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2005 DIGILAW 281 (ALL)

STATE OF U. P v. K. M. DIXIT

2005-02-17

N.K.MEHROTRA, PRADEEP KANT

body2005
( 1 ) THIS petition has been filed by the State challenging the order passed by the U. P. Public Services Tribunal dated 20. 2. 88, which allows the claim petition preferred by the private respondent, Dr. K. M. Dixit. The respondent had filed the claim petition claiming relief of promotion on the post of Deputy Chief Medical Officer from the date on which doctor junior to him was promoted with all consequential benefits of salary, allowances and seniority etc. ( 2 ) LEARNED counsel for the State Sri Rakesh Nigam, while challenging the order passed by the Tribunal, submits that the respondent has obtained the order from the Tribunal by committing fraud upon the Court and by concealing the facts which were well within his knowledge. The respondent knew that disciplinary proceedings were pending against him right from the year 1976 and which proceedings were challenged by him in a writ petition filed in this Court bearing writ petition no. 8128 of 1987, wherein no interim order of stay was passed. The respondent also knew that his case was considered for promotion and the result of the selection was kept in sealed cover. Despite the aforesaid admitted factual position, he approached the Tribunal claiming relief of promotion from a back date on the ground that though at the time of promotion, adverse entry was existing in his favour against which he filed representation, which remained undecided but later on a petition being filed by him, adverse part of the entry was expunged and, therefore, he should be given promotion from the date his junior was promoted. ( 3 ) THE Tribunal, relying upon the aforesaid averments, which apparently remain uncontroverted, as the State could not file written statement within time, decreed the claim of the respondent. ( 4 ) THE State had asked for time before the Tribunal for filing written statement and its request was first allowed on 31. 12. 86, then again on 2. 3. 87, 24. 4. 87 and 18. 8. 87 but the written statement could not be filed, though cost was awarded for granting such time. The case was fixed for ex-parte hearing before the Tribunal. 12. 86, then again on 2. 3. 87, 24. 4. 87 and 18. 8. 87 but the written statement could not be filed, though cost was awarded for granting such time. The case was fixed for ex-parte hearing before the Tribunal. The State again moved an application and made a prayer that the written statement is ready and has been sent for being sworn, which will be filed within a short time, therefore, one more opportunity be given but the Tribunal did not find it appropriate to afford this opportunity and proceeded to hear the matter ex-parte. ( 5 ) WITHOUT commenting upon the discretion of the Tribunal in not affording opportunity to the State to file written statement, we would like to observe that in this case, where the State on the date of ex-parte hearing informed that the written statement was already prepared and was to be filed within a short time, the discretion would have been better exercised if the request was acceded instead of proceeding to decide the matter ex-parte, particularly when the claim petition was only of the year 1986. ( 6 ) IN the writ petition, the fact of the pendency of the disciplinary proceedings, its knowledge to the respondent and that his matter was considered for promotion and the result was kept in sealed cover, have been specifically averred, which facts have also been admitted in the counter affidavit filed by the respondent. Respondent has also tried to wriggle out from the aforesaid situation by putting a defence against the then pending disciplinary proceedings and for that matter he has raised certain pleas, including the plea that there was no reason for keeping the disciplinary proceedings pending for 14 years. Be that as it may. The question is not about the validity or legality of the pendency of the disciplinary proceedings but the fact of the matter lies that whether the claimant or litigant, who approaches the Court without disclosing the correct facts and with concealment of necessary facts despite having full knowledge of the facts which may go against him, can be allowed any discretion and can any relief be granted to him. ( 7 ) WE are not adjudicating upon the validity of the disciplinary proceedings nor the respondent can get any benefit out of the same, particularly when he had already filed a writ petition challenging the continuance of the disciplinary proceedings in this Court and which petition was filed before the date of the judgement passed by the Tribunal. The judgement was delivered by the Tribunal on 20. 2. 88 whereas writ petition was filed in the year 1987 i. e. during pendency of the claim petition. The respondent himself filed writ petition in this Court challenging the disciplinary proceedings, meaning thereby that he was fully aware that during the period the claim petition was being pursued by him, the disciplinary proceedings were in progress and were pending. The calculated design by the respondent in framing a claim petition by concealing material facts with a view to procure an order in his favour is nothing short than fraud upon the Court. The State was also responsible to some extent in making the Tribunal to believe the incorrect theory set up by the respondent, in as much as it failed in its duty to file written statement within time. The Tribunal gave sufficient opportunity to the state to file written statement but the State for its own reasons, which can never be justified, as usual, did not file written statement and thereafter had taken all the pleas to indicate the shortcomings in the judgement. ( 8 ) IN our opinion, no fault can be found in the Tribunals judgement on the pleadings which were before the Tribunal and in the absence of any assistance given by the State, except that the Tribunal in the given circumstances could not have ordered straightaway promotion from the back date on its own and at best the order could have been passed for his consideration, if he was not considered. ( 9 ) CARE should also be taken by the Tribunal that the State is given opportunity to consider the case of such a claimant, if his promotion has not been considered. This precaution has to be taken because instances of getting orders by misleading the Court by concealing facts is fast increasing and, therefore, to avoid and minimize the risk of passing orders which may not be true to the record, such precaution should be taken. This precaution has to be taken because instances of getting orders by misleading the Court by concealing facts is fast increasing and, therefore, to avoid and minimize the risk of passing orders which may not be true to the record, such precaution should be taken. It is also the duty of the bar to place correct facts on record after ascertaining from his client as far as possible. ( 10 ) IN Writ Petition No. 5443 (MB) of 2004:tanda Textiles and processing Mills (P) Ltd. Vs. State of Uttar Pradesh and others, this court has already expressed its concern and has observed that care should be taken by one and all in preparing and drafting the petition. ( 11 ) IN the present case, in view of the fact that the respondent had concealed material facts and had obtained an order as such, the order passed by the Tribunal cannot be sustained, which is hereby quashed. ( 12 ) SINCE the respondent has already retired from service, we retrain ourselves from passing any order for proceeding against the respondent for filing false affidavit and concealment of facts. We also restrain ourselves from imposing any exemplary cost upon him. ( 13 ) THE petition is allowed. The order dated 7. 7. 93 passed by the tribunal is quashed. No order as to costs. .