Keshav Prasad Sharma v. Chairman/chief Managing Director, South Eastern Coalfields Ltd. , And Others
2020-01-06
ATUL SREEDHARAN, SANJAY YADAV
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DigiLaw.ai
JUDGMENT Atul Sreedharan, J. - The present Writ Appeal has been filed by the appellant Keshav Prasad Sharma, aggrieved by the order dated 06.11.2019 passed by the learned Single Judge whereby, the Writ Petition No.20928/2018 filed by the petitioner, was dismissed on the grounds of suppressio veri and suggestio falsi . 2. The brief facts of the case are that the petitioner had filed a writ petition bearing W.P. No.16445/2010 seeking a writ of mandamus for the correction of his date of birth in the service record which, according to the petitioner, was wrongly entered at the time of his appointment ignoring the mark-sheet of the Higher Secondary School Examination and so he prayed that after holding an appropriate enquiry, his date of birth may be corrected in the service record. The said petition was partly allowed and disposed of with a direction that from the date of pronouncement of the order within a month, the petitioner shall submit his claim along with such relevant documents before the respondent being the South Eastern Coalfields Ltd.. The respondent was directed to consider the question relating to the date of birth of the petitioner in the light of Implementation Instruction No.76 Clause (B) and other Clauses and the same be decided within a period of three months. With the aforesaid direction, the Writ Petition was disposed of finally. 3. Thereafter, the petitioner filed Writ Petition No.20928/2019 in which he averred about the order passed by this Court on 15.03.2017 in W.P. No.16445/2010. The petitioner submitted before this Court in paragraph No.5.8 of the Writ Petition that several representations made before the authorities concerned by him, did not yield the desired result and so he filed Writ Petition No.10722/2009 before this Court, which was disposed of by an innocuous order dated 23.11.2009 by which this Court directed the respondent/authority to decide the representation of the petitioner. Subsequently, the representation of the petitioner was rejected by the respondents. When the representation of the petitioner was dismissed by the respondents, the petitioner filed a second Writ Petition being W.P. No.16445/2010 for correction of his date of birth in the service record, which as mentioned hereinabove, was disposed of by order dated 15.03.2017 whereby, the authority concerned was directed to decide the petitioners representation in the light of Implementation Instruction No.76.
In paragraph 5.11 of the petition, the petitioner made a categorical averment to the effect that the respondents have failed to correct his date of birth in the service record though the petitioner had submitted a copy of the order passed by this Court dated 15.03.2017 passed in W.P. No.16445/2010. Therefore, the petitioner being aggrieved by the omission on the part of the respondents in not complying with the order passed by this Court on 15.03.2017 and not passing an appropriate order, had filed a Contempt Petition being C.P. No.916/2018, which was decided by this Court on 28.03.2018 whereby, this Court directed the competent authority to comply with the order passed by this Court on 15.03.2017 in W.P. No.16445/2010 within a period of three months from the date of receipt of certified copy of the order dated 28.03.2018 passed in Contempt Petition No.916/18. Thereafter, the petitioner submitted a copy of the order dated 28.03.2018 alongwith the representation before the respondents, but nothing fruitful was done. He further states that after the passing of the duration fixed by this Court by its order dated 28.03.2018, the respondents allegedly did nothing and therefore, he was compelled to file a second Contempt Petition before this Court bearing No.2478/2018, which stood dismissed by the learned Single Judge. In paragraph 5.13 of the petition, the petitioner states that during the pendency of the representation, the respondents had issued a letter dated 23.03.2018 informing the petitioner that he would stand retired on 30.09.2018. The Writ Petition No.20928/2018 was filed before this Court on 04.09.2018. 4. The learned Single Judge without entering into the merits of the case, dismissed the Writ Petition on the sole ground of lack of bonafides on the part of the petitioner on account of suppresio veri and suggestion falsi indulged by him. The order is extremely elaborate and the learned Single Judge has laid down the facts as to how this Court was mislead by the petitioner and this Court, by an interim order dated 19.09.2018, had stayed the order passed by the respondents thereby directing them not to retire the petitioner till the next date of hearing. The interim order granting the relief to the petitioner is mentioned on internal page No.4 of the order, which, we are of the opinion ought to be reproduced in full. ' Shri Sanjeev Kumar Tiwari, learned counsel for the petitioner. Heard.
The interim order granting the relief to the petitioner is mentioned on internal page No.4 of the order, which, we are of the opinion ought to be reproduced in full. ' Shri Sanjeev Kumar Tiwari, learned counsel for the petitioner. Heard. Issue notice to the respondents on payment of process fee within seven days, failing which this petition shall stand dismissed without further reference to the Court. He is also heard on interim relief. Learned counsel for the petitioner submits that this is his third visit to this Court for the present grievance. When petitioner noticed that his date of birth has been erroneously recorded by the employer, he filed W.P. No.16445/2010 before this Court which was decided by order dated 15.03.2017. The petitioner was directed to submit his claim along with relevant documents regarding correction of his date of birth and in turn, the respondents were directed to consider the claim of change of date of birth in the light of Clause (B) of Implementation Instruction No.76. In turn, the petitioner submitted his representation dated 25.04.2017 (Annexure P/9) along with relevant documents. No decision on the said representation has been taken by the employer. Aggrieved, the petitioner filed first Contempt Petition No.916/2018, which was disposed of on 28.03.2018 by directing the employer/contemnors to take a decision within three months from the date of certified copy of the order. The petitioner filed representation (Annexure P/11) in furtherance thereof but this representation also could not fetch any result. Thus, yet another Contempt Petition No.2478/2018 has been filed, which is still pending consideration. On the one hand, the respondents have not decided the claim of the petitioner and on the other hand, they intend to retire the petitioner on 25.09.2018, whereas as per (Annexure P/1) [Higher Secondary School Certificate], the petitioner is entitled to continue till 2021. Considering the aforesaid and subject to hearing the other side, till next date of hearing, the respondents shall not retire the petitioner. Notices be made returnable in next month. C.C. as per rules '. 5. The said interim order was granted by this Court under mistaken perception that the respondent was trying to retire the petitioner without complying with the order dated 15.03.2017 disposing of W.P. No.16445/2010 by which this Court had directed the respondents to decide the representation of the petitioner giving due regard to the Implementation Instruction No.76.
5. The said interim order was granted by this Court under mistaken perception that the respondent was trying to retire the petitioner without complying with the order dated 15.03.2017 disposing of W.P. No.16445/2010 by which this Court had directed the respondents to decide the representation of the petitioner giving due regard to the Implementation Instruction No.76. This Court while passing the interim order held that no decision on the representation was taken by the respondent on account of which the petitioner had filed the first Contempt Petition, which was disposed of with a direction to the Contemnor to take a decision within a period of three months from the date of receipt of certified copy of the order. As that was not done, another Contempt Petition was filed by the petitioner, which resulted in dismissal by the learned Single Judge. 6. A return was filed by the respondent to the said Writ Petition wherein they had placed on record an order dated 27.10.2017, by which the authority concerned had complied with the order dated 15.03.2017 passed by this Court in W.P. No.16445/2010 and dismissed his representation for correction of his date of birth. It is relevant to reproduce the last paragraph of the order dated 27- 28.10.2017 passed by the authority concerned, which read as under:- ' Shri Keshav Prasad Sharma was appointed as a casual Majdoor in the year 1988 and his age was assessed as 29 years at the time of his appointment by the Colliery Medical Officer as per the statutory provisions. He has not submitted his educational certificates at the time of his appointment in support of his date of birth. It is therefore clear that he had suppressed the educational qualification which he was having at the time of joining the Company as it suited him to obtain the job meant for illiterate persons. Not only that, from time to time, he has accepted his date of birth as 25.09.1958, but also submitted a bio-data in the year 2003 indicating his date of birth as 25.09.1958 among other details. He was also given an opportunity to appear for radiological test, which he declined and has raised an issue of date of birth at the fag end of his service by submitting the educational qualification certificates so as to gain extra years of service '.
He was also given an opportunity to appear for radiological test, which he declined and has raised an issue of date of birth at the fag end of his service by submitting the educational qualification certificates so as to gain extra years of service '. This order was concealed by the petitioner when he filed W.P. No. 20928/2018. The conduct of the appellant is deplorable. The appellant is compulsive liar. In this regard, we wish briefly record the chronology of the petitions filed by him. 7. The first time the petitioner had filed a Writ Petition seeking correction of his date of birth in the service record was by way of W.P. No.10722/2009 filed by the petitioner/appellant herein through Mr. Sanjiv Kumar Tiwari, learned counsel. That petition was disposed of by order dated 23.11.2009 whereby the authority concerned was directed to decide the representation of the petitioner within a period of two months from the date of receipt of certified copy of the order. Thereafter, since no action taken by the respondent/authority, the petitioner filed another Writ Petition being W.P. No.16445/2010, once again through Mr. Sanjiv Kumar Tiwari, learned counsel. This petition was disposed of vide order dated 15.03.2017 with the direction to the respondent/authority to decide the representation of the petitioner in light of the Implementation Instruction No.76. Thereafter, as the said order was not complied with, the petitioner filed a Contempt Petition being C.P. No. 916/2018, once again through his counsel Mr. Sanjiv Kumar Tiwari, which was disposed of by this Court vide order dated 28.03.2018 giving one more opportunity to the respondent/authority to decide the representation of the petitioner within a period of three months from the date of receipt of certified copy of the order. As that order was not complied with, the petitioner filed another Contempt Petition bearing No.2478/2018, which was also heard and dismissed by the same learned Single Judge vide order dated 06.11.2019, as the said Contempt Petition was linked with Writ Petition No.20928/2018, from which the present writ appeal arises. 8. Upon the respondent placing on record before this Court the order passed by the authority which reflected that the petitioners representation was dismissed by the authority by order dated 27/28.10.2017, the petitioner, filed an application for amendment on 14.11.2018, again through his counsel Mr. Sanjiv Kumar Tiwari.
8. Upon the respondent placing on record before this Court the order passed by the authority which reflected that the petitioners representation was dismissed by the authority by order dated 27/28.10.2017, the petitioner, filed an application for amendment on 14.11.2018, again through his counsel Mr. Sanjiv Kumar Tiwari. In paragraph 3 of the said amendment application, the petitioner disclosed his desire to amend his petition in order to challenge the order dated 27/28.10.2017 by which his representation was dismissed by the authority concerned, but was never challenged in the Writ Petition. Having gone through the said application for amendment, this Court finds that the petitioner has stated in paragraph 3 that the omission to challenge the order dated 27/28.10.2017 was on account of a bonafide mistake. There is no explanation by the petitioner as to how or in what manner the said order eluded his notice. It is also clear from the said amendment application that the order dated 27/28.10.2017 was known to the petitioner as nowhere in the application for amendment, has the petitioner ever stated that the said order was never served upon him. 9. Under the circumstance, the sequence of events that has been stated by us hereinabove, clearly goes to show the dishonesty on the part of the petitioner/appellant was to such an extent, that he even concealed the necessary and vital information from his learned counsel Mr. Sanjiv Kumar Tiwari, who represented him in not less than five separate proceedings before this Court. 10. Mr. K.C. Ghildiyal, learned counsel appearing for the appellant herein has placed before this Court the judgment of the Supreme Court in Arunima Baruah Vs. Union of India and others , reported in (2007) 6 SCC 120 . On the basis of the said judgment, learned counsel for the appellant submitted that mere suppression of a fact ought not to result in the dismissal of the petition, if the fact suppressed was not material. The facts in that case were that the petitioner before the High Court who filed the Writ Petition, had also filed a Civil Suit before the trial Court, that was pending. However, before the Writ Petition came up on Board for hearing, the petitioner in that case had moved an application for withdrawal of the Civil Suit. The said application could not be heard expeditiously on account of the Lawyers strike that had intervened.
However, before the Writ Petition came up on Board for hearing, the petitioner in that case had moved an application for withdrawal of the Civil Suit. The said application could not be heard expeditiously on account of the Lawyers strike that had intervened. Subsequently, the High Court had issued notice in the Writ Petition and thereafter, the case was listed before the trial Court for consideration of the application for withdrawal of the Civil Suit filed by the petitioner. The said application was allowed and the Civil Suit was permitted to be withdrawn. However, the High Court dismissed the Writ Petition as it felt that the factum of having filed a Civil Suit ought to have been mentioned in the Writ Petition even though, the said Civil Suit was subsequently withdrawn. It was in these facts circumstances that the Supreme Court held that where the suppression was incidental and not of a material fact, which would effect the outcome of the Writ Petition, the same ought to be condoned. The learned Single Judge has dealt with the said judgment elaborately in paragraph 8 on page 8 of the order. 11. Under the circumstance, the judgment relied upon by the learned counsel for the appellant is clearly distinguishable and has been so distinguished by the learned Single Judge with whose discussion we agree. The appellant has consistently shown his dishonesty starting from his conduct before the respondent/ authority which by its order dated 27/28.10.2017 clearly observed how the petitioner had concealed his certificates relating to his educational qualification at the time of applying for the job with the respondent, as the said job was reserved for illiterate persons and the production of educational certificates by the appellant before the authority, which bore his actual date of birth, may have resulted in the appellant not getting the job at all. Thereafter, the petitioners conduct in concealing this material fact relating to the order dated 27/28.10.2017 from his learned counsel Mr. Sanjiv Kumar Tiwari, who has appeared consistently for the appellant/ petitioner and has filed five different cases in all related to the correction of date of birth of the appellant/petitioner in his service record reveals that the appellant/petitioner is some-one who has no qualms about misleading his own counsel which has lead to the concealment of the aforementioned order by which his representation was dismissed by the respondent/authority.
The learned Single Judge has rightly held that concealment of the appellant/petitioner is not of an incidental fact or collateral fact, but of a material fact on account of which the learned Single Judge had granted the interim relief to the appellant/petitioner vide order dated 19.9.2018, by which it was directed that the respondents shall not retire the petitioner/appellant till the next date of hearing. It would be setting a bad precedent if someone like the appellant/ petitioner is rewarded with relief despite his consistent dishonesty. It would also not serve the ends of justice if this appeal is simply dismissed without deterrent cost, least it would encourage others, that stating falsehood before this Court or before any other Court or Tribunal comes without any attendant risk of monetary loss. Since the appellant/petitioner has not approached this Court with clean hands, therefore, no relief or leniency can be granted to him. 12. In view of preceding analysis, the instant Writ Appeal fails and is hereby dismissed with a cost of Rs.20,000/- (Rs. Twenty Thousand) which the appellant shall deposit with the State Legal Aid Services Authority within a period of one week from the date of this order. The State Legal Aid Services Authority is requested to transfer the said amount into the account of Artificial Limb Centre at the Netaji Subhash Chandra Bose Medical College at Jabalpur.