JUDGMENT : M. K. Thakker, J. 1. This petition is filed under Article 226 and 227 of the Constitution of India challenging the judgment and order passed by the learned Presiding Officer, labour Court Mehsana dated 09.08.2024 in Recovery (C-2) Application No 4 of 2014 whereby, the claim of the present petitioner came to be rejected with regard to granting the benefit of regular pay scale from 1985 to 2007. 1.1. It is the case of the present petitioner that opetitioner was appointed as badli worker on daily wage basis on the post of driver from 11.06.1981 and has completed 240 days in each year therefore, respondent-Corporation has started to deduct the Provident Fund from his salary from 16.02.1985. Despite various representations made with regard to granting regular pay scale and the benefit of 5th Pay Commission as well as 6th Pay Commission, those representation went in vain and ultimately, the petitioner retired on attaining the age of superannuation on 30.06.2011. Immediately, thereafter, on 07.12.2011an application was made before the learned Controlling Authority for getting the benefit of gratuity which was withheld by the respondent-Corporation after his superannuation. Learned Controlling Authority, vide order dated 21.06.2012, allowed the application directing the present respondent-Corporation to pay the amount of gratuity, difference of gratuity of Rs.52,257/- at 10% interest which was complied by the present respondent by making payment of amount of gratuity along with interest. Thereafter, application was preferred under section (33-C-2) before learned Presiding Officer, learned Labour Court, Mehsana being Recovery Application No.4 of 2014 claiming certain benefits from the year 1985 to 2007 i.e the period for which he worked as badli work which came to be rejected by the learned Labour Court which is the subject matter of challenge before this Court. 2. Heard learned advocate Mr.Parekh for the petitioner and learned advocate Mr.Hardik Rawal for the respondent. 2.1. Learned advocate Mr.Parekh submits that learned Controlling Authority has considered the service of the present petitioner as a continuous service for the period of 26 years and therefore, the difference of the amount which was ordered to be paid was complied by the present respondent thereby they had accepted the order and thereafter, learned Labour Court has rejected the application under section (33-C-2) disputing the same aspect by holding that petitioner is not entitled for the benefits which are claimed considering the period as continuity of service. Learned advocate Mr.Parekh further submits that his Provident Fund was deducted from the year 1985 and during the cross-examination it is admitted by the witness of the respondent-Corporation that only on completion of 240 days Provident Fund would be deducted, however, learned Labour Court has held contrary and came to the conclusion that petitioner has not completed 180 days therefore, he is not entitled for the benefits which are claimed. Learned advocate Mr.Parekh submits that learned Labour Court has committed error in holding that there was no pre-existing right arising and same was recognized by the Corporation by ignoring the fact that learned Controlling Authority has already held in favour of the present petitioner by counting total period of service as continuity of service and therefore, learned Labour Court has committed error in rejecting the claim of present petitioner. Learned advocate Mr.Parekh submits that as per Clause 20 of the settlement he would be entitled for all the benefits which are claimed on completion of 180 days however learned labour Court without referring the terms of the settlement has dismissed to the application and therefore, same is required to be interfered with and the impugned order is required to be set aside. 2.2. Per Contra learned advocate Mr.Hardik Rawal appearing for the respondent-Corporation has submitted that previously dispute was raised before the learned Labour Court by filing reference IT No. 126 of 2006 wherein, in the schedule it is stated that whether the petitioner is entitled for the benefit of times scale on completion of 180 days from the date of his appointment i.e year 1981. Learned advocate Mr.Hardik Rawal submits that reference came to be rejected vide judgment and award dated 18.04.2012 and by suppressing the above aspect before the Labour Court as well as before this Court, the claim was made for the same benefit which are denied by the learned Labour Court. Learned advocate Mr.Hardik Rawal submits that as per the terms of the settlement which was arrived between the parties on 21.12.1989 and as per the clause 20 of the set settlement daily wager shall be considered for being taken on regular time scale after completion of 180 days as daily wager, keeping in view the availability of sanction vacant post on the respective cadre. Learned advocate Mr.Hardik Rawal submits that said consideration would be on the basis of inter-se seniority of such daily wager and only on completion of these three fold stipulation he would be entitled for the benefit of time scale. Learned advocate Mr.Hardik Rawal further submits that after considering all the aspects the claim of the present petitioner came to be rejected way back in the year 2012 and though award remained unchallenged and attained finality by suppressing the above material facts the present petitioner has filed application under section (33-C-2) as if the dispute is adjudicated in his favuor and recognized by the respondent-Corporation. 2.3. Learned advocate Mr.Hardik Rawal submits that in the cross-examination it was specifically admitted by the petitioner-workman that he was appointed on ad-hoc basis and was paid Rs.13.92/- as daily wages. He further admits that on the post of driver he was working as a badli worker and was paid wages on the basis of his work which was carried out. It is further admitted that he had not completed 180 days in any of the year and he pleaded ignorance with regard to the previous dispute which was rejected by the learned Labour Court. Learned advocate Mr.Hardik Rawal submits that as there was no pre-existing right accrued in favour of present petitioner therefore, learned Labour Court has passed an order after assigning detailed reasons rejecting the application filed under section (33-C-2) of the I.D.Act and therefore, no interference is required and present petition requires to be rejected with heavy cost as material facts were suppressed by the present petitioner before this Court as well as before learned Labour Court. 3. Considering the submission made by the learned advocates for the respective parties and on perusing the reasons assigned by the learned Labour Court while rejecting the applications under section (33-C-2) it is undisputed fact that present petitioner, as per his appointment order, was serving as a badli worker driver from the year 1981. It is also not in dispute that from the year 2007 onwards he was granted pay scale and on attaining the age of superannuation his service period of 17 years was considered as continuity of service and was paid gratuity as well as all terminal benefits. It is also not in dispute that from the year 2007 onwards he was granted pay scale and on attaining the age of superannuation his service period of 17 years was considered as continuity of service and was paid gratuity as well as all terminal benefits. It is also not in dispute that pursuant to the order passed by the learned Controlling Authority he was given the benefit of gratuity and difference of pay after considering the service of 26 years as continuity and he was paid the amount of Rs.56,257/- along with 10% interest as per the award passed by the learned Controlling Authority. The application under section (33-C-2) which was filed before the learned Labour Court, if perused then, it appears that it was claimed by the present petitioner that he completed 240 days from 1982 to 1983 and 1984, therefore it is claimed that from the year 1985 onwards his Provident Fund was deducted from his salary however, petitioner considered as a regular employee from the year 2007 onwards. It was claimed by the present petitioner that as the Provident Fund was deducted from 16.02.1985 he is required to be considered as a regular employee and difference of amount i.e. from 16.02.1985 to 21.09.2017 is required to be paid. 3.1. On perusing the application it further transpires that with regard to the rejection of the claim for the same aspect no disclosure was made before the learned Labour Court neither has stated with regard to the previous award which was passed against the present petitioner. It was claimed as if there is a pre-existing right in his favour and therefore, he claimed different benefits in all of Rs.11,44,508/-. The description of his benefits which has been claimed is stated hereinbelow: Sr. No. Description Amount 1 Difference of Basic 3,83,256/- 2 Dearness Allowance 3,52,242/- 3 H.R.A 43,594/- 4 Washing Allowance 3,768/- 5 Amt as per 5th Pay Commission 72,000/- 6 Weekly leave pay 1,39,046/- 7 Earned leave pay 1,24,554/- 8 Holiday pay 26,048/- Total 11,44,508/- 3.2. On appearance of the respondent it was pointed out before the learned Labour Court that there is no preexisting right in fact claim which was made was rejected by the learned Labour Court for the same purpose and on suppressing material aspect the application was filed under section (33-C-2) of the I.D.Act. On appearance of the respondent it was pointed out before the learned Labour Court that there is no preexisting right in fact claim which was made was rejected by the learned Labour Court for the same purpose and on suppressing material aspect the application was filed under section (33-C-2) of the I.D.Act. During the crossexamination is it was admitted by the present petitioner that he never completed 180 days in any of the year and with regard to the previous reference being Reference IT No.126 of 2006 he is stated to have been filed however, ultimate outcome was plead ignorance. On perusing the award passed by the learned Labour Court in above Reference IT No.126 of 2016 dated 18.04.2012 it transpires that learned labour Court has held that stage was closed because of the absence of both the parties and in absence of any evidence, the reference came to be rejected. The above award remained unchallenged and has attained finally however, the petitioner did not bother to disclose the same aspect either before the learned Labour Court and before this Court while filing the petition. 3.3. In the opinion of this Court learned Labour Court has rightly held that there is no pre-existing right to grant certain benefits which is claim and in absence of the same, application under section (33-C-2) is not maintainable. This Court did not find any substance in the merits of the petition and therefore, badli workers are required to render the service only when job is available for them and they are working as ‘spare men’ and therefore, the petition is required to be dismissed at the threshold. 3.4. So far as the suppression of the material aspect is concerned, on perusing the application before the labour court as well as the contention made in the present petition the petitioner has not disclosed the fact with regard to the rejection of the claim by the learned Labour Court by passing the award dated 18.04.2012. 4. At this stage this Court would like to refer the decision rendered by the Apex Court in the case of K.D.Sharma Vs Steel Authority of India Ltd & Ors. reported in (2008) 12 SCC 481 wherein, it is held as under: 26.It is well settled that "fraud avoids all judicial acts, ecclesiastical or temporal"proclaimed Chief Justice Edward Coke of England before about three centuries. reported in (2008) 12 SCC 481 wherein, it is held as under: 26.It is well settled that "fraud avoids all judicial acts, ecclesiastical or temporal"proclaimed Chief Justice Edward Coke of England before about three centuries. Reference was made by the counsel to a leading decision of this Court in S.P. Chengalvaraya Naidu (Dead) by Lrs. V. Jagannath (Dead) by Lrs. & Ors., (1994) 1 SCC 1 wherein quoting the above observations, this Court held that a judgment/decree obtained by fraud has to be treated as a nullity by every Court. 27.Reference was also made to a recent decision of this Court in A.V. Papayya Sastry & Ors. V. Govt. of A.P. Considering English and Indian cases, one of us (C.K. Thakker, J.) stated: “22."It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye oflaw. Such a judgment, decree or order --by the first Court or by the final Court-- has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings". The Court defined fraud as an act of deliberate deception with the design of securing something by taking unfair advantage of another. In fraud one gains at the loss and cost of another. Even the most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. 34.The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution 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. 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. 35.The underlying object has been succinctly stated by Scrutton, L.J., in the leading case of R. v. Kensington Income Tax Commissioners in the following words: "It has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts- it says facts, not law. He must not misstate the law if he can help it; the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it the Court will set aside any action which it has taken on the faith of the imperfect statement". 36. A prerogative remedy is not a matter of course. While exercising extraordinary power a Writ Court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the Court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the Court, the Court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating "We will not listen to your application because of what you have done". The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. 39.If the primary object as highlighted in Kensington Income Tax Commissioners 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. 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 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.” 5. In view of the above this Court is of the opinion that present litigation is a dishonest litigation and requires to be dismissed with cost of Rs.20,000/- for not disclosing the clear facts before this Court as well as the learned Labour Court. 6. Resultantly, this petition is dismissed with cost of Rs.20,000/- which shall be deposited by petitioner before the learned Labour Court within a period of two weeks from the date of receipt of this order. On depositing, the same shall be disbursed in the favour of the respondent- Corporation.