generous treatment by courts in dealing with such matters is either mistaken or lightly taken instead of learning proper lesson. Hence there is a compelling need to take a serious view in such matters to ensure expected purity and grace in the administration of justice."

24. In view of the settled principles of law, it is apparent that the order of

the Tribunal which had been obtained by the respondent in his favour by

playing fraud is a nullity and therefore non-est in the eye of law.

25. The respondent thus had acted in a fraudulent manner. Apparently, he

also played fraud upon this court and obtained favourable order on his

application under Section 17 B of Industrial Disputes Act claiming back

wages and its release concealing Division Bench order and got enriched by a

sum of Rs. 8,04,800/- alongwith the interest accrued thereon. Since, he

obtained these orders by playing fraud upon this court, he is liable to refund

the said money alongwith interest accrued thereon to the petitioner. The

respondent therefore is directed to refund the entire sum which had been

released to him by virtue of the order dated 29.09.04 by the Registry, to the

petitioner within four weeks from date of this order, failing which petitioner

is at liberty to realise it by way of execution.

26. The settled principle of law is that the courts are within its power and

jurisdiction to impose cost as an act of deterrence to vexatious, frivolous and

speculative litigation and defence, in order to make other litigant think twice

before filing vexatious, frivolous and speculative claim or defence.

Exemplary cost can also be levied where the party is found to be guilty of

misrepresentation, fraud or suppression of facts and reliance placed on the

findings of the Supreme Court in the case of Satyapal Singh Vs. Union of

India and Another reported in (2010)12 SCC 70.

27. The respondent in this case is guilty of suppression of material

information from the knowledge of this court.

28. In view of the above discussed conduct of the respondent, I find it a

fit case where while disposing of the present writ petition, the cost be

imposed upon the respondent. It is apparent that in view of the conduct of

the respondent, the petitioner had to go through this frivolous litigation as

an issue which stood finally decided on dismissal of the writ petition of the

respondent vide order dated 19.01.1996. Still he made the petitioners to

continue with the litigation while suppressing this information from the

respondent as well as from the knowledge of this court. Even before this

court in the present writ petition, he had concealed this fact from the

knowledge of this court. Although, an exemplary high cost is required to

be imposed upon the respondent in view of his conduct but keeping in

mind his social status, which admittedly is that he had been working as a

driver and thus belongs to a lower middle class, I am of the opinion that

imposition of sum of Rs. 25,000/- as cost upon the respondent would be

sufficient to work as a deterrence. The cost be deposited by him with Delhi

High Court Staff Welfare Fund within four weeks from the date of this

order.

29. With these directions, the petition is allowed.

DEEPA SHARMA (JUDGE) JANUARY 29, 2015 sapna