Madras High Court
Tmt.Vasantha vs The Special Officer on 10 July, 2012
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 10.07.2012
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
W.P.No.34085 of 2004
Tmt.Vasantha ... Petitioner
..Vs..
1. The Special Officer,
Chinthamani Co-operative Supermarket,
Chennai 1.
2. The Registrar,
Co-operative Society,
Kilpauk, Chennai 10. ... Respondents
Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, seeking for a writ of mandamus, directing the respondents t consider the petitioner's representations dated 27.02.2003, 18.10.2003 and 19.10.2004 to settle the entire amount and other benefits for quick disposal.
For Petitioner : Mr.K.L.Sekar
For Respondents : Mr.Ravi Bharathi (for R1)
O R D E R
The petitioner, has sought for a writ of mandamus, directing the respondents to consider her representations dated 27.02.2003, 18.10.2003 and 19.10.2004 addressed to the respondents, to settle the entire retiral benefits.
2. According to her, at the time of filing of the writ petition, she was working as a Sales Woman in Chinthamani Co-operative Super Market, Chennai. She married one Mr.Gunasekaran on 01.05.1987, who was also working as a Sales Man in the same super market. The marriage was performed at Thirupathi, as per the Hindu rites and customs and that they were living together as husband and wife. Her husband Gunasekaran became ill and he died on 26.03.2002. Therefore, she obtained a legal heir certificate and applied to the Special Officer, Chinthamani Co-operative Super Market, Chennai, the 1st respondent for pension, gratuity, P.F., and Security Deposits. She also received a No Objection letter from her brothers-in-law.
3. It is the further case of the petitioner that accepting her claim, pension was sanctioned and on the date of filing of the writ petition, she was receiving a sum of Rs.1,125/-, as monthly pension. Provident Fund amount to the tune of Rs.39,397/-, was also received. The petitioner has further contended that when her husband Gunasekaran was working in the 1st respondent Co-operative Super market, he had joined Group Insurance Policy and after his death, Group Insurance amount Rs.1,00,000/- was sanctioned. But the first respondent disbursed only Rs.20,000/- from the Group Insurance amount and the balance amount of Rs.80,000/- was not paid. Other fixed deposits amount and benefits were also not disbursed. In such circumstances, the petitioner sent representations dated 27.02.2003, 18.10.2003 and 19.10.2004, respectively to the respondents. As there was no response, left with no other alternative, the petitioner has preferred the present writ petition. In addition to the above pleadings Mr.K.L.Sekar, learned counsel for the petitioner submitted that the pension is being paid periodically. He further submitted that during the pendency of the writ petition, the petitioner took voluntary retirement. However, there are no material documents to substantiate the same.
4. The Joint Director Special Officer, the Park Town Co-operative Wholesale Stores Ltd., Chennai, in his counter affidavit has submitted that the petitioner was a Sales woman in the 1st respondent store. The 1st respondent has further submitted that one Mr.Gunasekaran was employed in the 1st respondent store. He expired on 26.03.2002. After his death, the petitioner claiming herself to be the wife, produced a legal heir certificate and sought for retiral benefits. She claimed that her marriage with the said Gunasekaran, took place on 01.05.1987. Based on the legal heir certificate produced by the petitioner, a part of the Group Insurance amount of Rs.20,000/- out of Rs.1,00,000/- from family benefit fund, was disbursed. However, when the records pertaining to the Service Register of the petitioner and the Employees State Insurance declaration form-I, were perused, it revealed that the petitioner herself has declared N.Manickam as her husband and not Gunasekaran. She has also given the particulars of her children. Even the said Gunasekaran, who had expired on 26.03.2002, during his life time in the ESI Declaration Form-I, had nominated only his father R.Natarajan, as the nominee to receive the terminal benefits .
5. The 1st respondent has further submitted that the legal heir certificate dated 29.07.2002 has been issued by the Tahsildar, Purasaiwalkam, Perambur Taluk, Chennai 12, without disclosing the other legal representatives. It is also submitted in the counter affidavit that no certificate of marriage with deceased Gunasekaran or any decree, to substantiate her divorce with her husband N.Manickam, were produced. It is further submitted that if the petitioner had really married Gunasekaran as on 01.05.1987, she would not have nominated Mr.N.Manickam, as husband to receive the terminal benefits.
6. According to the 1st respondent, when the fraud committed by the petitioner came to light, disbursement of the remaining amount was stopped. In addition to the above, the learned counsel for the 1st respondent has refuted payment of provident fund amount.
7. Learned counsel further submitted that the petitioner has not approached this Court with clean hands and hence she is not entitled to the equitable remedy, under Article 226 of the Constitution of India. He also further submitted that the petitioner has to be punished for perjury against 1st respondent and a judicial enquiry under Section 197 r/w 340 Cr.P.C., may also be ordered. Recovery of the part amount paid, has also been sought for. In support of the above contentions, the learned counsel for the 1st respondent, invited the attention of this Court to the entries made in the Service Register of the petitioner dated 06.01.1988, service register of the deceased Gunasekar dated 01.01.1988, copy of the declaration made by the petitioner under ESI Act, regarding nomination of the petitioner dated 19.11.1984, nominating her husband N.Manickam, to receive the benefits and the copy of ESI Corporation declaration Form dated 24.09.1984, regarding nomination, submitted by the deceased Gunasekaran, nominating his father to receive the benefits. For the above said reasons, he prayed for dismissal of the writ petition.
8. Heard the learned counsel for the parties and perused the materials available on record.
9. Perusal of the copy of the Service Register of the petitioner enclosed at Page No.1 of the typed set of papers shows that the Service Register has been opened on 06.01.1988. It is settled position that entries in the Service Register are made only on the basis of the declaration of the employee concerned. In the certified copy of the declaration form (Regulation No.11 and 12) dated 19.11.1984, i.e., the date of appointment, submitted before the ESI Corporation, the petitioner has given the following particulars Name of : N.Manickam Age in years Nominee 35 10.07.1951 Father's/Husband's : N.Manickam Address name N.Manickam Relationship of nominee 20, J.T.Durairaj Nagar, with the insured person : Husband Aminjikarai, Madras - 29
10. The petitioner has declared her husband N.Manickam as the nominee. Thus, it is evident from the service register dated 06.01.1988 and the declaration Form-I (Regulation 11 and 12) under The ESI Corporation Act submitted on 19.11.1984, respectively, the petitioner, has declared Mr.N.Manickam as her husband.
11. As rightly pointed out by the learned counsel for the 1st respondent, the legal heir certificate dated 29.07.2002, issued by the Tahsildar, Purasaiwalkam, Perambur Taluk, Chennai vide Proceedings in Nee.Mu.No.26014/2002, does not contain the names of other heirs. The petitioner has obtained the abovesaid certificate stating as if, she is the only legal heir, to late Gunasekaran.
12. The deceased Gunasekaran in his ESI Corporation declaration Form dated 24.09.1984, i.e., the date of appointment, has furnished the following particulars.
Name of : R.Natarajan Age in years Nominee 65 years Father's/Husband's : Address name No.3, Thanthoni Relationship of nominee Amman Koil St., with the insured person : Father Agaram, M.S.82
The deceased Gunasekaran has nominated his father to receive his family fund.
13. When the petitioner in the declaration submitted for opening the service register, as on 06.01.1988, has declared N.Manickam as her husband and also nominated him to receive the provident fund and retiral benefits, it is not known as to when she got divorce from her husband N.Manickam.
14. As per the entries in the declaration form-1 (Regulation 11 and 12) dated 19.11.1984, the date on which, she was appointed, the petitioner had a son and two daughters. Her mother was also stated to be living with her. The claim of marriage on 01.05.1987, with N.Gunasekaran, appears to have been made, only for the purpose of claiming the retiral benefits, due and payable to N.Gunasekaran. In law, the petitioner cannot be a wife of two persons viz., Mr.N.Gunasekaran, as well as N.Manickam and that would be amounting to polyandry. With a view to receive the terminal benefits due and payable to Mr.Gunasekaran, she has obtained a legal heir certificate dated 29.07.2002, from the Tahsildar, Purasaiwalkam, Perambur Taluk, Chennai, vide Proceedings in Nee.Mu.No.26014/2002. As rightly pointed out by the learned counsel for the 1st respondent, when the serious discrepancy in the declaration form made at the time of opening of the service register and the Declaration Form 1 (Regulation 11 & 12) submitted to the ESI Corporation dated 19.11.1984, has come to light, the 1st respondent has stopped payment of the balance of Rs.80,000/- from and out of the Family Benefit Fund. The authorities ought to have verified the Service Register and the Declaration Form of the petitioner, as well as the records pertaining to the said Gunasekaran, at the time of authorising pension. In any event, rectification of the mistake, has been done.
15. The averments and the material on record shows that the petitioner has approached the authorities as well as this Court, for disbursement of retiral benefits contrary to her declaration about her marital status with N.Manickam. It is apparent that the claim of the writ petitioner is not bonafide. Remedy under Article 226 of the Constitution of India can be extended to only those, who approach this Court with clean hands. In this context, it is relevant to extract few decisions.
(a) In Arunima Baruah v. Union of India reported in 2007 (6) SCC 120, the Supreme Court held as follows:
"12. .......It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question.
13. In Moody v. Cox [(1917) 2 Ch. 71: (1916-17) All ER Rep 548 (CA)], it was held: (All ER pp. 555 I-556 D) "When one asks on what principle this is supposed to be based, one receives in answer the maxim that anyone coming to equity must come with clean hands. I think the expression clean hands is used more often in the textbooks than it is in the judgments, though it is occasionally used in the judgments, but I was very much surprised to hear that when a contract, obtained by the giving of a bribe, had been affirmed by the person who had a primary right to affirm it, not being an illegal contract, the courts of equity could be so scrupulous that they would refuse any relief not connected at all with the bribe. I was glad to find that it was not the case, because I think it is quite clear that the passage in Dering v. Earl of Winchelsea [(1787) 1 Cox Eq Cas 318: 2 Bos & P 270], which has been referred to, shows that equity will not apply the principle about clean hands unless the depravity, the dirt in question on the hand, has an immediate and necessary relation to the equity sued for."
14. In Halsburys Laws of England, 4th Edn., Vol. 16, pp. 874-76, the law is stated in the following terms:
1303. He who seeks equity must do equity.In granting relief peculiar to its own jurisdiction a court of equity acts upon the rule that he who seeks equity must do equity. By this it is not meant that the court can impose arbitrary conditions upon a plaintiff simply because he stands in that position on the record. The rule means that a man who comes to seek the aid of a court of equity to enforce a claim must be prepared to submit in such proceedings to any directions which the known principles of a court of equity may make it proper to give; he must do justice as to the matters in respect of which the assistance of equity is asked. In a court of law it is otherwise: when the plaintiff is found to be entitled to judgment, the law must take its course; no terms can be imposed.
* * * 1305. He who comes into equity must come with clean hands.A court of equity refuses relief to a plaintiff whose conduct in regard to the subject-matter of the litigation has been improper. This was formerly expressed by the maxim he who has committed iniquity shall not have equity, and relief was refused where a transaction was based on the plaintiffs fraud or misrepresentation, or where the plaintiff sought to enforce a security improperly obtained, or where he claimed a remedy for a breach of trust which he had himself procured and whereby he had obtained money. Later it was said that the plaintiff in equity must come with perfect propriety of conduct, or with clean hands. In application of the principle a person will not be allowed to assert his title to property which he has dealt with so as to defeat his creditors or evade tax, for he may not maintain an action by setting up his own fraudulent design.
The maxim does not, however, mean that equity strikes at depravity in a general way; the cleanliness required is to be judged in relation to the relief sought, and the conduct complained of must have an immediate and necessary relation to the equity sued for; it must be depravity in a legal as well as in a moral sense. Thus, fraud on the part of a minor deprives him of his right to equitable relief notwithstanding his disability. Where the transaction is itself unlawful it is not necessary to have recourse to this principle. In equity, just as at law, no suit lies in general in respect of an illegal transaction, but this is on the ground of its illegality, not by reason of the plaintiffs demerits.
(b) In Udayami Evam Khadi Gramodyog Welfare Sanstha v. State of U.P., reported in 2008 (1) SCC 560, at Paragraph 16, held as follows:
"15. A writ remedy is an equitable one. A person approaching a superior court must come with a pair of clean hands. It not only should not suppress any material fact, but also should not take recourse to the legal proceedings over and over again which amounts to abuse of the process of law. In Advocate General, State of Bihar v. M/s.Madhya Death Khair Industries and Anr. [1980 (3) SC 311, this Court was of the opinion that such a repeated filing of writ petitions amounts to criminal contempt."
16. Though there is no proof that the petitioner, is being paid monthly pension, on the facts and circumstances of this case, this Court is of the view that when the petitioner has received certain payments by producing documents like a legal heir certificate from the Tahsildar, contrary to the entries made in the service register dated 06.01.1988 and the Declaration Form (Regulation 11 and 12) of the ESI Corporation dated 19.11.1984, it is open to the respondents to take appropriate action for stopping pension, if they so desire, after providing a reasonable opportunity. The question of taking criminal action, is left open to the authorities to decide. Fraud cannot be allowed to be perpetuated. However, in so far as the amounts already received by the petitioner, recovery at this juncture would cause hardship as the petitioner is also stated to have retired some time back. The petitioner has not made out a case for issuance of a Mandamus. For the reasons stated supra, the writ petition is dismissed. No Costs.
ars To
1. The Special Officer, Chinthamani Co-operative Supermarket, Chennai 1.
2. The Registrar, Co-operative Society, Kilpauk, Chennai 10