SARDABEN ISHWARLAL AKHANI v. DIRECTOR OF ICDS (SANKLIT BALVIKAS YOJNA)
1995-07-12
S.K.KESHOTE
body1995
DigiLaw.ai
S. K. KESHOTE, J. ( 1 ) HEARD the learned Counsel for the parties. The petitioners who were working as female workers at Sanklit Bal Vikas Yojana filed this writ petition before this Court for issuance of directions to the respondents not to terminate their services. Further prayer has been made that pending admission, hearing and final disposal of the writ petition the respondents be directed to maintain status quo. ( 2 ) THIS writ petition is filed by the petitioners before this Court on 23rd June, 1994. On 24th June, 1994 notice returnable on 11th July, 1994 was issued to the respondents. The respondents filed reply to the writ petition and a copy of the same was served on the learned Counsel for the petitioners on 17th October, 1994. After filing of the writ petition, on 16th September, 1994 an application has been filed by the petitioner for amendment of the writ petition. This application was allowed by this Court on 3-10-1994. ( 3 ) BEFORE considering the merits of the case I would like to state the facts regarding the application for amendment of the writ petition. The petitioners have given out in the amendment application that after filing of this petition respondentauthorities, i. e. respondent No. 2 has issued termination order by affixing the order at the petitioners residence. Copy of the order of termination dated 17th May, 1994 is enclosed as Annexure-A. Further averments have been made by the petitioners in the application for amendment of the writ petition that the action of respondent no. 3 is penal in nature because it is based upon misconduct and negligence of the petitioners. No opportunity of personal hearing has been given and also no show cause notice has been given and, therefore, the action of the respondents is bad in law, illegal, unjust, arbitrary, contrary to law and violative of Arts. 14, 16 and 21 of the Constitution of India. It has further been stated that the petitioners did not fulfil the demand of 10% commission made by respondent No. 3 and thereafter at the behest of respondent No. 3, respondent No. 2 has terminated their services. Lastly, prayer has been made by the petitioners to quash and set aside the order of termination.
It has further been stated that the petitioners did not fulfil the demand of 10% commission made by respondent No. 3 and thereafter at the behest of respondent No. 3, respondent No. 2 has terminated their services. Lastly, prayer has been made by the petitioners to quash and set aside the order of termination. ( 4 ) IT is true, the affidavit-in-reply which has been filed on behalf of respondent No. 2 by the learned Counsel does not bear either the signature of respondent No. 2 himself or even of his counsel. It is really shocking that the name of the depondent has been left blank, and the affidavit has not been affirmed. While receiving copy of the reply on behalf of the counsel for the petitioner, remark has been made, "received unaffirmed copy, subject to Advocates objection, if any". But it is a fact that the averments which have been made in the reply have not been controverted by the petitioners. It is true that this reply has not been signed, but nevertheless this document has been filed, and during the course of argument no objection whatsoever has been taken by the Counsel for the petitioners against this document. In these circumstances I have taken into consideration the affidavitin- reply filed on behalf of respondent No. 2. ( 5 ) IN the reply affidavit respondent No. 2 stated that the petitioners have not approached this Court with clean hands. The respondents have stated that the services of the petitioners were brought to an end vide letter dated 17th May, 1994 which was sent to the petitioners by registered post. The respondents have stated further in the reply that these letters were received by the petitioners. Respondent No. 2 has further stated in the reply that the petitioners were relieved with effect from 6th June, 1994. Despite these clear facts the respondents stated in the reply that the petitioners have filed this writ petition under apprehension. It is a case wherein, it is argued by the learned Counsel for the respondents, the petitioners have suppressed material facts from the Court and as such this writ petition deserves to be dismissed with costs. These averments made by respondents No. 2 in the reply to the petition have not been controverted. In view of this position those averments have to be accepted on their face value.
These averments made by respondents No. 2 in the reply to the petition have not been controverted. In view of this position those averments have to be accepted on their face value. Otherwise also I am satisfied that the petitioners have tried to mislead this Court. Clear attempt has been made by the petitioners to suppress material facts from the Court. The order of termination has been made on 17th May 1994 and it is not believable that the petitioners were not knowing the aforesaid fact. This writ petition has been filed by the petitioners, as stated earlier, on 23rd June, 1994, and despite the fact that their services were terminated and they have been relieved also on 6th June, 1994 they have filed the writ petition on the apprehension of termination of their service. The matter does not rest here. Again, by amendment of the writ petition, the petitioners have made another attempt to mislead this Court. In Para 3a which is said to be added to the writ petition, the petitioners very clearly stated that after filing of this writ petition respondent No. 2 has issued termination orders by affixing them at the petitioners residence. In the averments which have been made in para 3a the petitioners have given out that the copies of the termination orders have been affixed at their residence. But these averments become false on the basis of the documents which have been filed by the petitioners themselves along with the application for draft amendment. Copies of the termination orders which have been filed by the petitioners before this Court are not bearing the signature of the authority concerned. Not only this, even the copies of the order of termination are not certified to be true by the learned Counsel for the petitioners. The theory which has been developed by the petitioners becomes unbelievable for the reasons, firstly that the original copy has not been filed, and secondly if it would have been a case of affixation of the order on the house of the petitioners then naturally this copy of the order which has been filed before this Court should have some visible marks of affixation. Last but not the least, how it is possible that unsigned copies could be affixed by the authorities at the houses of the petitioners.
Last but not the least, how it is possible that unsigned copies could be affixed by the authorities at the houses of the petitioners. ( 6 ) I found at pages 22 to 27 of the petition first typed copies of the very orders, carbon copies of which have been filed along with the application for amendment. These are also copies which do not bear the signature of the authority concerned, nor the same are certified by the learned Advocate for the petitioner to be true and correct copies of the original orders. From the facts which have come on record it appears to be plausible that the petitioners received copy of the order of termination which has been sent to them by respondent No. 2 by registered post. The petitioners concealed these documents from this Court and have come up with the case as if the termination orders are yet to be passed. Thereafter only when notice has been issued by this Court they filed typed copy of these documents before the Court along with application for draft amendment. This conduct of the petitioners is highly unjustified, unwarranted, and undesirable. The extra ordinary jurisdiction under Article 226 of the Consitution of India is equitable and whosoever seeks equity of this Court it is expected of him to come up with clean hands, and to place before this Court all the facts clearly, unambiguously as well as to produce all the documents. In case the petitioners make attempt to mislead this Court, and by misleading this Court get order of issue of notice, the writ petition deserves to be dismissed in limine on this ground alone. The writ petition deserves no consideration at all on merits in view of the aforesaid conduct of the petitioners. If such conduct is allowed to be practised before this Court, then the very purpose and object of extra ordinary jurisdiction will be misused. These extra ordinary powers are to be exercised in favour of citizens who come with clean hands and their conduct does not suffer from any concealment of facts or suppression of any material document. In view of these facts the writ petition deserves no consideration on merits whatsoever. ( 7 ) THE falsehood in the case of the petitioners clearly comes out from the pleadings in para 2. 8 of the writ petition. In para 2.
In view of these facts the writ petition deserves no consideration on merits whatsoever. ( 7 ) THE falsehood in the case of the petitioners clearly comes out from the pleadings in para 2. 8 of the writ petition. In para 2. 8 of the writ petition the petitioners stated as under :"the termination order issued by the respondent authority is in contravention of Sec. 25-F and is liable to be quashed and set aside. "the reading of the aforesaid averment which has been made on oath by the petitioners leaves no doubt in the mind of the Court that the petitioners have deliberately made wrong statement of fact before this Court that they have apprehension of termination of their services. The petitioners had knowledge of the order of termination of their services. They in fact received copy of the order of termination of their services by registered post, but they have suppressed all these facts. Whosoever comes up with false case leaves something on record which itself makes their case to be false. Despite knowing all these facts the petitioners have come up with the case of apprehension and thereafter attempt has been made to file application for draft amendment in which again misleading statements have been made. The averments which have been made by the petitioners in para 2. 8 are based on their personal knowledge, and at one point of time I thought of issuing order for prosecution of the petitioners for filing false affidavit but taking into consideration the fact that the petitioners are ladies from villages I dropped that idea. However, this fact disentitles the petitioners from getting any equitable relief from the Court. ( 8 ) IT is settled law that a petitioner is not entitled as a matter of course to writ of certiorari or writ of mandamus. Petitioner is under obligation to the Court to make full and correct disclosure of material facts within his knowledge and if he does not do so, and suppress any material fact and thereby obtain an order to issue notice, the Court will not grant relief to him on merits. Reference may be made in this connection to the following decisions : (1) Rev. Kensington v. Income-tax Commissioner, reported in 1917 (1) KB 486. (2) Kabool Chand v. Deputy Custodian, Alwar, ILR 1951 (1) Raj. 958.
Reference may be made in this connection to the following decisions : (1) Rev. Kensington v. Income-tax Commissioner, reported in 1917 (1) KB 486. (2) Kabool Chand v. Deputy Custodian, Alwar, ILR 1951 (1) Raj. 958. (3) Ganga Dutt v. Bhagwan Das Taparia, I. L. R. 1958 (8) Raj. 364. (4) Hindustan Motors Ltd. v. Union of India, AIR 1954 Cal 151 . (5) Haji Abdul Shakoor v. Rent Control and Eviction Officer, Kanpur, AIR 1959 All. 440 . Reference may also be made to decision of this Court in Special Civil Application no. 3306 of 1984 decided on 4-2-1995 (Reported in AIR 1995 Guj 206 , Patel kaushikbhai Bhogilal v. Zapli Khadni Dana Nakhwani Chaklani Parabadi Trust ). ( 9 ) IN view of the aforesaid discussion, the writ petition deserves no consideration on merits. Otherwise also the writ petition deserves no consideration on merits yet on another ground. In para 2. 8 of the petition the petitioners have come out with the case that their services have been terminated in contravention of the provisions of Sec. 25-F of the Industrial Disputes Act, 1947. Precisely the petitioners claim is that the respondent is industry within Sec. 2 (j) of the Industrial Disputes Act, 1947, and the petitioners have completed more than three years continuous service without any break. So far as these averments are concerned, the respondents have not controverted the same specifically in the reply to the writ petition. In the reply to the petition the respondents have stated that the Industrial Disputes Act is not applicable in the case of the petitioners as they were not paid salary or wages, but they were paid only honorarium for doing honorary service to the society at large. Whether this is a case of honorarium payment for doing honorary service is a question which has to be decided on the basis of evidence led by the parties before the labour Court or Industrial Court as the case may be to which reference is made. On these questions of facts on inquiry can be made by this Court exercising powers under Article 226 of the Constitution of India.
On these questions of facts on inquiry can be made by this Court exercising powers under Article 226 of the Constitution of India. Even if the termination of the services of petitioners have been made for alleged misconduct, these are also matters which are to be considered in the industrial adjudication before the Labour Court or industrial Tribunal as the case may be and not in petition under Art. 226 of the constitution of India. When the petitioners have available to them adequate, alternative remedy under the statute, they have to first resort to that remedy rather than to approach this Court under Art. 226 of the Constitution of India. In a case where alternative remedy is available under a statute, normally the Court should direct the parties to first resort to the alternative remedy available under the statute. Where alternative remedy can be read in a statute, plea of resort to the remedy under arts. 226 and 227 of the Constitution must be discouraged. In this respect reference may be made to decision of the Supreme Court in the case of Shyam Kishore v. Municipal Corporation of Delhi, reported in AIR 1992 SC 2279 . ( 10 ) IN the result the petition fails and the same is dismissed. As the petitioners have not come up with clean hands before this Court and they have deliberately made attempt to mislead this Court and thereby got order issuing of notice to the respondents, they are directed to pay Rs. 1,000. 00 each by way of cost of this writ petition. Notice discharged. .