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2021 DIGILAW 322 (UTT)

ANIL KUMAR v. STATE OF UTTARAKHAND

2021-06-21

SHARAD KUMAR SHARMA

body2021
JUDGMENT Hon'ble Sharad Kumar Sharma, J. (Via Video Conferencing) The petitioner has filed this writ petition as against the Order No. 235 dated 03.06.2021, projecting as if his services had been transferred from Rudraprayad to Ukhimath. In fact, the reflection, which has been given in the pleadings of writ petition, is as if after the accident, which has chanced with the petitioner in 2017, after recovery from it, he was attached for the first time in the office of Rudraprayag by the order dated 26.05.2021, and within one month of his joining, by virtue of an order dated 03.06.2021, he has been transferred to join Ukhimath. 2. This is not the case at hand, as it has been argued by the learned counsel for the respondents, and he has drawn the attention of this Court to the impugned order itself, which refers to the main order of transfer i.e. Order No. 837 dated 03.06.2021, by virtue of which, according to Mr. Piyush Garg, the learned counsel for the respondents, about 8 employees were transferred. 3. This order is not under challenge before this Court and the impression, which was created by the petitioner, was as if it is an attachment after the accident which has chanced with the petitioner in 2017, which was made for the first time, it is rather contrary to the records itself. 4. In that view of the matter, no solace or equity can be shown to such type of litigant, who doesn't come with clean hands before the Court and deliberately comes in a case with distorted or misleading pleadings, having direct bearing over a case. 5. The aforesaid concept that a party to the proceedings, who approaches the writ Court under Article 226 of the Constitution of India, has had to place all the facts on record, which are vital for the purposes of deciding the matter or any factor or aspect, which may have an affect or bearing over the judgments, which are likely to be rendered, the law casts a mandatory duty that a litigant has to place all those aforesaid facts. Suppression of a fact or placing a fact in a manner to extract an order in their favour, has been deprecated by the various pronouncements of the High Court including the one as reported in AIR (38) 1951 Allahabad 746, Asiatic Engineering Co. Suppression of a fact or placing a fact in a manner to extract an order in their favour, has been deprecated by the various pronouncements of the High Court including the one as reported in AIR (38) 1951 Allahabad 746, Asiatic Engineering Co. v. Achhru Ram and others, rendered by Full Bench, wherein, in para 51 of the said judgment, the aforesaid principle has been laid down, which has been extracted hereunder: “51. In our opinion, the salutary principle laid; down in the cases quoted above should appropriately be applied by Courts in our country when parties seek the aid of the extraordinary powers, granted to the Court under Article 226 of the Constitution. A person obtaining an ex parte order or a rule nisi by means of a petition for exercise of the extraordinary powers under Article 226 of the Constitution must come with clean hands, must not suppress any relevant facts from the Court, must refrain from making misleading statements & from giving incorrect information to the Court. Courts, for their own protection, should insist that persons invoking these extraordinary powers should not attempt, in any manner, to misuse this valuable right by obtaining ex parte orders by suppression, misrepresentation or misstatement of facts. Applying this principle to the pre sent case, we feel that, in this case, the petitioner Company has disentitled itself to ask for a writ of prohibition by material suppressions, misrepresentations & misleading statements which have been found by us above. Two different proceedings were pending. One set of proceedings were initiated against the petitioner Company itself by the notice, dated 3-1-1950. Suppressions & misstatements about the residence of the shareholders & the directors, the places of business of the petitioner Company & about the numerical majority of the Hindu shareholders were clearly directed to give an impression to the Court that the petitioner Company could not possibly be held to be an evacuee. The allegations of personal interest & mala fides against the Deputy Custodian (Judicial) were made without any foundation whatsoever for the purpose of inducing the Court to issue a writ of prohibition on the argument that a Judicial Officer acting mala fide or having a personal interest in the dispute has no jurisdiction to deal with the proceedings before him. The allegations of personal interest & mala fides against the Deputy Custodian (Judicial) were made without any foundation whatsoever for the purpose of inducing the Court to issue a writ of prohibition on the argument that a Judicial Officer acting mala fide or having a personal interest in the dispute has no jurisdiction to deal with the proceedings before him. The second set of proceedings were against the shareholders & in these proceedings also, the Custodian contended that steps could be taken against the property of the Company because some of the shareholders had become evacuees. Misrepresentations about the residence of the share-holders were also made for the purpose of meeting this contention. Obviously this is a clear case where, on the principles enunciated by us, the petitioner Company, which actually obtained a rule nisi from a Bench of this Court, should be sent out of Court without hearing on merits. The only grounds for challenging the jurisdiction of the Custodian taken on behalf of the petitioner Company, which may be said to raise the question of patent lack of jurisdiction, are those relating to the contention that the Evacuee Property Act is itself ultra vires of the legislature as it contravenes the provisions of Arts. 14 & 19 (f) of the Constitution. These points shall be dealt with by us later." 6. In yet another judgment, which was rendered by the Full Bench of Punjab & Haryana High Court, as reported in AIR 1970 Punjab & Haryana 379, Jai Singh Rathi and others Vs. State of Haryana, wherein, almost the same principle about the impact of suppression of material fact from being brought to the knowledge of the Court having a bearing on the very decision making process and the exercise of jurisdiction by the Court has been deprecated, as it has been laid down in para 20 of the said judgment, which is extracted hereunder:- “20. It was pointed out by Mr. It was pointed out by Mr. Nambyar that in their petition the petitioners have totally suppressed their part of the conduct both on February 4 and 5, 1969, in that they persistently disobeyed and defied the Chair and their conduct was not, in the least, orderly in the House, They also suppressed the fact that after the introduction of the budget the opposition walked out and took no part in the proceedings of the House in regard to the acceptance of budget estimates, money grants and the passage of the appropriation bill He referred to this observation of Viscount Reading C. J., in Rex v. Kensington Income Tax Commissioners, (1917) 1 KB 486, at p. 495. “Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not Candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one. which should only be used in cases which bring conviction to the mind of the Court that it has been deceived." On this consideration also the petitioners are not entitled to the exercise of the discretion of this Court in their favour so far as Article 226 of the Constitution is concerned." 7. Similarly, the Hon'ble Apex Court too, in a judgment reported in 2007 AIR SCW 5350, M/s Prestige Lights Ltd. Vs. State Bank of India, has laid down the governing principles with regard to impact on the judgment or the decision making process, which has been attempted to be procured on the basis of suppression of a material fact from being brought to the knowledge of the Court, which may have a bearing on the decision. A reference may be had to paras 32, 34 and 35 of the said judgment, which are extracted hereunder:- “32. It is thus clear that though the appellant - Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. A reference may be had to paras 32, 34 and 35 of the said judgment, which are extracted hereunder:- “32. It is thus clear that though the appellant - Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter. 34. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a Writ Court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, the Court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible. 35. In the case on hand, several facts had been suppressed by the appellant-Company. Collusive action has been taken with a view to deprive the respondent- Bank from realizing legal and legitimate dues to which it was otherwise entitled. The Company had never disclosed that it had created third party's interests in the property mortgaged with the Bank. It had also shifted machinery and materials without informing the respondent-Bank prejudicially affecting the interest of the Bank. It has created tenancy or third party's right over the property mortgaged with the Bank. All these allegations are relevant when such petitioner comes before the Court and prays for discretionary and equitable relief. It had also shifted machinery and materials without informing the respondent-Bank prejudicially affecting the interest of the Bank. It has created tenancy or third party's right over the property mortgaged with the Bank. All these allegations are relevant when such petitioner comes before the Court and prays for discretionary and equitable relief. In our judgment, the submission of the respondent-Bank is well-founded that appellant is not entitled to ask for an extraordinary remedy under Article 226 of the Constitution from the High Court as also equitable remedy from this Court under Article 136 of the Constitution. A party, whose hands are soiled, cannot hold the writ of the Court. We, therefore, hold that the High Court was not in error in refusing relief to the appellant-Company." 8. Since in the present case, the record shows that after the alleged accident, which has chanced with the petitioner in 2017, the petitioner had joined back his services much earlier and the reflection given while putting a challenge to the impugned order dated 26.05.2021, as if it was a first joining after the petitioner recovered from his injuries which he has suffered due to an accident, in fact, was a distorted pleading, which was raised by the petitioner in order to extract a favourable order in his favour. Hence, these reasoning and the argument extended by the learned counsel for the petitioner cannot be accepted by this Court in light of the principles laid down by the aforesaid judgments. 9. Since it has been argued that the principal order of transfer contains the reason, that the transfer has been made on account of certain complaints, which have been received against the petitioner, he has been transferred to Ukhimath, this Court is of the view that this writ petition deserves to be dismissed, on this very ground itself that the petitioner has concealed the material fact to be brought to the knowledge of the Court. 10. The writ petition is dismissed accordingly.