Bharatkumar D. Kanabar vs Paschim Gujarat Vij Company Ltd.,
2021 Latest Caselaw 4304 Guj

        C/SCA/998/2017                                      JUDGMENT



       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 998 of 2017

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                   BHARATKUMAR D. KANABAR
                             Versus
          PASCHIM GUJARAT VIJ COMPANY LTD., & 2 other(s)
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Appearance:
MR YOGEN N PANDYA(5766) for the Petitioner(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 3
NOTICE SERVED(4) for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                 Date : 17/03/2021
                 ORAL JUDGMENT

1. Rule. Mr Deepak Dave, learned advocate waives service of Rule for the respondents.

2. With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing.

3. By this petition, inter alia, under article 226 of the Constitution of India, the petitioner has prayed for direction to the respondent authorities to grant promotion with effect from 5.8.2008; fix the pay and accordingly revise the same with effect from 1.1.2006.

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4. The facts, stated by the petitioner in the petition memo, are as under: -

4.1. The petitioner initially joined as Junior Assistant with the respondents and had received upgraded scale, as per the circular No.B-26-569 dated 27.5.2004, of Rs.5000-10,525 which continued up to 5.8.2008. According to the petitioner, he was eligible to get promotion; however, on 5.8.2008, the petitioner was put in the scale of Rs.4000-10,025, lower than the scale of Rs.5000-10,525. The petitioner refused to accept the same and thereafter, for the reasons best known to the respondents authorities, he was put in the lower scale of Rs.3400-8300. The petitioner, on attaining the age of superannuation, retired on 31.12.2012. Vide communication dated 6.6.2015 the petitioner was informed about petitioner being put in the lower scale as he has not cleared the departmental examination.

4.2. The grievance of the petitioner is that the respondents had never informed the petitioner about conducting departmental examinations and without giving any opportunity to the petitioner as well as without following the principles of natural justice, the petitioner was down- graded by the authorities. The action on the part of the respondent authorities is completely mala fide, perverse, without application of mind and against the rules prevalent at the relevant point of time.

4.3. According to the petitioner, on 31.12.2005, the scale of the petitioner was Rs.5000-10,525, in conformity with the GSO No.1 and the same should have been revised with effect from 1.1. 2006, considering the personal pay merge circular no. 2176 dated 17.10.2009. The pay fixation with effect from 1.1.2006 comes to Rs.16,160/-(basic pay) and therefore, the basic pay of the petitioner at the time of the retirement was Rs.21,320/-. The grievance is that though the grade was

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Rs.5000-10,525, petitioner was not given the promotion and pay fixation with effect from 1.1.2006 as on 5.8.2008. Therefore, the petitioner issued a legal notice dated 16.6.2015 to the respondent authorities, inter alia, requiring the respondent to give promotion and pay fixation with effect from 1.1.2006. Apropos the legal notice, the petitioner received a reply dated 4.7.2015 refuting the claim. Another notice dated 25.7.2015 was issued, raising various grievances as well as pointing out errors committed by the respondent authorities in pay fixation. The grievance of the petitioner is that just to keep the petitioner away from getting the benefits, the respondent authorities had applied Circular No. EP114 dated 23.6.2003 and, therefore, the anomaly had arisen in the case of the petitioner.

4.4. In the aforesaid background, the petitioner has filed the present writ petition.

5. The respondent authorities have filed a reply, raising various contentions and one of which is about the petitioner having suppressed the material facts. While adverting to the service tenure of the petitioner, it is stated that the petitioner was appointed and was working as a Junior Assistant (Meter Reader) and his first higher pay scale was due on 6.8.1992 which was granted followed by grant of second higher pay scale on 6.8.2002, on completion of further 10 years of service. Vide circular dated 18/23.6.2003, the post of Meter Reader was upgraded to the post of Junior Assistant and accordingly, the pay was fixed vide office order dated 27.11.2003, putting the petitioner in the scale of Rs.5000-10,525. Since the petitioner did not clear the departmental examination within three attempts, on 20.2.2005 the petitioner was placed in the pay scale of Rs.4000-10,025, which, undisputedly, has not been challenged by the petitioner. Hence, it is now impermissible to the petitioner to make any grievance against the order dated 20.2.2005

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5.1. Further, the post of Senior Assistant is a feeder cadre for promotion to the post of Deputy Superintendent for which, the petitioner had to pass departmental examination and as per the procedure adopted by the Paschim Gujarat Vij Company Limited, (hereinafter referred to as "the PGVCL"), examination dates were notified well in advance to all the concerned sub-divisions, bringing it to the knowledge of all the employees; however, the petitioner's assertion that no departmental examinations have been held is incorrect. The departmental examinations were held on 26.9.2004, 23.9.2007, 27.7.2008 and 20.9.2009 and in none of the examinations, the petitioner appeared and therefore, it is a blatant lie on the part of the petitioner that no examinations were conducted. Since the petitioner had not cleared the departmental examination, on 20.5.2005 the petitioner was placed in the pay scale of Rs.4000-10,025. of the Senior Assistant.

5.2. It is further stated that somewhere in the year 2008 when the petitioner's turn came, he was granted promotion to the post of Senior Assistant vide order dated 5.8.2008. However, the petitioner had refused to accept the promotion by addressing a communication dated 18.8.2008, on the ground of his family circumstances. The said application was processed further which led to the passing of the order dated 18.8.2008, putting the petitioner in the pay scale of Rs.3400- 8300 of the Junior Assistant. The said order dated 18.8.2008 has never been challenged by the petitioner and therefore the petitioner is bound by his undertaking dated 14.9.2001, given in terms of the Circular No. 578 dated 8.4.1993 whereby, the employee concerned has to undertake that he will not refuse the regular promotion, as and when it becomes due. For any reason if the employee concerned declines the regular promotion, the benefits extended to the employee shall be forfeited namely benefit under the Higher Grade Scale Scheme. Therefore, since

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the petitioner refused the promotion in the year 2008, he was placed in the lower grade of Junior Assistant, that is, Rs.3400 -8300.

5.3. Adverting to the preliminary objection as regards delay and laches, it is stated that if at all there was a cause of action, the same was in the year 2005 and thereafter in the year 2008. However, the petitioner has filed the present writ petition in the year 2017 and moved in the year 2019 and therefore, there is a delay on the part of the petitioner in ventilating his grievance. Further, making repetitive representations will not give the cause of action to the petitioner. Also, the petitioner retired from the service on 31.12.2012 and having accepted all his retirement dues, the petitioner cannot turn around and now challenge the same in the year 2017, raising the grievance against the communication issued in the year 2015.

5.4. It is thus urged that the petition, being bereft of merits, deserves to be dismissed with cost.

6. Mr.Yogen Pandya, learned advocate, submitted that the petitioner has been denied the promotion only on the ground that he has not passed the departmental examination. In fact, the respondent authorities had never informed the petitioner about holding of the departmental examination and since the petitioner was not informed, no fault can be attributed to the petitioner for not clearing the departmental examination. The said ground, on which the petitioner has been denied promotion, is mala fide, perverse and therefore illegal. It is submitted that the communication dated 6.6.2015 issued by the Additional Engineer, PGVCL, Circle Office, Jamnagar denying the promotion as well as pay fixation and various other orders passed by the authorities are without following the principles of natural justice, ex-facie illegal, unjust, unreasonable and against the provisions of the Rules and Regulations governing the service of the petitioner. It is thus, urged that

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the communication dated 06.06.2015 deserves to be quashed and set aside.

7. Per contra, Mr.Deepak Dave, learned advocate for the respondents, submitted that the petitioner has suppressed the material facts, though the petitioner has made a reference to the order dated 05.08.2008, he has deliberately not placed on record the said order; subsequent application dated 18.8.2008 so also, consequential order dated 18.08.2008 which has been passed by the respondent authorities. It is submitted that when the petitioner is seeking direction to the respondent authorities to grant promotion, it was incumbent upon him to have placed on record all the details as regards the promotion order dated 05.08.2008 and also the fact of petitioner not accepting the promotion. However, by not doing so, the petitioner has deliberately suppressed the facts which go to the root of the matter. Had all the facts being mentioned together with supporting documents in the petition, this Court would not have even issued notice. It is stated that in view of suppression of facts by the petitioner, the petition deserves to be dismissed without grant of any relief.

7.1. It is next submitted that the petition suffers from the vice of delay and laches considering the fact that apropos the application of the petitioner and in view of the refusal to accept the promotion, the Chief Executive Officer & Superintending Engineer (O&M), Circle Office, Jamnagar had passed the order dated 18.08.2008 putting the petitioner in the lower grade of Rs.3400-8300 of Junior Assistant and once the said order has been accepted by the petitioner, now at this distance of time, it would not be open to him to file the present petition with the prayer seeking direction to the respondent authorities to grant promotion. It is submitted that present is not the case of non-payment of pension giving petitioner, a recurring cause of action, in fact, the issue raised in the present petition relates to the promotion.

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7.2. Reliance is placed on the judgment of the Apex Court in the case of Union of India vs. Tarsem Singh, reported in (2008)8 SCC 648. It is submitted that the Apex Court has categorically held that normally, a belated service -related claim will be rejected on the ground of delay and laches, where remedy is sought by filing a writ petition or limitation where remedy is sought by an application to the Administrative Tribunal.

7.3. Reliance is also placed on the judgment of the Apex Court in the case of State of Jammu & Kashmir vs. R.K. Zalpuri, reported in (2015) 15 SCC 602. It is submitted that the Apex Court, while considering numerous judgments, allowed the writ petition filed by the State of Jammu & Kashmir, observing that the grievance agitated by the respondent therein did not deserve to be addressed on merits, for, doctrine of delay and laches had already visited the claim like the chill of death which does not spare anyone even the one who fosters the idea and nurtures the attitude that he can sleep to avoid death and eventually proclaim "deo gratias" - "thanks to God". The Apex Court has further held that the writ Court while deciding a writ petition is required to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Stale claims are not to be adjudicated unless non-interference would cause grave injustice. Mr.Dave, learned advocate for the respondents further pointed out that so far as the claim of seniority or promotion is concerned, the Apex Court has categorically held that if such claims would affect the others, the delay would render the claim stale and doctrine of laches will be applied.

7.4. Further reliance is placed on paragraph 10 of the decision of the Apex Court in the case of C. Jacob vs. Director of Geology & Mining, reported in (2008)10 SCC 115 to submit that the Apex Court, while considering the aspect of making the representations and decision thereon by the State Government, has categorically observed that the

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replies to the representations cannot furnish a fresh cause of action or revive a stale or dead claim. It is submitted that mere issuance of the communication dated 6.6.2015 that by itself, will not revive the stale claim of the petitioner which otherwise had attained finality in the year 2008.

7.5. In the present case, as is clear from the record, the petitioner has refused to accept the promotion on 18.8.2008 and thereupon order dated 18.8.2008 has been passed and therefore, the petition suffers from the vice of delay and laches and does not deserve to be interfered with on this count alone. It is further pointed out that the petitioner retired in December,2012; however, the petition has been filed in the year 2017 and moved after two years, that is, in the year 2019. Therefore, there has been delay on the part of the petitioner in approaching this Court.

7.6. While referring to the consequential prayer of fixing the pension of the petitioner, it is submitted that so far as the PGVCL is concerned, there is no such policy of pension, for, the employees concerned are covered under the EPF, as is applicable to the private organization.

8. Mr.Yogen Pandya, learned advocate for the petitioner, proposes not to make any further submissions, in view of the submissions made by the learned advocate for the respondents.

9. Heard Mr.Yogen Pandya, learned advocate for the petitioner and Mr.Dipak Dave, learned advocate for the respondents.

10. Pertinently, the petitioner came to be appointed vide order dated 29.7.1980 to the post of Helper and thereafter, vide order dated 6.6.1983, was promoted to the post of Meter Reader in the pay-scale of Rs.275-635 in the Khambhaliya Division and his first higher pay-scale was due on 06.08.1992 which, the petitioner was granted and the

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second higher pay-scale of Senior Assistant came to be granted to the petitioner on 6.8.2002. As is discernible from the record, vide Circular No.EP/I/STF/MR-JA/2003/114 dated 18/23.06.2003, the post of Meter Reader was upgraded and merged with the post of Junior Assistant. Accordingly, the petitioner was upgraded to the post of Junior Assistant and his pay-scale came to be fixed at Rs.5000-10525, vide order dated 27.11.2003.

11. Further, as per the policy of the respondents, if the employee is fit for promotion in all respect and has passed the departmental examination; he can be considered for higher pay-scale. It is the case of the respondents that the examination dates were notified well in advance and were conducted on 26.09.2004, 23.09.2007, 27.07.2008 and 20.09.2009. The petitioner did not appear in any of the examinations and could not clear the departmental examination within the stipulated period and specified chances. Consequently, vide order dated 20.02.2005, the petitioner was placed in the pay-scale of 4000- 10025 of the Senior Assistant. Clearly, the petitioner accepted the reversion from the pay-scale of Rs.5000-10525 to the pay-scale of Rs.4000-10025, and the same remained unchallenged.

12. Thereafter, as per the seniority, the petitioner was due for promotion and therefore was considered for promotion. Accordingly, he was offered promotion vide order dated 5.8.2008 fixing the pay-scale of Rs.4000-10025 as per S.R.102(b). Immediately thereafter, on 18.08.2008, the petitioner submitted an application, inter alia, showing his reservation for promotion at the transferred place, on the ground that due to the family circumstances, it is not possible for him to accept the promotion. The application dated 18.8.2008 of the petitioner was processed by the Chief Executive Officer & Superintending Engineer (O&M), Circle Office, Jamnagar who, vide order dated 18.8.2008, accepted the request of the petitioner. However, while accepting the

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request, the petitioner was put in the lower grade of Rs.3400-8300. The petitioner accepted the said order without protest and did not challenge the same. The order reads thus:

"OFFICE ORDER:

Consequent upon refusal to accept absorption to the post of Senior Assistant under Khambhalia Division as per this office order No. JCO/EST-I/PRM/08/7681 Dated 05-08-08, Shri B.D.Kanabar, Jr. Asstt, working at Industrial S/Dn under City - II Division, Jamnagar is hereby reverted to his original lower grade and post of Jr. Asstt. with effect from date 05-08-08 i.e .from the date of issue of his posting order as per his refusal application dtd.18-08-2008 in accordance with the provision of GSO - 247 and EST. Circular No.578 & GSO-334.

He will draw his pay in the lower grade of Rs.3400-8300 of Jr .Asstt., which he would drawing but he has not been given the benefit of H.G. under said GSO-240 & EST. Circular No.578/GSO-334 with effect from the date of his reversion."

13. Pertinently, the erstwhile Gujarat Electricity Board, had issued an Establishment Circular No.578 dated 8.4.1993 to deal with the problem of stagnation in many cadres due to absence or restricted chances of promotions. The scheme of higher grade scale is subject to the terms and conditions laid down in the said Circular. Clause x), states that each employee who avails the benefit of the higher grade scales under the scheme, shall have to give an undertaking in writing as per Annexure- I, declaring that he shall not refuse the regular promotion as and when it becomes due. The idea behind clause x) is to give benefit to those who were stagnating beyond the period of 9/18/27 years and the benefit was not to cover those who have relinquished the promotion for any reason. The said clause x), reads as under:

" x) Each employee who avails the benefit of the higher grade scales under this scheme shall have to give an undertaking in writing as per annexure I appended to this Circular that he shall have to not refuse the regular promotion as and when it becomes due. This is because this scheme is intended to benefit those who are stagnating beyond a period of 9/18/27 years and it cannot be extended to those who have relinquished promotion for any reason. The undertaking may also state that if for any reason he declines the promotion when it becomes due, he shall forfeit the benefit under this scheme and shall

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stand reverted in the original lower grade from the date of promotion order and shall draw pay which he would have drawn had he not been given the benefit of the higher grade scale under this scheme. There will, however, be no recovery on account of reversion of employee to his original lower grade for the period which he has drawn the pay and allowances in higher grade scale, till the date of withdrawal of higher grade."

14. In tune with the clause x) of the aforesaid Circular the petitioner on 14.9.2001 had submitted an Undertaking. The contents of the undertaking, read thus:-

"I, Kanabar Bharatkumar Devchand, Working as Meter Reader in the office of D.E. Ind. Sub-Divn. at Jamnagar have gone through the provisions of Circular No.578 dated 84-1993 and hereby agree to the terms and conditions as stated therein. I further hereby give an undertaking to the effect that I shall not refuse the regular promotion as and when it becomes due to me. If for any reason, I declainet the Regulation Promotion when it becomes due to me I shall forfeit the benefit under the Higher Grade Schele Scheme' and shall draw pay which I would have drawn had I not been given the benefits of the 'HIGHER GRADE SCALE SCHEME.'"

15. Notably, the petitioner had given an undertaking dated 14.09.2001 (at Annexure-R9 to the affidavit of the Respondent) declaring to the effect that he has gone through the provisions of the Circular No.578 dated 8.4.1993 and agree to the terms and conditions as stated therein. It has also been declared that he shall not refuse the regular promotion as and when it becomes due and if for any reason, if the regular promotion is declined, the petitioner shall not claim the benefits under the Higher Grade Scale Scheme and shall draw the pay which he would have drawn had he not been given the benefits of the Higher-Grade Scale Scheme. Therefore, reading the order dated 18.8.2008 in juxta position with the undertaking dated 14.9.2001 of the petitioner, it is the petitioner, who himself has agreed for reversion in the lower scale in the event of refusal or non-acceptance of the regular promotion by him. In conformity with clause x) of the Circular as well as the Undertaking dated 14.09.2001, as aforesaid, vide order dated 18.08.2008, the petitioner was put in the lower grade of 3400-8300 of

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the post of Junior Assistant. The said order dated 18.8.2008 has been accepted by the petitioner with open eyes and not challenged, till he retired in the year 2012 and not even challenged in the captioned writ petition, that was filed almost after 11 years of the order dated 18.8.2008. Therefore, the prayer of the petitioner for grant of promotion with effect from 5.8.2008, does not deserve acceptance.

16. Adverting to the aspect of the letter dated 6.6.2015, it appears that some application was made in the year 2011 and thereafter, in the year 2014 which was responded to by the respondent by letter dated 06.06.2015. Thereafter two legal notices dated 16.06.2015 as well as 25.07.2015 were issued by the petitioner, one of which was replied to by the respondent on 4.7.2015. The present petition is nothing but a tacit attempt on the part of the petitioner to revive the stale claim, which otherwise, has remained unchallenged during the service tenure of the petitioner. The cause of action, has been tried to be revived by issuing notices to the respondents raising grievance on the ground that there has been anomaly in passing the order dated 05.08.2008, followed by filing of the captioned writ petition.

17. The Apex Court in the case of C. Jacob vs. Director of Geology & Mining (supra) has, while dealing with the aspect of making representations and decision thereon by the authorities, held in para 10 that the replies to such representations cannot furnish a fresh cause of action or revive a stale or dead claim. Para 10 of the said judgment reads thus:-

"10. Every representation to the government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the department, the reply may be only to inform that the matter did not concern the department or to inform the appropriate department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a

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fresh cause of action or revive a stale or dead claim."

18. Therefore, communication dated 06.06.2015 cannot be said to be giving a cause of action to the petitioner to agitate the grievance. Further, the request of the petitioner was turned down and issuing notices on the similar lines, will not explain the delay on the part of the petitioner. Even otherwise, the said communication dated 06.06.2015 is not under challenge as the prayer in the present writ petition is limited to the direction to the respondent authorities to grant promotion to the petitioner with effect from 05.08.2008.

19. Also, the petition deserves to be dismissed on the ground of delay and laches. The Apex Court in catena of decisions, has held that normally, a belated service related claim will be rejected on the ground of delay and laches, where remedy is sought by filing a writ petition. Pertinently, the grievance of the petitioner is that he has been deprived of the promotion, however, the promotion was already granted to the petitioner vide order dated 5.8.2008 and it was at his behest that the respondent authorities, way back in the year 2008 had passed the order dated 18.08.2008.

20. In this behalf the judgment of the Apex Court in the case of State of M.P. vs. Nandlal Jaiswal reported in (1986) 4 SCC 566 is worth referring to. It has been held that it is well settled that the powers of the High Court to issue an appropriate writ under Article 226 of the Constitution of India is discretionary and the High Court, in exercise of its discretion, does not ordinarily assist tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. If at all, there was any cause of action available to the petitioner, the same was in the year 2005 when the

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petitioner was placed in the pay-scale of Rs.4000-10025 and thereafter, in the year 2008, when the petitioner was reverted back to the lower grade and placed in the pay-scale of Rs.3400-8300. However, the petitioner chose not to challenge the same till his retirement and even after his retirement. Therefore, the captioned writ petition suffers from the vice of delay and laches.

21. Moreover, the petitioner, by present writ petition, has prayed for direction to the respondent authorities to grant promotion with effect from 5.8.2008 and accordingly, fix the pay with effect from 01.01.2006. However, while so doing, there is not a whisper about the facts namely

(i) the undertaking dated 14.9.2001; (ii) promotion order dated 5.8.2008 promoting the petitioner to the post of Senior Assistant; (iii) application dated 18.8.2008 of the petitioner refusing to accept the promotion and

(iv) the order dated 18.08.2008 by which the petitioner was put in the lower grade of Junior Assistant. The aspect of selective disclosure and non-disclosure of material facts is further strengthened by the averments made in paragraph 3.5 of the petition and the same is reproduced herein below:

"3.5 the petitioner was able to get promotion order from the respondent authorities, shockingly, on 5.8.2008, the petitioner was put in the scale of Rs.4000-10,025, which is lower scale than Rs.5000-10,525. Therefore, the petitioner has refused to accept the lower scale. Further, shockingly, for the reasons best known to the respondent authorities, the petitioner was put in further lower scale of Rs.3400-8300 then Rs.4000-10,025."

22. The assertion in the aforesaid paragraph that "for the reasons best known to the respondent authorities, the petitioner was put in further lower scale of Rs. 3400-8300 then Rs. 4000-10,025. " is misconceived for , the reason was very much known to the petitioner but he chose not to disclose the said fact in the petition. Therefore, the learned advocate for the respondent is right in his contention that there is a suppression of facts on the part of the petitioner inasmuch as the

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petitioner, though had claimed pay-scale on the basis of the order dated 5.8.2008, he has not disclosed the material facts which were against the petitioner. Apt is the judgment, cited by the learned advocate for the respondent, of the Apex Court in the case of K.D.Sharma vs. Steel Authority of India Ltd. reported in (2008)12 SCC 481, wherein it has been held that Jurisdiction of the High Court under Article 226 of the Constitution of India is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. 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, his petition may be dismissed at the threshold without considering the merits of the claim. The Apex Court in paragraphs 38 and 39 has observed thus:

"38. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play `hide and seek' or to `pick and choose' the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of Writ Courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because, "the Court knows law but not facts".

39. If the primary object as highlighted in Kensington Income Tax Commrs. 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, maneuvering 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

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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 view of the aforementioned discussion, the petition deserves to be dismissed on this count as well.

23. Therefore, in view of the afore mentioned discussion, on all counts, the petition deserves to be dismissed and is hereby dismissed. Rule is discharged. No order as to cost.

(SANGEETA K. VISHEN,J) Hitesh