Orissa High Court
Afr vs Suranjita Devi & Others ......... ... on 25 February, 2021
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 8938 OF 2010
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
----------
AFR
Managing Committee,
Delhi Public School,
Damanjodi, Koraput ......... Petitioner
-versus-
Suranjita Devi & others ......... Opp.Parties
For petitioner : M/s. (Mrs.) Pami Rath, and
J. Mohanty, Advocates.
For opp.parties : Mr. B.S. Tripathy, M.K. Rath and
J. Pati, Advocates
[O.P. No.1]
Mr. B. Prusty,
Standing Counsel (S&ME)
[O.P. No.2)
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of Hearing: 18.02.2021 :: Date of Judgment: 25.02.2021
DR. B.R.SARANGI, J. The Managing Committee of Delhi Public
School, Damanjodi, Koraput, represented through its
2
Principal-cum- Secretary, has filed this writ petition seeking to
quash the judgment dated 16.04.2010 passed by the Director,
Secondary Education Orissa in Appeal No. 9 of 2008, which
was communicated to the opposite party no.1 vide memo
dated 21.04.2010 in Annexure-9, whereby termination of
opposite party no.1 has been held to be not valid and direction
has been issued to the petitioner to take opposite party no.1
back into service, while granting liberty to the petitioner to
proceed against opposite party no.1 as per rules.
2. The factual matrix of the case, in hand, is that
the Delhi Public School is a private institution, registered
under the Societies Registration Act, 1860 and imparting
education to the students having been established in different
parts of the Country.
2.1 The petitioner appointed opposite party no.1 as
Yoga/PET teacher pursuant to order dated 30.06.2001.
Accordingly, she joined in the School on the very same day.
The appointment of opposite party no.1 was subject to
condition that her service can be terminated at any time by the
3
School without any prior notice. Under the terms and
conditions governing the appointment, it was clearly stipulated
that opposite party no.1 can be terminated from service by
notice of three months or notice pay in lieu thereof. Further,
after completion of probation period, the service of opposite
party no.1 was confirmed, but she resorted to gross
indiscipline and insubordination and did not care to follow the
rules and regulations of the School. More particularly, she
avoided invigilation duty, refused to remain present for
preparation of Annual Sports Day, remained unauthorizedly
absent from 26.06.2004 and failed to submit any reply to show
cause notice dated 16.09.2005 and left the station
unauthorisedly on 19.09.2005. She did not respond to
telegrams and letters issued, she refused to escort NCC cadets
to Puri vide letter dated 21.10.2003 and also to occupy the
allotted quarters in her favour, etc. In spite of repeated notice
being given to her to attend the school, she did not turn up.
Consequentially, her service was terminated in the interest of
the institution vide order dated 16.11.2005.
4
2.2 On 12.12.2002, opposite party no.1 intimated
the School that she had filed an appeal before the Director of
Secondary Education, Orissa, Bhubaneswar against such
termination of service, though such letter had never been
communicated to the petitioner and more so the appeal so
alleged to have been filed in 2005 had never been transmitted
to the petitioner from the Directorate and the copy of the
appeal memo transmitted did not indicate any number of the
appeal. The opposite party no.1 in 2007 again handed over the
copy of the appeal memo, which was said to have been filed
before the Regional Joint Director, Secondary Education,
Orissa, Berhampur, in the School by hand, which also did not
contain the appeal number. But from the office of Regional
Joint Director, Berhampur, intimation was received by the
petitioner on 21.10.2008, which showed that the Appeal Case
No. 99 of 2007, which was filed by opposite party no.1, was
pending.
2.3 When the matter was stood thus, the opposite
party no.1 filed W.P.(C) No. 5710 of 2006, but the same was
5
never taken up till 25.02.2008. However, the said writ petition
was disposed of vide order dated 25.02.2008 permitting the
opposite party no.1 to withdraw the writ petition to enable her
to file appeal before the Director, Secondary Education within
a period of two weeks with the direction that if such appeal is
filed within the time specified, the same shall be considered in
its own merit without being turn down on the ground of
limitation and such appeal be disposed of within a period of
two months from the date of its filing. In the said writ petition,
no communication was made to the petitioner and the order
dated 25.02.2008 was passed suppressing the fact that the
opposite party no.1 had preferred appeal to the Director,
Secondary Education, Bhubaneswar in 2005 and also
preferred appeal before the Regional Joint Director, Secondary
Education, Berhampur in the year 2007, which amounts to
playing fraud on the authorities as well as the Court.
2.4 In the meantime, the opposite party no.1 during
continuance of her employment in the school, without
informing the authority, took admission in the Government
6
College of Physical Education, Bhubaneswar and prosecuted
her studies during 2005-06 and 2006-07 and passed the
examination from Utkal University with roll no. 1534UT 05008
as a regular student, for which she did not attend the school
and her duties and remained unauthorized absent and,
thereby, there was dereliction in duty, apart from other
irregularities. After the order was passed on 25.02.2008 in
W.P.(C) No. 5710 of 2006, the opposite party no.1 filed an
appeal before the Director, Secondary Education, Orissa,
which was registered as Appeal No. 9 of 2008, wherein the
opposite party no.1 had also not disclosed the earlier appeals
which were preferred before the Director in the year 2005 and
Regional Joint Director in the year 2007 and the opposite
party no.1 did not press the appeal before the Regional Joint
Director which she had already filed and allowed the same to
be dismissed for default.
2.5 In Appeal No.9 of 2008 on being noticed, the
petitioner appeared and brought to the notice of the Director
with regard to different aspects including the above mentioned
7
facts and raised an objection that he has no jurisdiction to
entertain such appeal, but the Director without considering
the issues relating to the suppression of material facts and
conduct of the opposite party no.1 in resorting to playing fraud
on the Court as well as the authorities in proper perspective,
and without deciding the question of jurisdiction of the
Director in entertaining the appeal, passed the order
impugned in Annexure-9 dated 16.04.2010 holding that the
termination of the opposite party no.1 is not valid and thereby
directed the petitioner to take back her into service, but
granted liberty to the petitioner to proceed against opposite
party no.1 as per rules. Hence this application.
3. Mrs. P. Rath, learned counsel appearing for the
petitioner contended that opposite party no.1, having
abandoned the service voluntarily, is not entitled to get any
relief and non-consideration of the same by the Director,
Secondary Education, Orissa in his impugned order dated
16.04.2010 cannot sustain in the eye of law. It is further
contended that fraud has been played on the petitioner, State
8
authorities as well as this Court in suppressing the material
facts. Thereby, the order so passed by the Director, Secondary
Education, Orissa cannot sustain being vitiated which goes to
the very root of the matter. Apart from the same, it is further
contended that opposite party no.1 has not acted as a
disciplined employee of the institution, rather her conduct
which is apparent on the face of the record would go to show
that she has not carried out the direction of the authorities.
Thereby, the entire conduct of opposite party no.1 suffers from
insubordination and there is dereliction in duty for remaining
absent from the institution without prior permission and,
more so, she prosecuted her studies as a regular candidate
without getting prior permission of the authority, namely, the
petitioner herein. Thereby, equity cannot stand in her favour
so as to get relief as directed by the Director. More
particularly, when this fact was placed before the Director,
Secondary Education, Orissa, he did not take note of the same
and passed the order impugned in Annexure-9 dated
16.04.2010 directing the petitioner to take back opposite party
no.1 into service, while granting liberty to the petitioner to
9
proceed against opposite party no.1 as per rules, holding
further that the termination of opposite party no.1 from service
was not valid, that itself is an outcome of non-application of
mind. Therefore, the petitioner seeks quashing of the same.
It is further contended that if there is voluntarily
abandonment from service, in that case there is no
requirement of compliance of principle of natural justice. More
so, the order impugned has not been passed with reasons.
Specifically, by filing a false affidavit if the relief has been
claimed, that cannot sustain in the eye of law. As such, the
pleadings of the petitioner have not been denied in the counter
affidavit. Thereby, the facts having been admitted, the order so
passed in Annexure-9 dated 16.04.2010, which has been
communicated on 21.04.2010, cannot sustain in the eye of law
and is liable to be set aside.
In support of her contentions, learned counsel
for the petitioner has relied upon Vijay S. Sathaye v. Indian
Airlines Limited, (2013) 10 SCC 253; B.A. Linga Reddy v.
Karnataka State Transport Authority, (2015) 4 SCC 515;
10
M/s. Essel Mining & Industries Ltd. v. State of Odisha, AIR
2017 Orissa 74; K.D. Sharma v. Steel Authority of India
Limited, (2008) 12 SCC 481 and Bharat Singh v. State of
Haryana, AIR 1988 SC 2181.
4. Mr. B. Prusty, learned Standing Counsel for
School and Mass Education Department contended that the
Director, Secondary Education, Orissa has jurisdiction to hear
the appeal filed by opposite party no.1 against the order of her
termination issued by the Managing Committee, in view of
Clause-2(iii) of Resolution No.30720-VIISME-M-17/96-SME
dated 23.09.1996 issued by Government of Orissa,
Department of School and Mass Education. At the time of
giving appointment to opposite party no.1, condition was
imposed that the service of the appointee may be terminated at
any point of time without any prior notice. But, at the time of
termination, due procedure must have been followed and as
the same was not followed, the termination of opposite party
no.1 is illegal. Thereby in appeal, the Director, Secondary
Education, Orissa passed the order impugned dated
11
16.04.2010, which is well justified and does not call for any
interference by this Court.
5. Mr. B.S. Tripathy, learned counsel appearing
for opposite party no.1, referring to impugned judgment and
order dated 16.04.2010, communicated on 21.04.2010 under
Annexure-9, contended that the grounds which are urged
before this Court that non-consideration of material facts is
absolutely bereft of merits and he has referred to paragraphs-3
and 4 of the order impugned, which speaks about the fact that
the petitioner in its note of comments dated 31.07.2009
brought various act of misconduct against opposite party no.1
like avoiding of the duty of invigilation, refusal to remain
present for annual sports day, remaining un-authorised
absent from the school from 26.06.2004, failure to submit
show cause replies to the notice dated 16.09.2005 and leaving
the headquarters from 19.09.2005, refusal to escort NCC
cadets to Puri on 21.10.2003 and further the Principal stated
that opposite party no.1 suppressed the fact of dismissal of
Appeal No.99 of 2007 in the forum of the Regional Joint
12
Director, Berhampur and further it has been stated that
opposite party no.1 had been admitted for M.P.Ed. course on
15.09.2005 and prosecuted her study in Government College
of Physical Education, Bhubaneswar as regular student during
2005-06 and 2006-07 and passed the examination in 1st
division with Utkal University Roll No.15304 UT 05008, as
reported by the Principal of Government College & Physical
Education, Bhubaneswar vide letter No.489 dated 07.05.2009.
Thereby, it is contended that these facts have been taken into
consideration by the Director, Secondary Education, Orissa
while passing the order impugned dated 16.04.2010 in
Annexure-9. Therefore, no illegality or irregularity has been
committed by the Director, Secondary Education, Odisha
directing the petitioner to take back opposite party no.1 into
service. Furthermore, it is contended that the petitioner has
imposed major penalty of terminating the services of opposite
party no.1 without drawal of major penalty proceedings in
order to give opportunity to the opposite party no.1 to defend
the misconducts reported by the School authorities, thereby
the order passed by the Director, Secondary Education, Orissa
13
is justified and, therefore, this Court should not interfere with
the same.
6. This Court heard Mrs. P. Rath, learned counsel
appearing for the petitioner, Mr. B. Prusty, learned Standing
Counsel for School and Mass Education Department and Mr.
B.S. Tripathy, learned counsel for opposite party no.1 by
virtual/physical mode. Pleadings have been exchanged
between the parties and with their consent the matter is being
disposed of finally at the stage of admission.
7. In view of the facts narrated above and the
arguments advanced by the learned counsel appearing on
behalf of respective parties, the following three issues emerge
for consideration:-
(1) Whether the Director, Secondary Education,
Orissa has got jurisdiction to entertain the
appeal preferred by opposite party no.1;
(2) Whether there was abandonment of service by
the opposite party no.1 and in such event
whether any procedure is required to be
14
followed by the petitioner for her termination;
and
(3) Whether any fraud has been played on both
the State authorities as well as this Court by
opposite party no.1.
8. Issue No.(1)
Delhi Public School is a private educational
institution imparting teaching in English medium in the State.
For establishment of such institution and to regulate the
service condition of employees working thereunder,
Government of Odisha, Department of School and Mass
Education passed resolution dated 23.09.1996 which has
taken into consideration the observation made by this Court in
OJC No. 2951 of 1993 that sub-section (5) of Section 6 of
Orissa Education Act provides that while according recognition
to a private educational institution, the prescribed authority
shall have regard to matters like provision for suitable and
adequate accommodation, location of the institution, its
sanitary and healthy surroundings, appointment of qualified
15
teachers, provision for equipments and teaching materials and
adequate financial support for the continuous and efficient
maintenance of the institution. It has thus become imperative
to prescribe certain guidelines to be followed before according
N.O.C./Recognition to such institution and to withdraw such
N.O.C/Recognition in the event of violation of any of the
instructions issued in the resolution. Any
organization/Individual seeking "No Objection Certificates"
from the State Government to open any unaided school to be
affiliated to the ICSE/CBSE shall be required to fulfill the
terms and conditions and satisfy the requirements prescribed
in the resolution.
8.1 Clause-2 of the resolution dated 23.09.1996,
which deals with Recruitment and Service Conditions of the
staff, being relevant is extracted hereunder:
"(i) Each school either affiliated or to be affiliated
with the CBSE/ICSE shall frame Rules governing he
recruitment and conditions of service of its employees in
conformity with the Rules prescribed under the Orissa
Education Act, 1969
(ii) Service contract will be entered with each employee
and the management of the School.
16
(iii) The appointing authority shall be competent to
initiate any disciplinary action against any of the
employees of the institution after following fair
procedure. Appeal against such orders shall, however,
lie with the Director, Elementary Education for the
institution imparting Education up to Standard VII and
with the Director, Secondary Education for the
institution imparting Education from Standard VIII and
above. Where the institution imparts education from
Standard I to X or XII, the Director, Secondary Education
shall be the Appellate authority. The Government will be
competent to review the orders passed by the appointing
authority/disciplinary authority and the appellate
authorities. The qualifications of Head of the institution
and other teaching staff shall be the same as prescribed
by the CBSE/ICSE."
Sub-Clause (iii) of Clause-2, as mentioned above, reveals that
the appointing authority is competent to initiate any
disciplinary action against any of the employees of the
institution after following fair procedure. Appeal against such
orders shall, however, lie with the Director, Elementary
Education for the institution imparting Education up to
Standard VII and with the Director, Secondary Education for
the institution imparting Education from Standard VIII and
above. Thereby, the Director Secondary Education, Orissa has
got competency to decide the appeal preferred by any of the
staff of the institution, if any action is taken by the appointing
authority. In view of clear expression made in the provisions
17
contained in Clause-2(iii) of the Resolution dated 23.09.1996
annexed as Annexure-A/2 to the counter affidavit filed by
opposite party no.2, there is no iota of doubt that the Director,
Secondary Education, Orissa has jurisdiction to entertain the
appeal rather it is made clear that the Director is competent to
entertain the appeal against the orders passed by the
disciplinary authority and decide the same in accordance with
law. Therefore, the issue no.(1) is answered in affirmative and
against the petitioner.
9. ISSUE NO.(2)
Opposite party no.1 while working as Yoga
Teacher-cum-PET was assigned to work as Care Taker Officer
of N.C.C. On 09.09.2020, she herself refused to do the duties
relating to N.C.C. and opted to be relieved of as Care Taker
Officer of N.C.C., which clearly amounts to insubordination.
She had also refused to proceed to Puri for escorting the
N.C.C. cadets, vide letter dated 21.10.2003 in Annexure-10 to
the rejoinder affidavit filed by the petitioner. Further, it
appears from Annexure-12 dated 26.06.2004, the
18
communication made to opposite party no.1 by the petitioner,
that she had refused to do the duties relating to sports day as
she was appointed as Yoga Teacher-cum-PET, when it was her
responsibility to discharge the duties relating to sports. From
the selfsame Annexure-12, it is further revealed that a
complaint was received against opposite party no.1 that she
was teaching Odissi dance to the children on payment in the
quarter allotted to her by the School, which was in violation of
Clauses-4 and 5 of the terms and conditions of appointment,
which read as under:
"Clause-4:As a teacher/Administrative Staff, you
shall be the whole time employee of the Institution
and shall not engage yourself in any work similar
in nature to that of the Institution and/or in which
you may for the time being be engaged by the
Institution and/or engage yourself anywhere in
any work, profession or employment either
honorarily or otherwise during the period of your
employment with us.
Clause-5:You shall devote your whole time to the
duties assigned to you from time to time and shall
not undertake any tuition work/extra work without
the written permission of the Principal."
Thereby, she was requested to report for evening games latest
by 4.30 p.m. on 26.06.2004. In compliance of such letter
dated 26.06.2004, the opposite party no.1 did not appear.
19
Thus, it is evident that opposite party no.1, apart from refusal
to do her duty, has also violated Clauses-4 and 5 of the
appointment letter. The opposite party no.1 for negligence in
her duty was issued with warning vide Annexure-16 dated
29.01.2005, but the same was of no effect. On 29.07.2005 vide
Annexure-14, she sought permission to take admission in the
course of Master of Physical Education (M.P.Ed.) training, but
no leave was granted. As she refused to accept such letter of
refusal, consequentially the same had to be communicated by
post. On 23.08.2005 vide Annexure-17, opposite party no.1
refused to do the invigilation duty, as she had to go out of
station without leave being sanctioned in her favour.
Consequentially, for remaining absent from duty on
15.09.2005 without informing the authority, she was asked for
explanation within 24 hours vide letter dated 16.09.2005
under Annexure-3 to the writ petition. Accordingly, she sought
seven days time for giving her explanation, which was rejected
vide letter dated 17.09.2005.
20
9.1 Furthermore, opposite party no.1 was allotted a
quarter, but vide Annexure-13 she expressed her inability to
take occupation of the same on the pretext of lower size (A-
Type) compared to the type of quarter to which she was
entitled to (B-Type). On 19.09.2005, she left the premises and
was not available in the station, but, vide letter dated
20.09.2005, she wanted leave which was received by the
School on 26.09.2005. On 28.09.2005, a letter was issued to
opposite party no.1 pointing out her lapses and for immediate
occupation of the quarter given to her thus in short for
resumption of duties, as the E.L. which was prayed for 15
days, i.e., from 19.05.2005 to 04.10.2005 was refused, for 24th
and 25th August 2005 she remained on leave without sanction
and, thereafter, she remained absent from duties w.e.f.
19.09.2005. Consequentially, for remaining unauthorized
absence from the headquarters, she was put under
suspension on 01.10.2005. The letter dated 10.10.2005 issued
to opposite party no.1 under Annexure-3 series clearly
indicates that there was gross insubordination by opposite
party no.1 and as such, she had acted in gross dereliction of
21
the rules and regulations of the institution. Thus, remaining
absent from duty w.e.f. 19.09.2005 without any approval of
the authority amounts to abandonment of service. If there is
abandonment of service, in that case there is no requirement
of compliance of principles of natural justice.
10. In Vijay S. Sathaye (supra) (supra), the apex
Court in paragraphs-13, 14, 15 and 16 of the judgment held
as follows:
"13. In Jeewanlal (1929) Ltd. v. Workmen [AIR 1961 SC
1567] this Court held as under: (AIR p. 1570, para 6)
"6. ... there would be the class of cases where
long unauthorised absence may reasonably give rise
to an inference that such service is intended to be
abandoned by the employee."
(See also Shahoodul Haque v. Registrar, Coop.
Societies [(1975) 3 SCC 108 : 1974 SCC (L&S) 498 : AIR
1974 SC 1896] .)
14. For the purpose of termination, there has to be
positive action on the part of the employer while
abandonment of service is a consequence of unilateral
action on behalf of the employee and the employer has
no role in it. Such an act cannot be termed as
"retrenchment" from service. (See State of
Haryana v. Om Parkash [(1998) 8 SCC 733 : 1999 SCC
(L&S) 262] .)
15. In Buckingham and Carnatic Co.
Ltd. v. Venkatiah [AIR 1964 SC 1272] , while dealing
with a similar case, this Court observed: (AIR p. 1275,
para 5)
"5. ... Abandonment or relinquishment of service
is always a question of intention, and, normally,
22
such an intention cannot be attributed to an
employee without adequate evidence in that behalf."
A similar view has been reiterated in G.T.
Lad v. Chemical and Fibres of India Ltd. [(1979) 1 SCC
590 : 1979 SCC (L&S) 76 : AIR 1979 SC 582]
16. In Syndicate Bank v. Staff Assn. [(2000) 5 SCC
65 : 2000 SCC (L&S) 601] and Aligarh Muslim
University v. Mansoor Ali Khan [(2000) 7 SCC 529 :
2002 SCC (L&S) 965 : AIR 2000 SC 2783] this Court
ruled that if a person is absent beyond the prescribed
period for which leave of any kind can be granted,
he should be treated to have resigned and ceases to be
in service. In such a case, there is no need to hold an
enquiry or to give any notice as it would amount to
useless formalities. A similar view has been reiterated
in Banaras Hindu University v. Shrikant [(2006) 11 SCC
42 : (2007) 1 SCC (L&S) 327] , Chief Engineer
(Construction) v. Keshava Rao [(2005) 11 SCC 229 :
2005 SCC (L&S) 872] and Bank of Baroda v. Anita
Nandrajog [(2009) 9 SCC 462 : (2009) 2 SCC (L&S) 689]
.
11. Applying the above principles to the present
context and on the basis of the factual discussions made
above, since opposite party no.1 remained absent without
getting prior permission and without sanction of leave, she
should be treated to be resigned or ceased to be in service. The
reason is obvious that opposite party no.1 was prosecuting her
study in Government College of Physical Education,
Bhubaneswar during the period 2005-06 and 2006-07 and the
same was also without prior knowledge of the employer,
namely, the present petitioner. Therefore, she tried to avoid
23
any type of correspondence and duty to be discharged by her
in consonance with the post held by her and acted in
dereliction to the rules and regulations applicable to her and,
as such, she has abandoned the service voluntarily. In such
case, there is no need to hold an enquiry or give any notice, as
it would amount to useless formalities. Thereby, the finding of
the Director, Secondary Education, Orissa in his impugned
order dated 16.04.2010 under Annexure-9 communicated on
21.04.2010 holding that the termination of opposite party no.1
from service is not valid cannot sustain in the eye of law. More
so, while coming to such conclusion, the Director has not
applied his mind nor has taken note of the facts which are
discussed above and, as such, no reasons have been assigned
why he has come to such a conclusion that termination is not
valid.
12. In M/s. Essel Mining & Industries Ltd.
(supra), the Division Bench of this Court in paragraphs 11, 12
and 13 held as follows:
"11. Franz Schubert said-
"Reason is nothing but analysis of belief"
24
In Black's Law Dictionary, reason has been defined as
a-
"faculty of the mind by which it distinguishes truth
from falsehood, good from evil, and which enables
the possessor to deduce inferences from facts or from
propositions."
It means the faculty of rational thought rather than
some abstract relationship between propositions and by
this faculty, it is meant the capacity to make correct
inferences from propositions, to size up facts for what
they are and what they imply, and to identify the best
means to some end, and, in general, to distinguish what
we should believe from what we merely do believe.
12. In Union of India v. Mohan Lal Capoor, AIR 1974
SC 87 it has been held that reasons are the links
between the materials on which certain conclusions are
based and the actual conclusions. They disclose how
the mind is applied to the subject-matter for a decision
whether it is purely administrative or quasi-judicial and
reveal a rational nexus between the facts considered
and conclusions reached. The reasons assure an inbuilt
support to the conclusion and decision reached.
Recording of reasons is also an assurance that the
authority concerned applied its mind to the facts on
record. It is vital for the purpose of showing a person
that he is receiving justice.
Similar view has also been taken in Uma Charan
v. State of Madhya Pradesh, AIR 1981 SC 1915.
13. Reasons being a necessary concomitant to
passing an order, the appellate authority can thus
discharge its duty in a meaningful manner either by
furnishing the same expressly or by necessary reference
to those given by the original authority."
Similarly, in B.A. Linga Reddy (supra), the apex Court in
paragraphs 18, 19, 20, 22 and 26 held as follows:
25
"18. In Siemens Engg. & Mfg. Co. of India Ltd. v. Union
of India [(1976) 2 SCC 981] , it was held: (SCC pp. 986-
87, para 6)
"6. ... It is now settled law that where an
authority makes an order in exercise of a quasi-
judicial function, it must record its reasons in support
of the order it makes. Every quasi-judicial order must
be supported by reasons. That has been laid down
by a long line of decisions of this Court ending
with N.M. Desai v. Testeels Ltd. [(1979) 3 SCC 225 :
1979 SCC (L&S) 261] But, unfortunately, the
Assistant Collector did not choose to give any reasons
in support of the order made by him confirming the
demand for differential duty. This was in plain
disregard of the requirement of law. The Collector in
revision did give some sort of reason but it was
hardly satisfactory. He did not deal in his order with
the arguments advanced by the appellants in their
representation dated 8-12-1961 which were repeated
in the subsequent representation dated 4-6-1965. It
is not suggested that the Collector should have made
an elaborate order discussing the arguments of the
appellants in the manner of a court of law. But the
order of the Collector could have been a little more
explicit and articulate so as to lend assurance that
the case of the appellants had been properly
considered by him. If courts of law are to be replaced
by administrative authorities and tribunals, as
indeed, in some kinds of cases, with the proliferation
of Administrative law, they may have to be so
replaced, it is essential that administrative
authorities and tribunals should accord fair and
proper hearing to the persons sought to be affected
by their orders and give sufficiently clear and explicit
reasons in support of the orders made by them. Then
alone administrative authorities and tribunals
exercising quasi-judicial function will be able to
justify their existence and carry credibility with the
people by inspiring confidence in the adjudicatory
process. The rule requiring reasons to be given in
support of an order is, like the principle of audi
alteram partem, a basic principle of natural justice
which must inform every quasi-judicial process and
this rule must be observed in its proper spirit and
mere pretence of compliance with it would not satisfy
the requirement of law."
26
19. This Court in Rani Lakshmi Bai Kshetriya Gramin Bank
case [Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish
Sharan Varshney, (2009) 4 SCC 240 : (2009) 1 SCC (L&S)
806] while relying upon S.N. Mukherjee v. Union of
India [(1990) 4 SCC 594 : 1990 SCC (Cri) 669 : 1991 SCC
(L&S) 242 : (1991) 16 ATC 445] has laid down thus: (Rani
Lakshmi Bai Kshetriya Gramin Bank case [Rani Lakshmi
Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney,
(2009) 4 SCC 240 : (2009) 1 SCC (L&S) 806] , SCC p. 243,
para 8)
"8. The purpose of disclosure of reasons, as held by a
Constitution Bench of this Court in S.N.
Mukherjee v. Union of India [(1990) 4 SCC 594 : 1990
SCC (Cri) 669 : 1991 SCC (L&S) 242 : (1991) 16 ATC
445] , is that people must have confidence in the judicial
or quasi-judicial authorities. Unless reasons are
disclosed, how can a person know whether the authority
has applied its mind or not? Also, giving of reasons
minimises the chances of arbitrariness. Hence, it is an
essential requirement of the rule of law that some
reasons, at least in brief, must be disclosed in a judicial
or quasi-judicial order, even if it is an order of
affirmation."
20. A Constitution Bench of this Court has laid down
in Krishna Swami v. Union of India [(1992) 4 SCC 605] that
if a statutory or public authority/functionary does not
record the reasons, its decision would be rendered
arbitrary, unfair, unjust and violating Articles 14 and 21 of
the Constitution. This Court has laid down thus: (SCC p.
637, para 47)
"47. ... Undoubtedly, in a parliamentary democracy
governed by rule of law, any action, decision or order of
any statutory/public authority/functionary must be
founded upon reasons stated in the order or staring from
the record. Reasons are the links between the material,
the foundation for their erection and the actual
conclusions. They would also demonstrate how the mind
of the maker was activated and actuated and their
rational nexus and synthesis with the facts considered
and the conclusions reached. Lest it would be arbitrary,
unfair and unjust, violating Article 14 or unfair
procedure offending Article 21. But exceptions are
envisaged keeping institutional pragmatism into play,
conscious as we are of each other's limitations."
27
xx xx xx
22. In Divl. Forest Officer v. Madhusudhan
Rao [(2008) 3 SCC 469 : (2008) 1 SCC (L&S) 788] , this
Court has laid down thus: (SCC p. 473, para 20)
"20. It is no doubt also true that an appellate or
revisional authority is not required to give detailed
reasons for agreeing and confirming an order passed by
the lower forum but, in our view, in the interests of
justice, the delinquent officer is entitled to know at least
the mind of the appellate or revisional authority in
dismissing his appeal and/or revision. It is true that no
detailed reasons are required to be given, but some brief
reasons should be indicated even in an order affirming
the views of the lower forum."
xx xx xx
26. It is apparent that there is no consideration of the
objections except mentioning the arguments of the rival
parties. Objections both factual and legal have not been
considered much less reasons assigned to overrule them.
Even in brief, reasons have not been assigned indicating
how objections are disposed of."
13. In view of the principles of law discussed above, it is
apparently clear that reason is nothing but analysis of belief
and it is a necessary concomitant to passing an order, while
the authority discharging its duty in a meaningful manner
either by furnishing the same expressly or by necessary
reference to those given by the original authority. As such, if a
statutory or public authority/functionary does not record the
reasons, its decision would be rendered arbitrary, unfair,
28
unjust and violating Articles 14 and 21 of the Constitution.
The reasons are required to be given to know the mind of the
authority, who has passed the order and in absence of the
same the order cannot sustain.
14. Applying this principle to the present context, the
Director, while passing the order impugned in Annexure-9,
having not assigned reasons, the same is arbitrary, unfair,
unjust and violative of Articles-14 and 21 of the Constitution
of India and, thereby, the same cannot sustain in the eye of
law. In view of the findings arrived at above that the opposite
party no.1 has abandoned the service and the order impugned
in Annexure-9 having been passed without assigning reasons,
the same cannot sustain in the eye of law.
In view of the facts and law, as discussed above,
Issue No.(2) is answered in favour of the petitioner.
15. Issue No.(3)
On 16.11.2005, the service of opposite party no.1
was terminated and against the said order of termination the
opposite party no.1 stated to have preferred appeal before the
29
Director, Secondary Education, Orissa, which fact was
intimated to the petitioner by her vide Annexure-5 enclosing a
copy of the appeal memo, which does not bear any number
and as such no intimation was issued to the petitioner by the
Director, Secondary Education, Orissa with regard to the said
appeal. Though the said appeal bears a stamp of the Director,
Secondary Education, Orissa, Bhubaneswar dated 25th
November, 2005, but what happened to the said appeal memo,
nothing has been placed on record nor has the same been
disclosed by the opposite party no.1 at any point of time why
the opposite party no.1 has not pursued the same. But she
had filed a writ petition bearing W.P.(C) No. 5710 of 2006,
which was not listed till 2008 and no notice was issued to the
petitioner. The opposite party no.1 filed another appeal memo
before the Regional Joint Director of Secondary Education,
Berhampur in 2007, in which there was no mentioning about
the appeal preferred before the Director on 25.11.2005 and, as
such, there was no mentioning with regard to the filing of the
W.P.(C) No. 5710 of 2006. Thereby, the authorities have been
kept in dark with regard to the filing of appeal in 2005 and
30
also the writ application being W.P.(C) No. 5710 of 2006. The
said writ petition was listed on 25.02.2008 for the first time
after lapse of two years of filing. In the meanwhile, the Appeal
Case No.99 of 2007 was filed before the Regional Joint
Director, Secondary Education, Berhampur and this fact was
not brought to the notice of this Court. More so, the petitioner
was not noticed, but subsequently the opposite party no.1
withdrew the said writ petition and took a liberty to approach
the Director, Secondary Education, Orissa, Bhubaneswar for
fresh appeal and also took liberty that the same may not be
dismissed on the ground of limitation. When fresh appeal was
filed before the Director, Secondary Education, Orissa,
Bhubaneswar, in compliance of the order dated 25.02.2008
passed by this Court in W.P.(C) No.5710 of 2006, nothing was
disclosed about the appeal preferred before the very same
Director in 2005 and the Regional Joint Director in 2007, and
thereby, the opposite party no.1 has suppressed the material
facts before the authorities while preferring appeal in 2008.
31
16. On 18.11.2008, a letter was received from
Regional Joint Director, Secondary Education, Berhampur
that the Appeal Case No. 99/2007 was filed by opposite party
no.1. The order sheet enclosed to the Appeal Case No.
99/2007 indicates that pursuant to an order of this Court
dated 25.02.2008 passed in W.P.(C) No. 5710 of 2006 the
opposite party no.1 did not appear in the pretext that she had
obtained an order from the Court to file appeal before the
Director, Secondary Education, Orissa, Bhubaneswar and this
fact was not brought to the notice of the Regional Joint
Director, Secondary Education, Berhampur that she has
preferred writ petition in 2006. In Appeal Memo No. 99 of 2007
she had concealed the fact. Consequently, the said appeal was
dismissed by the Regional Joint Director for non-appearance.
When Appeal No. 9/2008 was filed before the Director,
Secondary Education, Orissa, Bhubaneswar, this fact was also
not brought to the notice of the Director. Without disclosing
the earlier appeals preferred before the Director, Secondary
Education, Bhubaneswar in the year 2005 as well as the
Regional Joint Director, Berhampur in the year 2007, the
32
Appeal No. 9/2008 was filed and thereby, there was
suppression of material facts before the authorities as well as
this Court. Thus, a fraud has been played by opposite party
no.1, which vitiates the entire proceedings. Consequentially,
the order impugned in Annexure-9 cannot sustain in the eye
of law.
17. If it is considered from other angel, the
opposite party no.1 was prosecuting her higher studies
between the period from 2005-06 and 2006-07 without
intimating the employer, the petitioner herein, and remained
absent without sanction of leave and, thereby, for voluntarily
abandoning the service she was terminated from service.
Therefore, against the order of termination dated 01.10.2005
though she had preferred appeal before the Director,
Secondary Education, Orissa in the year 2005 and thereafter
preferred appeal before the Regional Joint Director, Secondary
Education, Berhampur in the year 2007, she did not pursue
the same. The reasons for non-pursing those matters may be
that in the event any favourable order had been passed, she
33
would not have been able to complete her course.
Furthermore, she had not disclosed the fact that she had
already preferred appeals in 2005 before the Director,
Secondary Education, Orissa and in the year 2007 before the
Regional Joint Director, Berhampur, as she knew that the writ
petition would be dismissed and she would be asked to pursue
the appeals, which are pending before the authorities
concerned. In any case, the opposite party no.1 having not
disclosed the factum of the penedency of the appeals, both
before the authorities as well as this Court she had played
fraud and thereby she is not entitled to get any relief from this
Court.
18. In Lazarus Estate Ltd. v. Beasley, (1956) 1
All ER 341 (CA), the Court observed without equivocation that
"no judgment of a Court, no order of a Minister can be allowed
to stand if it has been obtained by fraud, for fraud unravels
everything."
19. In Vimla v. Delhi Administration, AIR 1963
SC 1572, the apex Court held that the expression "fraud"
34
involves two elements, deceit and injury to the person
deceived. It is a cheating intended to get an advantage.
20. In S.P. Chengalvaraya Naidu v. Jagannath,
AIR 1994 SC 853, the apex Court held it is settled proposition
of law that where an applicant gets an order/office by making
misrepresentation or playing fraud upon the competent
Authority, such order cannot be sustained in the eyes of law.
"Fraud avoids all judicial acts ecclesiastical or temporal."
21. In United India Insurance Co. Ltd. v.
Rajendra Singh, AIR 2000 SC 1165: (2000) 3 SCC 581, the
apex Court observed that "Fraud and justice never dwell
together" (fraus et jus nunquam cohabitant) and it is a pristine
maxim which has never lost its temper over all these
centuries.
22. In Andhra Pradesh State Financial
Corporation v. GAR Re- Rolling Mills, AIR 1994 SC 2151,
the apex Court observed that a writ Court, while exercising its
equitable jurisdiction, should not act as to prevent
perpetration of a legal fraud as the courts are obliged to do
35
justice by promotion of good faith. "Equity is, also, known to
prevent the law from the crafty evasions and sub-letties
invented to evade law."
Similar view has also been taken in State of
Maharashtra v. Prabu, (1994) 2 SCC 481.
23. Applying the above principles of law to the
present context, this Court is of the considered view that the
opposite party no.1 has played fraud on the authority as well
as this Court by not disclosing the fact, thereby, the order
impugned in Annexure-9 dated 16.04.2010 communicated on
21.04.2010 cannot sustain and the same is liable to be
quashed.
24. It is made clear that opposite party no.1 had
not come to this Court with clean hands rather she had filed a
false affidavit, when she earlier approached this Court by filing
W.P.(C) No. 5710 of 2008, inasmuch as she had not disclosed
the factum in preferring appeal since 2005 before the Director,
Secondary Education, Orissa. The jurisdiction of this Court
while exercising power under Article 226 of the Constitution of
36
India is extraordinary and discretionary. Therefore, it is of
utmost necessary that the party 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 be dismissed at the
threshold without considering the merits of the claim.
25. In R. V. Kensington Income Tax Commrs.
(1917) 1 KB 486, Scruttaon, L.J., has succinctly stated 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."
26. A prerogative remedy is not a matter of course.
While exercising extraordinary power a writ court would
37
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 the larger public
interest to deter unscrupulous litigants from abusing the
process of court by deceiving it.
27. In Kensington Income Tax Commrs. [(1917)
1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA)] Viscount
Reading, C.J. observed:
"... 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. Before coming to this conclusion a careful
examination will be made of the facts as they are and
as they have been stated in the applicant's affidavit,
and everything will be heard that can be urged to
influence the view of the Court when it reads the
affidavit and knows the true facts. But if the result of
38
this examination and hearing is to leave no doubt that
the Court has been deceived, then it will refuse to hear
anything further from the applicant in a proceeding
which has only been set in motion by means of a
misleading affidavit."
28. The above principles have been accepted in our
legal system also. As per settled law, the party who invokes the
jurisdiction of the apex Court under Article 32 or of a High
Court under Article 226 of the Constitution is supposed to be
truthful, frank and open. He must disclose all material facts
without any reservation even if they are against him. He
cannot be allowed to play "hide and seek" or to "pick and
choose" the facts he likes to disclose and to suppress (keep
back) or not to disclose (conceal) other facts. The very basis of
the writ jurisdiction rests in disclosure of true and complete
(correct) facts. If material facts are suppressed or distorted, the
very functioning of writ courts and exercise would become
impossible. The petitioner must disclose all the facts having a
bearing on the relief sought without any qualification. This is
because "the court knows law but not facts".
39
29. In K.D. Sharma mentioned supra, wherein the
apex Court, taking into consideration various judgments, in
paragraphs 41 to 51 observed as follows:
"41. In State of Haryana v. Karnal Distillery Co.
Ltd. [(1977) 2 SCC 431] almost an agreed order was
passed by the Court that on expiry of the licence for
manufacturing of liquor on 6-9-1976, the distillery
would cease to manufacture liquor under the licence
issued in its favour. Then, the Company filed a petition
in the High Court for renewal of licence for manufacture
of liquor for 1976-1977, and the Court granted stay of
dispossession. In appeal, the Supreme Court set aside
the order granting stay of dispossession on the ground
that the petitioner Company in filing the petition in the
High Court had misled it and started the proceedings for
oblique and ulterior motive.
42. In Vijay Kumar Kathuria v. State of
Haryana [(1983) 3 SCC 333] it was the case of the
petitioners that the provisional admissions granted to
them were not cancelled and they were continuing their
studies as postgraduate students in Medical College on
the relevant date. On the basis of that statement, they
obtained an order of status quo. The Supreme Court
ordered inquiry and the District Judge was asked to
submit his report whether the provisional admissions
granted to the petitioners were continued till 1-10-1982
or were cancelled. The report revealed that to the
knowledge of the petitioners their provisional
admissions were cancelled long before 1-10-1982 and
thus, the petitioners had made false representation to
the Court and obtained a favourable order. Dismissing
the petition, this Court observed: (SCC p. 334, para 1)
"1. ... But for the misrepresentation this Court
would never have passed the said order. By reason
of such conduct they have disentitled themselves
from getting any relief or assistance from this Court
and the special leave petitions are liable to be
dismissed."
43. Deprecating the reprehensible conduct of the
petitioners as well as of their counsel, the Court stated:
40
(Vijay Kumar Kathuria case [(1983) 3 SCC 333] , SCC
pp. 334-35, para 3)
"3. Before parting with the case, however, we
cannot help observing that the conduct or behaviour
of the two petitioners as well as their counsel (Dr.
A.K. Kapoor who happens to be a medico-legal
consultant practising in courts) is most reprehensible
and deserves to be deprecated. The District Judge's
report in that behalf is eloquent and most revealing
as it points out how the two petitioners and their
counsel (who also gave evidence in support of the
petitioner's case before the District Judge) have
indulged in telling lies and making reckless
allegations of fabrication and manipulation of
records against the college authorities and how in
fact the boot is on their leg. It is a sad commentary
on the scruples of these three young gentlemen who
are on the threshold of their careers. In fact, at one
stage we were inclined to refer the District Judge's
report both to the Medical Council as well as the Bar
Council for appropriate action but we refrained from
doing so as the petitioners' counsel both on behalf of
his clients as well as on his own behalf tendered
unqualified apology and sought mercy from the
court. We, however, part with the case with a heavy
heart expressing our strong disapproval of their
conduct and behaviour...."
(emphasis supplied)
44. In Welcom Hotel v. State of A.P. [(1983) 4 SCC
575 : 1983 SCC (Cri) 872] certain hoteliers filed a
petition in this Court under Article 32 of the Constitution
challenging the maximum price of foodstuffs fixed by the
Government contending that it was uneconomical and
obtained ex parte stay order. The price, however, was
fixed as per the agreement between the petitioners and
the Government but the said fact was suppressed.
Describing the fact as material, the Court said: (SCC pp.
580-81, para 7)
"7. ... Petitioners who have behaved in this
manner are not entitled to any consideration at the
hands of the Court."
45. In Agricultural & Processed Food Products v. Oswal
Agro Furane [(1996) 4 SCC 297] the petitioner filed a
petition in the High Court of Punjab and Haryana which
41
was pending. Suppressing that fact, it filed another
petition in the High Court of Delhi and obtained an order
in its favour. Observing that the petitioner was guilty of
suppression of "very important fact", this Court set
aside the order of the High Court.
46. In State of Punjab v. Sarav Preet [(2002) 9 SCC
601 : 2002 SCC (L&S) 1085] A obtained relief from the
High Court on her assertion that a test in a particular
subject was not conducted by the State. In an appeal by
the State, it was stated that not only the requisite test
was conducted but the petitioner appeared in the said
test and failed. Observing that the petitioner was under
an obligation to disclose the said fact before the High
Court, this Court dismissed the petition.
47. In Union of India v. Muneesh Suneja [(2001) 3
SCC 92 : 2001 SCC (Cri) 433] the detenu challenged an
order of detention under the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act,
1974 (COFEPOSA) by filing a petition in the High Court of
Delhi which was withdrawn. Then he filed a similar
petition in the High Court of Punjab and Haryana
wherein he did not disclose the fact as to filing of the
earlier petition and withdrawal thereof and obtained
relief. In an appeal by the Union of India against the
order of the High Court, this Court observed that non-
disclosure of the fact of filing a similar petition and
withdrawal thereof was indeed fatal to the subsequent
petition.
48. A special reference may be made to a decision of
this Court in All India State Bank Officers
Federation v. Union of India [1990 Supp SCC 336 : 1991
SCC (L&S) 429 : (1991) 16 ATC 454] . In that case,
promotion policy of the Bank was challenged by the
Federation by filing a petition in this Court under Article
32 of the Constitution. It was supported by an affidavit
and the contents were affirmed by the President of the
Federation to be true to his "personal knowledge". It
was stated: (SCC p. 337, para 2)
"2. ... [T]he petitioners have not filed any other
similar writ petition in this Honourable Court or any
other High Court."
42
In the counter-affidavit filed on behalf of the Bank,
however, it was asserted that the statement was
"false". The Federation had filed a writ petition in the
High Court of Andhra Pradesh which was admitted but
interim stay was refused. Another petition was also
filed in the High Court of Karnataka. It was further
pointed out that the promotion policy was implemented
and 58 officers were promoted who were not made
parties to the petition. In the affidavit-in-rejoinder, once
again, the stand taken by the petitioner was sought to
be justified. It was stated: "The deponent had no
knowledge of the writ petition filed before the High
Court of Andhra Pradesh, hence as soon as it came to
his knowledge the same has been withdrawn.
Secondly, the petitioners even today do not know the
names of all such 58 candidates who have been
promoted/favoured." It was contended on behalf of the
Bank that even that statement was false. Not only the
petitioner Federation was aware of the names of all the
58 officers who had been promoted to the higher post,
but they had been joined as party-respondents in the
writ petition filed in the Karnataka High Court, seeking
stay of promotion of those respondents. It was,
therefore, submitted that the petitioner had not come
with clean hands and the petition should be dismissed
on that ground alone.
49. "Strongly disapproving" the explanation put forth
by the petitioner and describing the tactics adopted by
the Federation as "abuse of process of court", this Court
observed: (All India State Bank Officers Federation
case [1990 Supp SCC 336 : 1991 SCC (L&S) 429 :
(1991) 16 ATC 454] , SCC pp. 340-41, paras 9 & 11)
"9. ... There is no doubt left in our minds that the
petitioner has not only suppressed material facts in
the petition but has also tried to abuse judicial
process. ...
***
11. Apart from misstatements in the affidavits
filed before this Court, the petitioner Federation has
clearly resorted to tactics which can only be
described as abuse of the process of court. The
simultaneous filing of writ petitions in various High
Courts on the same issue though purportedly on
behalf of different associations of the officers of the
Bank, is a practice which has to be discouraged. Sri
43
Sachar and Sri Ramamurthi wished to pinpoint the
necessity and importance of petitions being filed by
different associations in order to discharge
satisfactorily their responsibilities towards their
respective members. We are not quite able to
appreciate such necessity where there is no diversity
but only a commonness of interest. All that they had
to do was to join forces and demonstrate their unity
by filing a petition in a single court. It seems the
object here in filing different petitions in different
courts was a totally different and not very laudable
one."
(emphasis supplied)
50. "Deeply grieved" by the situation and adversely
commenting on the conduct and behaviour of the
responsible officers of a premier bank of the country, the
Court observed: (All India State Bank Officers
Federation case [1990 Supp SCC 336 : 1991 SCC (L&S)
429 : (1991) 16 ATC 454] , SCC p. 342, para 12)
"12. We have set out the facts in this case at
some length and passed a detailed order because
we are deeply grieved to come across such conduct
on the part of an association, which claims to
represent high placed officers of a premier bank of
this country. One expects such officers to fight their
battles fairly and squarely and not to stoop low to
gain, what can only be, temporary victories by
keeping away material facts from the court. It is
common knowledge that, of late, statements are
being made in petitions and affidavits recklessly and
without proper verification not to speak of dishonest
and deliberate misstatements. We, therefore, take
this opportunity to record our strong and emphatic
disapproval of the conduct of the petitioners in this
case and hope that this will be a lesson to the
present petitioner as well as to other litigants and
that at least in future people will act more truthfully
and with a greater sense of responsibility."
51. Yet in another case in Vijay Syal v. State of
Punjab [(2003) 9 SCC 401 : 2003 SCC (L&S) 1112] this
Court stated: (SCC p. 420, para 24)
"24. In order to sustain and maintain the sanctity
and solemnity of the proceedings in law courts it is
necessary that parties should not make false or
44
knowingly, inaccurate statements or
misrepresentation and/or should not conceal
material facts with a design to gain some advantage
or benefit at the hands of the court, when a court is
considered as a place where truth and justice are the
solemn pursuits. If any party attempts to pollute
such a place by adopting recourse to make
misrepresentation and is concealing material facts it
does so at its risk and cost. Such party must be
ready to take the consequences that follow on
account of its own making. At times lenient or liberal
or generous treatment by courts in dealing with such
matters is either mistaken or lightly taken instead of
learning a proper lesson. Hence there is a compelling
need to take a serious view in such matters to
ensure expected purity and grace in the
administration of justice."
30. Apart from the above, it appears that the facts,
which have been pleaded in the writ petition, have not been
denied in the counter affidavit filed by the opposite party no.1.
Due to non-denial thereof, it amounts to admission in view of
the judgment of the apex Court in Bharat Singh and others
(supra).
In view of the facts and law discussed above,
Issue No.(3) is answered in favour of the petitioner.
31. In view of the foregoing discussions, even
though this Court, while answering Issue No(1), has held that
the Director, Secondary Education, Orissa, Bhubaneswar has
45
jurisdiction to entertain the appeal, but the order impugned
passed by him vide Annexure-9 dated 16.04.2010 and
communicated on 21.04.2010 cannot sustain in the eye of law,
in view of the answers given in respect of Issue Nos.(2) and (3)
and, thereby, the same is liable to be quashed and is hereby
quashed.
32. In the result, the writ petition is allowed. No
order to costs.
........................................
DR.B.R.SARANGI, J.
Orissa High Court, Cuttack The 25thFebruary, 2021/Alok/Ajaya/GDS 46