Calcutta High Court (Appellete Side)
Dr. Atanu Biswas vs The State Of West Bengal And Others on 24 March, 2021
Bench: Rajesh Bindal, Aniruddha Roy
Item No.29
IN THE HIGH COURT AT CALCUTTA
(Appellate Side)
CONSTITUTIONAL WRIT JURISDICTION
WP.ST 76 of 2020
Date of decision:-24.03.2021
Dr. Atanu Biswas
...Petitioner
-versus-
The State of West Bengal and others
...Respondents
with
WPA 5935 of 2020
Dr. SK. Safikul Hasan and Ors.
...Petitioner
-versus-
The State of West Bengal and others
...Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
HON'BLE MR. JUSTICE ANIRUDDHA ROY
Present:- Md. Amjad Ali,
Mr. Shyamal Roy,Advocates
... for the petitioner
Mr. Sirsanya Bandopadhyay, Advocate
... for the respondents
ORDER
1. The present petition has been filed challenging the order dated August 24, 2020 passed by the West Bengal Administrative Tribunal, 2 WP.ST 76 of 2020 Kolkata (for short 'the Tribunal') in O.A. No.243 of 2020. The Original Application was filed praying for the following reliefs:-
"7.a) Issue a mandatory direction to quash / set aside / rescind the Notification being Memo No. DME / SPL / Corresp / 2020 / 185 dated 06.07.2020, as issued by the authority concerned and also Memo No. HFW 23099 / 66 / 2020 / M / 905 dated 08.07.2020 be set aside / quash.
b) Given a direction upon the respondents, not to cancel the admission of applicant M.D. Radiology at Command Hospital E.C. Kolkata already admitted as per first round counselling.
c) The respondents may kindly be directed to entertained the representation which has pending and passed a special order in respect of notification being Memo No. DME / SPL Corresp/2020 /185 dated 06.07.2020 and the Memo No. H.F.W. 23099 / 66 / 2020 / M / 905 dated 08.07.2020 not applicable to the petitioner, by a Special Order passed in the light of submitted representation."
2. Opining on the merits of the controversy, the Original Application filed by the petitioner was dismissed as he concealed the factum of filing of writ petition in this Court for the same relief. Cost of 5,100/- was imposed.
3. Learned counsel for the petitioner submitted that once the Tribunal did have the jurisdiction to entertain the issue there was no question of expressing opinion on the merits of the controversy with imposition of cost. The issue raised in the writ petition was pertaining to 3 WP.ST 76 of 2020 admission of the petitioner in MD course. The petitioner was not legally trained though he is a graduate in medicine. He may have been given a wrong advice as a result of which the writ petition was filed in this Court as well as the Original Application before the Tribunal. There was no intention to mislead the Court as he has not taken any benefit therefrom. He is a young doctor. In fact, the Tribunal had wrongly entertained the Original Application once, it did not have the jurisdiction. Opinion on the merits of the controversy has been expressed. The will prejudice the writ petition filed by him, which is pending in this Court.
4. On the other hand learned counsel for the respondent submitted that the matter does not end with the concealment of factum of filing of writ petition by the petitioner before this Court prior to the filing of Original Application before the Tribunal.
5. He further referred to the pleadings in CAN 1 of 2020 filed by the petitioner herein, wherein it has been specifically stated that filing of writ petition before this Court was informed to the counsel before filing the Original Application before the Tribunal. The same was filed as the writ petition in this Court was not numbered because of COVID-19 pandemic. He further submitted that there was no error in the order passed by the Tribunal whereby the Original Application filed by him was dismissed with cost of 5,100/-. In fact, considering the conduct of the petitioner cost should have been on higher side. He further referred to the pleadings in Para 11 of CAN No.1 of 2020 wherein it has been stated that after dismissal of the Original Application by the Tribunal the petitioner had filed application in the writ petition filed by him before this Court to withdraw his name therefrom.
4
WP.ST 76 of 2020
6. Heard learned Counsel for the parties and perused the paper book.
7. The case in hand is a glaring example as to how the litigants especially the educated ones, play with the Courts. They indulge in 'forum hunting', conceal material facts and try to mislead.
8. The Hon'ble the Supreme Court has time and again commented adversely on a litigant who approaches the Court with unclean hands. In Abhyudya Sanstha v. Union of India reported as (2011) 6 SCC 145, the Hon'ble the Supreme Court, while declining relief to the petitioners therein, who did not approach the Court with clean hands, opined as under:-
"16. In our view, the appellants deserve to be non suited because they have not approached the Court with clean hands. The plea of inadvertent mistake put forward by the learned senior counsel for the appellants and their submission that the Court may take lenient view and order regularisation of the admissions already made sounds attractive but does not merit acceptance. Each of the appellants consciously made a statement that it had been granted recognition by the NCTE, which necessarily implies that recognition was granted in terms of Section 14 of the Act read with Regulations 7 and 8 of the 2007 Regulations. Those managing the affairs of the appellants do not belong to the category of innocent, illiterate/uneducated persons, who are not conversant with the relevant statutory provisions and the 5 WP.ST 76 of 2020 court process. The very fact that each of the appellants had submitted application in terms of Regulation 7 and made itself available for inspection by the team constituted by WRC, Bhopal shows that they were fully aware of the fact that they can get recognition only after fulfilling the conditions specified in the Act and the Regulations and that WRC, Bhopal had not granted recognition to them. Notwithstanding this, they made bold statement that they had been granted recognition by the competent authority and thereby succeeded in persuading this Court to entertain the special leave petitions and pass interim orders. The minimum, which can be said about the appellants is that they have not approached the Court with clean hands and succeeded in polluting the stream of justice by making patently false statement. Therefore, they are not entitled to relief under Article 136 of the Constitution. This view finds support from plethora of precedents. In Hari Narain v. Badri Das reported as AIR 1963 SC 1558, G. Narayanaswamy Reddy v. Govt. of Karnataka reported as (1991) 3 SCC 261 and large number of other cases, this Court denied relief to the petitioner/appellant on the ground that he had not approached the Court with clean hands. In Hari Narain v. Badri Das (supra), the Court revoked the leave granted to the appellant and observed:"
"It is of utmost importance that in making material statements and setting forth grounds in applications for special leave made under Article 136 of the Constitution, 6 WP.ST 76 of 2020 care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. Thus, if at the hearing of the appeal the Supreme Court is satisfied that the material statements made by the appellant in his application for special leave are inaccurate and misleading, and the respondent is entitled to contend that the appellant may have obtained special leave from the Supreme Court on the strength of what he characterises as misrepresentations of facts contained in the petition for special leave, the Supreme Court may come to the conclusion that in such a case special leave granted to the appellant ought to be revoked."
9. In G. Narayanaswamy Reddy v. Govt. of Karnataka's case (supra), the Court noted that the appellant had concealed the fact that the award could not be made by the Land Acquisition Officer within the time prescribed under Section 11A of the Land Acquisition Act because of the stay order passed by the High Court and observed:-
" ......Curiously enough, there is no reference in the special leave petitions to any of the stay orders and we came to know about these orders only when the respondents appeared in response to the notice and filed their counter affidavit. In our view, the said interim orders have a direct bearing on the question 11 raised 7 WP.ST 76 of 2020 and the non-disclosure of the same certainly amounts to suppression of material facts. On this ground alone, the special leave petitions are liable to be rejected. It is well settled in law that the relief under Article 136 of the Constitution is discretionary and a petitioner who approaches this Court for such relief must come with frank and full disclosure of facts. If he fails to do so and suppresses material facts, his application is liable to be dismissed. We accordingly dismiss the special leave petitions."
10. In Dalip Singh v. State of U.P. reported as (2010) 2 SCC 114, the Hon'ble the Supreme Court noticed the progressive decline in the values of life and observed:-
" For many centuries Indian society cherished two basic values of life i.e. "satya" (truth) and "ahinsa"
(non- violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice- delivery system which was in vogue in the pre- Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in 8 WP.ST 76 of 2020 litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
11. In Moti Lal Songara v. Prem Prakash @ Pappu and another reported as (2013) 9 SCC 199, the Hon'ble the Supreme Court, considering the issue regarding concealment of facts before the court, while observing that "court is not a laboratory where children come to play", opined as under:-
"18. The second limb of the submission is whether in the obtaining factual matrix, the order passed by the High Court discharging the accused respondent is justified in law. We have clearly stated that though the respondent was fully aware about the fact that charges had been framed against him by the learned trial Judge, yet he did not bring the same to the notice of the revisional court hearing the revision against the order taking cognizance. It is a clear case of suppression. It 9 WP.ST 76 of 2020 was within the special knowledge of the accused. Any one who takes recourse to method of suppression in a court of law, is, in actuality, playing fraud with the court, and the maxim supressio veri, expressio falsi, i.e., suppression of the truth is equivalent to the expression of falsehood, gets attracted. We are compelled to say so as there has been a calculated concealment of the fact before the revisional court. It can be stated with certitude that the accused- respondent tried to gain advantage by such factual suppression. The fraudulent intention is writ large. In fact, he has shown his courage of ignorance and tried to play possum. The High Court, as we have seen, applied the principle "when infrastructure collapses, the superstructure is bound to collapse". However, as the order has been obtained by practising fraud and suppressing material fact before a court of law to gain advantage, the said order cannot be allowed to stand."
12. Similar view was expressed by the Hon'ble the Supreme Court in Amar Singh v. Union of India and others, reported as (2011) 7 SCC 69, Kishore Samrite v. State of Uttar Pradesh and others, reported as (2013) 2 SCC 398, Zarina Siddiqui v. A. Ramalingam alias R. Amarnathan, reported as (2015) 1 SCC 705, High Court of Punjab & Haryana in M/s Manu Sharma and Company v. State of Haryana and others, reported as 2017(1) RCR (Civil) 608 and by High Court of Jammu & Kashmir in Mani Ram v. Janak Singh & Ors, reported as 2019 (2) JKJ
565. 10 WP.ST 76 of 2020
13. In a recent judgment in ABCD v. Union of India & Ors., reported as (2020) 2 SCC 52, the Hon'ble the Supreme Court in a matter where material facts had been concealed, while issuing notice to the petitioner therein, exercising its suo-motu contempt power,observed as under:-
"15. Making a false statement on oath is an offence punishable under Section 181 of the IPC while furnishing false information with intent to cause public servant to use his lawful power to the injury of another person is punishable under Section 182 of the IPC. These offences by virtue of Section 195(1)(a)(i) of the Code can be taken cognizance of by any court only upon a proper complaint in writing as stated in said Section. In respect of matters coming under Section 195(1)(b)(i) of the Code, in Pushpadevi M. Jatia v. M.L. Wadhawan etc., (1987) 3 SCC 367 prosecution was directed to be launched after prima faciesatisfaction was recorded by this Court.
16. It has also been laid down by this Court in Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421 that a person who makes an attempt to deceive the court, interferes with the administration of justice and can be held guilty of contempt of court. In that case a husband who had filed a fabricated document to oppose the prayer of his wife seeking transfer of matrimonial proceedings was found guilty of contempt of court and 11 WP.ST 76 of 2020 sentenced to two weeks imprisonment. It was observed as under:-
"1. The stream of administration of justice has to remain unpolluted so that purity of court's atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of court's environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned.
2. Anyone who takes recourse to fraud, deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice.
14. The legal position thus is that if the publication be with intent to deceive the court or one made with an intention to defraud, the same would be contempt, as it would interfere with administration of justice. It would, in any case, tend to interfere with the same. This would 12 WP.ST 76 of 2020 definitely be so if a fabricated document is filed with the aforesaid mens rea. In the case at hand the fabricated document was apparently to deceive the court; the intention to defraud is writ large. Anil Kumar is, therefore, guilty of contempt." In K.D. Sharma v. Steel Authority of India Limited and others, reported as (2008) 12 SCC 481 it was observed:-
"39. If the primary object as highlighted in Kensington Income Tax Commrs., (1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA) 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, manoeuvring 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."
'In Dhananjay Sharma v. State of Haryana and others, (1995) 3 SCC 757 filing of a false affidavit was the basis for initiation 13 WP.ST 76 of 2020 of action in contempt jurisdiction and the concerned persons were punished."
14. It was held in the judgments referred to above that one of the two cherished basic values of the Indian society for centuries is "satya" (truth) and the same has been put under the carpet by the petitioner. Truth constituted an integral part of the justice delivery system in the pre Independence era, however, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the Court proceedings. In the last 40 years, the values have gone down and now litigant can go to any extent to mislead the Court. They have no respect for the truth. The principle has been evolved to meet the challenges posed by this new breed of litigants. Now it is well settled that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. Suppression of material facts from the Court of law is actually playing fraud with the Court. The maxim supressio veri, expressio falsi, i.e. suppression of the truth is equivalent to the expression of falsehood, gets attracted. It is nothing but degradation of moral values in the society, may be because of our education system. Now we are more happy to hear anything except truth; read anything except truth; speak anything except truth and believe anything except truth. Someone rightly said that `Lies are very sweet, while truth is bitter, that's why most people prefer telling lies.' 14 WP.ST 76 of 2020
15. Now coming to the facts of the present case the petitioner herein had initially filed writ petition in this Court bearing WPA No. 5935 W of 2020. The number was assigned by the department concerned on July 09, 2020. The following reliefs were prayed for:-
(a) A writ in the nature of Mandamus/certiorari to quash/set aside/rescind the Notification being Memo No.DME/Spl. Corresp/2020/185 dated 06/07/2020 as issued by the authorities concerned and the relevant paragraph 3 of the notification being Memo No.HFW-23099/66/2020/M/905 dated 08/07/2020 as issued by the DME, Dept. of Health & Family Welfare (P-7 collectively).
(b) Direction upon the respondents not to cancel the admission in First round counseling of the petitioners who have already admitted as per First round counseling and also direction to give incentive marks to the tune of 30% to the petitioners in NEET PG West Bengal State Counselling 2nd Round or else round by counting their service at Remote and/or Difficult Area like Paschimanachal Unnyan Parshad area for 3 years and to correct the Final list in second/next round of counseling accordingly after giving the incentive marks to the petitioners to appear in online counseling until the result has been published and allowed them to retain their first round admitted seats.
(c) An order directing the respondents to produce all the records of this case so that conscionable justice may be rendered to the petitioner.15
WP.ST 76 of 2020
(d) A Rule Nisi in terms of prayer (a), (b) & (c) above.
(e) An interim order to give provisional incentive of 30% incentive marks to the petitioner to give effect of Memo No. HFW-23099/29/2019/373 dated 26.02.2020 and not to allow to admit any one to their seats where they have admitted already and also to keep 9 degree seat of MD/MS vacant until the present Writ Petition is disposed of.
(f) To allow to move this petition jointly as the cause of action remain same and against the same orders dated 06/07/2020 and 08/07/2020.
(g) To allow this petition to move through video/online procedure as allowed/conducted by Hon'ble High Court.
(h) Such order or further order/orders and/or direction/directions as may be deemed fit and necessary in the interest so of justice.
16. When the petitioner was not able to get any interim relief from this Court pertaining to his admission to the MD course, he filed an Original Application bearing O.A. No.243 of 2020 before the Tribunal. It was filed on August 24, 2020.
17. A perusal of the prayers made by the petitioner in the Original Application filed before the Tribunal shows that the issue sought to be raised was pertaining to the admission to the MD course in Radiology at Command Hospital, E.C., Kolkata. By no stretch of imagination the issue 16 WP.ST 76 of 2020 can be said to be a service dispute for which jurisdiction of the Tribunal could be invoked. Another fact which is important is that while filing the aforesaid Original Application before the Tribunal, the petitioner conspicuously concealed the material fact that he had already filed a writ petition in this Court bearing WPA No. 5935 W of 2020 praying for the same reliefs which was still pending.
18. The Tribunal considered the application filed by the petitioner and without application of mind to the issues raised especially pertaining to its jurisdiction to entertain the same, expressed sketchy opinion on merits of the controversy. While dismissing the Original Application recording to suppression of material facts by the petitioner, cost of 5,100/- was imposed.
19. As far as the argument of the learned Counsel for the petitioner regarding observation by the Tribunal on the merits of the controversy is concerned, we find merit therein. Once the Tribunal did not have the jurisdiction or was not entertaining the Original Application on account of suppression of material facts by the petitioner, no observation on merits of the controversy was required.
20. As far as the conduct of the petitioner is concerned, it is not in dispute that the petitioner had filed writ petition in this Court bearing WPA No.5935W of 2020 on July 09, 2020. While the same was still pending the petitioner filed Original Application bearing O.A. No.243 of 2020 before the Tribunal praying for the same reliefs. In the Original Application filed before the Tribunal the factum of filing and pendency of the writ petition in this Court claiming same reliefs, was not disclosed. In fact, the conduct of 17 WP.ST 76 of 2020 the petitioner who is a doctor by profession clearly establishes that it was a case of 'forum hunting' and a clear effort to mislead the Court to pass order in his favour. Not only this, in CAN 1 of 2020 filed by the petitioner in the present writ petition the reason assigned by the petitioner to file Original Application before the Tribunal was that the writ petition filed before this Court had not been numbered. Though, that cannot be accepted as a good reason for filing application before the Tribunal, which did not have jurisdiction to entertain the same. In any case, it is the undisputed fact that the petitioner had not disclosed the factum of filing of writ petition in this Court and the pendency thereof, for claiming the same relief. In fact, the petitioner was trying to be over smart at every stage. After the dismissal of the Original Application vide order dated August 24, 2020 he filed CAN 2 of 2020 before this Court, trying to explain that how suppression of fact had taken place. Besides, reiterating what was mentioned in CAN 1 of 2020 he added that while filing a joint petition in the name of Dr. Sk. Safikul Hasan, the name of the petitioner was inserted in the writ petition at serial No.3. The same cannot be considered to be an explanation which is worth acceptance. Once the petitioner had signed the power of attorney for filing the writ petition in this Court he cannot now turn around and plead that he is not in knowledge thereof. He had filed application for withdrawal of the writ petition.
21. The fact stated by the petitioner that the writ petition filed by him was not numbered and listed in Court, hence, he was compelled to file Original Application before the Tribunal is totally misconceived for the reason that the writ petition was listed in Court on July 22, 2020 and was directed to be heard along with other petitions pending in this Court raising 18 WP.ST 76 of 2020 similar issues, on July 24, 2020. Whereas the Original Application was filed before the Tribunal on August 24, 2020.
22. In view of our aforesaid discussions and also considering the enunciation of law with reference to the conduct of the petitioner whereby he had not only concealed material facts but had also tried to overreach the Court, we dispose of the present writ petition while setting aside the observation made by the Tribunal on merits of controversy but deem it appropriate to increase the cost imposed on him from 5,100/- to 51,000/-. The amount will be deposited by the petitioner in the Hospital where he is presently working. It shall be used for treatment of the poor patients at the discretion of the Principal, Midnapore Medical College & Hospital, Paschim Medinipur. The amount be deposited by the petitioner within the period of four weeks from the date of receipt of copy of the order. In case of the failure, the Principal of the College shall be entitled to recover the same from the salary payable to the petitioner.
(Rajesh Bindal) Judge (Aniruddha Roy) Judge Kolkata 24.03.2021
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PA(SG & SM)