Gujarat High Court
Jamnagar Area Development Authority vs Shri Vishal Bakulchandra Pandya on 29 January, 2025
Author: A. S. Supehia
Bench: A.S. Supehia, Gita Gopi
NEUTRAL CITATION
C/LPA/1280/2024 CAV JUDGMENT DATED: 29/01/2025
undefined
RESERVED ON : 16.01.2025
PRONOUNCED ON : 29.01.2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1280 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 4328 of 2014
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2024
In R/LETTERS PATENT APPEAL NO. 1280 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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Approved for Reporting Yes No
√
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JAMNAGAR AREA DEVELOPMENT AUTHORITY
Versus
SHRI VISHAL BAKULCHANDRA PANDYA & ANR.
=============================================
Appearance:
MR AR THACKER, ADVOCATE for Appellant-Development Authority
MR SHALIN MENTHA, SENIOR ADVOCATE with
MS ADITI S RAOL(8128) for the Respondent(s) No. 1
MR SAHIL B. TRIVEDI, AGP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present Letters Patent Appeal filed under Clause 15 of the Letters Patent, 1865, is directed against the judgment and order passed by the learned Single Judge in the captioned writ petition. The learned Single Judge has allowed the writ petition by imposing a cost of Rs.25,000/- on the respondent No.1 - original petitioner (employee) for suppressing the facts Page 1 of 27 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:35:28 IST 2025 NEUTRAL CITATION C/LPA/1280/2024 CAV JUDGMENT DATED: 29/01/2025 undefined and making false statement on oath, and further set aside the order of termination dated 25.02.2014 passed by the appellant (Development Authority) and directing the appellant-authority to reinstate the respondent No.1 (hereinafter referred as "the respondent - employee") in service from the date of termination with all consequential benefits, including back wages and continuity of service.
BRIEF FACTS -
2. The respondent no.1- original petitioner (employee) rendered service with the appellant-Jamnagar Area Development Authority, as Accountant Clerk-cum-Computer Operator from 01.10.1997 to 28.10.2005 and again as Assistant Accountant from 01.11.2005 to 29.01.2007 on contract basis.
3. Thereafter, the Appellant (employer), vide an Office Order dated 08.01.2008 appointed the petitioner on purely temporary basis to the post of Clerk-cum-Typist on the terms and conditions specified therein on basic salary of Rs.3,050/- per month in the pay scale of Rs.3050-75-3950-80-4590 plus usual allowances as admissible as per rules of the Government of Gujarat. The appointment was on probation for a period of two years. The condition no. 2 of the appointment order stipulates that "The appointment is purely temporary and is terminable at any time by giving 24 hours notice on either side."
4. On completion of his two years of probation on 08.01.2010, vide order dated 03.02.2010, the appellant Page 2 of 27 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:35:28 IST 2025 NEUTRAL CITATION C/LPA/1280/2024 CAV JUDGMENT DATED: 29/01/2025 undefined treated the probation period of the respondent no.1 as continuous and confirmed him as per the terms and conditions of service stipulated in Government Resolution dated 30.09.1988, as amended from time to time. He was also conferred the benefit of pay revision under 6th Pay Commission and, thus, his pay was fixed in the Pay Band of Rs.5200-20200 with Grade Pay of Rs. 1,900/- with date of his first increment being 01.07.2008.
5. Vide "Notice and Office Order" dated 25.02.2014 the appellant-Authority terminated the service of the respondent no.1 by invoking the condition no. 2 of his appointment order dated 08.01.2008.
6. The learned Single Judge has set aside the termination of the respondent no.1, which has given rise to the present appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANT-
AUTHORITY -
7. Learned advocate Mr.A.R. Thacker, has contended that the learned Single Judge has failed to appreciate the correct status of the respondent no.1-employee. It is submitted that the learned Single Judge has failed to appreciate the fact that the respondent - employee was never regularized in service. He has referred to the appointment order of the respondent - employee dated 08.01.2008 and has submitted that his appointment was purely temporary and could be terminated at any time by giving 24 hours' notice. Similarly, he has referred to the order dated 04.09.2008 and has submitted that the Page 3 of 27 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:35:28 IST 2025 NEUTRAL CITATION C/LPA/1280/2024 CAV JUDGMENT DATED: 29/01/2025 undefined same would not in any manner mean that the he was regularized in service, but he was only given the charge of the Deputy Accountant. While referring to the order dated 03.02.2010, it is submitted by him that the respondent no.1 was only placed in regular pay-scale on temporary basis.
8. While referring to the Confidential Report of the respondent - employee, it is submitted that all the reports of the respondent employee reveal that the respondent was a temporary employee. Thus, it is urged that the learned Single Judge has incorrectly placed reliance on the entries of the Service Book (at page No.122) by recording that it reveals that the respondent-employee was regularized in service. Thus, it is submitted that since all the documentary evidence reflect that the respondent no.1 was a temporary employee, his service can be terminated by issuing simple notice as per the conditions of the appointment order dated 08.01.2008.
9. While the matter was being heard before us on numerous occasions, we had asked the learned advocate Mr.Thacker, appearing for the Development Authority to point out any provisions or their rule and regulations, which empowers it to place an employee on temporary basis, even after satisfactory completion of probation period. In this regard, learned advocate Mr.Thacker, has produced the Rules, titled as "Terms and Conditions of Service of Staff Employee employed by Area / Urban Development Authority". He has referred to Part-II of such Rules, which governs the probation. He has also referred to Part-III of the Rules, which governs the termination of the service.
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10. Another contention with regard to the maintainability of the writ petition is also canvassed before the learned Single Judge and before us also. The appellant has questioned the maintainability of the writ petition in view of the suppression of material fact by the respondent no.1 - original petitioner. It is vehemently submitted by him that the respondent has suppressed the material fact about filing of Appeal No.331 of 2014 for the very same prayers. It is submitted that the said appeal was withdrawn by the respondent from the Tribunal, and thereafter, the writ petition was filed without mentioning such fact. It is submitted that the learned Single Judge, though has noticed about the suppression of fact, has allowed the writ petition by imposing the cost of Rs.25,000/- and instead, it is urged that the learned Single Judge ought to have dismissed the writ petition.
11. Learned advocate Mr.A.R. Thacker, has referred to the Rule 174 of the Gujarat High Court Rules, 1993, which mandates that every application filed before this Court has to mention all the proceedings undertaken by the petitioner(s) either before the Supreme Court / High Court or any other Courts.
12. In support of his submissions, learned advocate Mr.Thacker, has placed reliance on the following decisions of the Supreme Court as well as of this Court.
(i) K.Jayaram and others Vs. Bangalore Development Authority and Ors., (2022) 12 S.C.C. 815.
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(ii) State of Orissa Vs. Laxmi Narayan Das , AIR 2023 S.C. 3425.
(iii) Yashoda (Alias Sodhan) Vs. Sukhwinder Singh and Ors., 2022 (0) AIR (SC) 4623.
(iv) State of Gujarat Vs. Siddik Osman Chaki , (Division Bench of this Court), 2024 GUJHC 42715.
(v) Gujarat Housing Broad Vs. Nagajibhai Laxmanbhai and Ors., 1985 G.L.H. 999 (Full Bench Judgment) for later decision to prevail.
SUBMISSIONS ON BEHALF OF RESPONDENT NO.1 (EMPLOYEE) -
13. While opposing the aforesaid submissions, learned senior advocate Mr.Shalin Mehta, appearing with the learned advocate Ms.Aditi S. Raol, has submitted that the respondent no.1 was initially appointed on probation for a period of two years, and subsequently, on completion of the probation period, he has been confirmed and conferred the regular pay- scale and thereafter, the services of the respondent were terminated by invoking the conditions No.2 of the appointment order, which is illegal and arbitrary. It is submitted that after the respondent was conferred the regular pay-scale, the entries in the Service book also categorically show that he has been regularized in service.
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14. With regard to the suppression of facts, learned senior advocate Mr.Mehta, has further submitted that the suppression of the earlier proceedings / application filed before the Tribunal cannot be said to be material in wake of the fact that the day, on which the writ petition was filed i.e. on 18.03.2014, simultaneously, the respondent had also filed the application on the same day i.e. on 18.03.2014 before the Tribunal for withdrawal of Appeal No.331 of 2014, however, the Tribunal on 10.04.2014 had granted permission to withdraw such appeal. In the written submissions it is mentioned that no notice was issued to the other side in the said appeal, and also that the appeal filed by the respondent no.1 before the Tribunal was also not maintainable since he is not a "Specified Civil Servant"
as defined under section 2(h) of the Gujarat Civil Services Tribunal Act, 1972. Thus, it is urged that for this lacuna, the learned Single Judge has imposed the costs of Rs.25,000/-. He has also referred to the application in this regard dated 18.03.2014 filed by the applicant, in which, it is specifically recorded that he wants to withdraw the appeal with a view to approach the Gujarat High Court. Thus, it is urged that the present appeal may not be entertained.
ANALYSIS AND CONCLUSION -
15. We have heard the learned advocates appearing for the respective parties. There are two issues involved in the present appeal.
16. One, as to whether service of the respondent - employee could have been done by invoking Clause 2 of the appointment order dated 08.01.2008, and second, whether the writ petition Page 7 of 27 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:35:28 IST 2025 NEUTRAL CITATION C/LPA/1280/2024 CAV JUDGMENT DATED: 29/01/2025 undefined ought to have been rejected by the learned Single Judge on the ground of suppression of the material fact.
OPINION ON ISSUE NO.1 -
17. It is the case of the appellant-Development Authority that since the status of the respondent no.1 - employee was a 'temporary employee', his service was amenable to be terminated by invoking the condition no.2 of the appointment order dated 08.01.2008. Prior to the appointment, he was already working as Accountant Clerk-cum-Operator fom 01.10.1997 to 28.10.2005, and as an Assitant Accountant from 01.11.2005 to 29.01.2007 on contract basis. Thereafter, he appointed by undertaking necessary process by calling names from the Employment Exchange.
18. In order to examine the status of the respondent as an employee, we may examine the documents, which are produced on record by the respective parties.
19. The first document is the appointment order dated 08.01.2008. The same refers that the respondent no.1 was appointed as a Clerk-cum-Typist.
20. The condition No.2 is "the appointment order is purely temporary and is terminable at any time of giving 24 hours' notice on either side".
21. The condition No.4 is "the appointment is on probation for a period of two years". Thus, the respondent no.1 was appointed as Clerk-cum-Typist on temporary basis, and he was on probation for a period of two years.
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22. It appears that thereafter by the order dated 04.09.2008, the respondent - employee was given charge of Deputy Accountant with retrospective effect from 09.01.2008.
23. The next document is the order dated 03.02.2010. The same is translated as under : -
"NO.JADA/EST/VBP/616 Date:3/02/2010
Reference:
1) Order dated JADA/ADMIN/RECRUIT/100, DATED: 08.01.08
2) Terms and conditions of service decided as per Govt. Resolution dt.30/09/1988,
3) Order of this Authority being order no. JADA/EST/5 of Pay scale as per the 6th pay commission
4) Approval as per noting of para 15 granted to Chairman on the file of Vishal B Pandya "Order The Development Authority by the reference No.1 order appointed Shri Vishal Pandey on temporary basis as Clerk-cum-Typist for a period of two years probation. On completion of two years probation period, his service rendered on probation period is considered as continuous service, and in view of the Government Resolution at Reference-3, his service is ordered to be regularized with the condition of compliance of terms and conditions of service as referred in the Government Resolution.
The concerned employee, who has joined the Development Authority on 09.01.2008 is entitled to the benefit of 6th Pay Commission and he is placed in the pay scale of Rs.5200-20200, pay band-I and grade pay of Rs.1900 as per the Reference-3 Order and accordingly, he is conferred the benefit of first increment with effect from 01.07.2008 and also all the benefits as per the standard norms of the State Government, and the appointment is to be considered as temporary."
24. Thus, the contents of the order dated 03.02.2010 are self-explanatory. The period spent by the respondent no.1 on probation has been regularized after successful completion of Page 9 of 27 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:35:28 IST 2025 NEUTRAL CITATION C/LPA/1280/2024 CAV JUDGMENT DATED: 29/01/2025 undefined probation period, and he is also conferred the regular pay scale as per the 6th Pay Commission with accompanying increment. The entries were also made in the Service Book in this regard. However, at the end of the order, the authority has still recorded that he is to be considered as "temporary". The references which are made in the aforesaid order are not produced before us, and in fact the appellant has placed reliance on the Rules which we will be dealing separately. Thus, from the tenor of the order it appears that expression "temporary" appears to be misnomer, and appears to have been made in order to make the service of the respondent No.1 vulnerable. It is also pertinent to note that the appellant has been utilizing his service since 1997 till 2007 as a contractual employee, and when after rendering his service for number of years, he was given hope that he is appointed as a regular employee, and also conferred regular pay scale after successful completion of probation period, the appellant has acted in a deceitful manner by still designating him as 'temporary'.
25. Thereafter, vide order dated 25.02.2014, which mentions as "Notice and Office order", the respondent has been terminated from the service by invoking the condition No.2 of the appointment order by giving 24 hours' notice and he is also directed to handover the entire charge with cash, keys and office record on expiry of the notice. Thus, the respondent no.1 is terminated after completion of almost 6 years of service from 2008.
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26. Before the learned Single Judge, and also in the pleadings of the writ petition, neither the appellant-authority nor the respondent no.1-petitioner have referred to the Rules/Regulations governing the service conditions of the employees of the appellant-authority.
27. While the matter was being heard before us on numerous occasions, we had asked the learned advocate Mr.Thacker, appearing for the Development Authority to point out any provisions or their rules and regulations, which empower it to place an employee on temporary basis, even after satisfactory completion of probation period.
28. In this regard, learned advocate Mr.Thacker, has produced the Rules, titled as "Terms and Conditions of Service of Staff Employee employed by Area / Urban Development Authority. He has referred to Part-II of such Rules, which governs the probation. He has also referred to Part-III of the Rules, which governs the termination of the service.
29. As per the case of the appellant itself, the probation period of the respondent is governed by the Rule 12 of Part-II, which has captioned of probation. The same is incorporation as under : -
"Rule 12. Period of Probation and tests :-
Where the post is filled by the direct recruitment, the candidate appointed shall be on probation for a period of two years from the date of appointment and shall have to pass through the tests that may be specified by the Authority from time to time."
30. We may also refer to Rule 14, which reads as under : -
"Rule 14 - Chief Executive powers to extend probation period:-Page 11 of 27 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:35:28 IST 2025
NEUTRAL CITATION C/LPA/1280/2024 CAV JUDGMENT DATED: 29/01/2025 undefined The period of probation of an employee may be extended at the discretion of the Chief Executive but in no case may this period exceed three years from the date of appointment. In case of officers, the power to extend the period of probation shall be exercised by the Selection Committee."
31. Thus, the aforesaid Rules do not in any manner reflect that after the completion of probation period satisfactorily, the employee can be further placed on temporary basis. Rule 14 confers power to the Chief Executive to extend the probation period, but in no case beyond three years and in case of officers such extension can only be exercised by the Selection Committee.
32. There is no order shown to us which extending the period of probation under Rule 14. On the contrary, the appellant has categorically recorded that the respondent no.1 has satisfactorily completed his probation period, and his period is regularised. The appellant has miserably failed to point out before us that even after completion of the probation period satisfactorily, the employee can again be placed on temporary post while conferring him the regular pay-scale.
33. The Rule 15 of Part-III of the termination of the service also does not envisage such a situation, wherein the service of an employee can be terminated by giving 24 hours' notice. Sub-Rule (4) of Rule 15 is incorporated as under : -
"4) The Authority may terminate the service of any employee after expiry of the period of his probation on giving him:
(a) three month's notice or substantive pay in lieu thereof, if he is an employee in Class-I and, Page 12 of 27 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:35:28 IST 2025 NEUTRAL CITATION C/LPA/1280/2024 CAV JUDGMENT DATED: 29/01/2025 undefined
(b) One month's notice or substantive pay in lieu thereof if he is an employee in any other classes. The power to terminate the service of an employee shall be exercised by the appointing authority.
(5) Nothing in this Terms and conditions of service shall affect the right of the Authority.
(a) to retire or dismiss an employee without notice or pay in lieu thereof in accordance with the provisions of Terms & Conditions only.
(b) To terminate the service of an employee without notice or pay in lieu thereof on his being certified by a qualified medical officer approved by the Authority to be permanently incapacitated for further continuous service in the Authority."
34. Sub-rule 4(b) refers to one month's notice or substantive pay in lieu thereof if an employee i.e. like the present respondent is required to be terminated after completion of probation. In the instant case, the respondent no.1 has completed almost 6 years of service after his appointment, including 4 years after the order dated 03.02.2010 was passed regularizing his service.
35. Sub-rule (5) of Rule 15 empowers the authority to retire or dismiss the employee without notice or pay in lieu thereof in accordance of the "Terms and Conditions" only. It appears that the expression "Terms and Conditions" as referred in Sub-rule (5)(a) does not relate to the 'terms and condition" of the appointment order, which is sought to be canvassed by the appellant, but it refers to the present Rules, which are titled as "Terms and Conditions of Service of Officers and Employees of Staff Employed by the Area / Urban Development Authority". Thus, in absence of any Rule which enables the appellant-
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36. The condition No.2 of the appointment order dated 08.01.2008 will pale into insignificance in view of the subsequent orders, which are passed conferring the regular pay-scale to the respondent and also regularizing his service. It was not open for the appellant to invoke the condition No.2, after a period of six years. If the appellant is allowed to invoke the condition of appointment order at the stage, which is done in the case of the respondent no.1, then the employment/service of its employees will always remain susceptible and in state of flux, and they will never feel secure even on successful completion of their probation period and also conferment of the regular pay scale. The appellant cannot be allowed to exercise such power arbitrary at any stage. The regularization of the probation period of an employee and the grant of regular pay scale as per norms of the State Government gives rise to legitimate expectation to the employee that his service gets secured and they can be treated as regular employees. After such benefits are extended to an employee, the appellant cannot fallback to the initial terms and conditions of the appointment order, and treat him as if he is a fresh appointee, and make him amenable to the rigors of the condition of being terminated within short notice of 24 hours.
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37. Hence, we declare that the action taken by the appellant of terminating the service of the respondent by the order dated 25.02.2014 by invoking the condition No.2 of the appointment order is illegal, arbitrary and dishonest.
OPINION ON ISSUE NO.2-
38. The next issue is with regard to the suppression of fact. It was vehemently contended before us by the appellant that the writ petition ought to have been rejected by the learned Single Judge as the respondent no.1-original petitioner had suppressed the vital aspect of filing an appeal before the Tribunal for very same relief. Rule 174 of the Gujarat High Court Rules, 1993 mandates disclosure of earlier proceedings filed before any Court.
39. Before examining the case law cited by the learned advocate appearing for the appellant, it would be apposite to refer to the undisputed facts of the appeal filed before the Tribunal and the present writ petition. From the documentary evidence, it appears that the respondent assailed the order of termination before the Gujarat Civil Services Tribunal, Gandhinagar by filing Appeal No.331 of 2014 on 26.02.2014. It is asserted by the respondent no.1 that no notice was issued to the other side, i.e the appellant by the Tribunal and the appeal was not adjudicated. Thereafter, he filed an application on 18.03.2014 (page No.67) seeking permission to withdraw his appeal with a view to challenge the order of termination before the Gujarat High Court. After two days, i.e. on 20.03.2014, he filed the captioned writ petition. It is pertinent to note that on Page 15 of 27 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:35:28 IST 2025 NEUTRAL CITATION C/LPA/1280/2024 CAV JUDGMENT DATED: 29/01/2025 undefined the application, which was filed on 18.03.2014 seeking withdrawal, the Tribunal passed an order dated 10.04.2014 accepting the application and giving permission to the respondent to withdraw the appeal vide order dated 10.04.2014. The said order specifically records that the demand made by the respondent employee is accepted and their appeal is allowed to be withdrawn. However, the fact remains that while filing the writ petition on 20.03.2014, the appellant did not mention about the filing of Appeal No.331 of 2014 and on the contrary, a statement is made that "he has not filed any application or appeal before the Hon'ble Supreme Court of India or before the High Court or before any other Court or Tribunal in respect of the subject matter to which this petition relates". Thus admittedly, the respondent did not mention about either of filing of the appeal or its withdrawal. The respondent was at least required to mention about filing of the appeal and also an application filed by him seeking withdrawal of the appeal in compliance of Rule 174 of the Gujarat High Court Rules, 1993. Thus, the issue, which falls for deliberation is that whether non-mentioning of the said fact would be fatal for the respondent no.1 to the extent of denying him the relief by setting aside the arbitrary and illegal order or not.
40. We shall now make an endeavor to deal with the judicial precedent relied upon by the appellant. There cannot be any cavil on the proposition of law, which is enunciated by the Apex Court in the aforementioned judgments, however, its applicability to the facts of the present case requires examination.
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(i) The facts of the case of K.Jayaram (supra) are that the litigant has not disclosed the filing and the dismissal of the suit, and also the dismissal of the appeal against the judgement of the civil court in the writ petition. Thus, the facts are very egregious, and in wake of such facts the Apex Court has held that concealing such material facts will amount to committing fraud with the Court.
(ii) In the case of Laxmi Narayan Das (supra), the facts are that the litigant filed a civil suit in the year 2003 seeking declaration relating to land, the said suit was contested, and thereafter it was dismissed as withdrawn on 28.07.2007, and it is pertinent to note that the permission sought for filing a fresh suit was declined by the Court. Thereafter, a writ petition was filed before the High Court in the year 2008 suppressing the proceedings and withdrawal of the civil suit. The Apex Court has non suited the litigant by holding that he was guilty of suppressing the material fact of withdrawal of the suit and the declining of permission to file fresh in the writ petition.
(iii) The facts of the case of Yashoda (Alias Sodhan)(supra), are that the litigant filed Civil Suit No.141 of 1994 on 10.02.1994 for declaration on the basis of family settlement of November 1993, and on an application filed by Page 17 of 27 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:35:28 IST 2025 NEUTRAL CITATION C/LPA/1280/2024 CAV JUDGMENT DATED: 29/01/2025 undefined the plaintiff, the said suit was dismissed as withdrawn on 07.05.1994. Again the second suit being No.536 of 1994 seeking specific performance was filed suppressing the details of the earlier suit. On being such fact pointed out by the defendant, the plaintiff filed a Replication Application contending that the first suit for declaration was filed only to avoid payment of stamp duty and registration charges. The trial court found that the plaintiff has made an attempt to defraud the State of its revenue. The Apex Court held that the plaintiff had approached with pair of dirty hands, and the withdrawal of the earlier suit without liberty to file another suit was a material fact, and 'material fact' would mean material for the purpose of determination of lis. The Supreme Court held that the statement made by the litigant explaining suppression was a trickery so as to obtain judgment by misleading the court. It is also held that what would be a 'material fact' would depend upon the facts and circumstances of each case. Thus, in wake of glaring facts, and the conduct of the plaintiff, the Apex Court has held that suppression of filing and withdrawal of the suit without seeking permission is held to fatal for the plaintiff.
(iv) In the case of Siddik Osman Chaki (supra), the Division Bench of this Court, has allowed the Page 18 of 27 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:35:28 IST 2025 NEUTRAL CITATION C/LPA/1280/2024 CAV JUDGMENT DATED: 29/01/2025 undefined writ letters patent appeal on merits as well. One of the reasons which has weighed upon the Division Bench was suppression of filing and withdrawing the earlier writ petition. It appears that the writ petitions were filed in the year 2014, and after issuance of notice, the respondents had appeared and contested, and it was withdrawn unconditionally on 06.07.2015, without seeking any liberty.
Thus, the Supreme Court in the facts of each case, and looking to the degree/gravity, the manner of suppression, the conduct of the litigant has held that the suppression of earlier litigation by the litigant in the subsequent proceedings would be a material suppression, and the same can invite adverse inference, that the litigant has committed fraud and has come with unclean hands, ultimately denying him the relief in the later litigation in which the material fact was suppressed. Hence, it becomes necessary to examine as to whether the act of the respondent no.1 in not disclosing the fact of filing and the withdrawal of the appeal would be a 'material fact' and whether such act can eclipse the illegal and arbitrary action of the Appellant.
41. In the instant case, the learned Single Judge has imposed cost for suppression of facts by placing reliance on the judgment of the Supreme Court in the case of S.J.S Business Enterprises (P) Ltd. vs. State of Bihar and others, (2004) (7) Page 19 of 27 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:35:28 IST 2025 NEUTRAL CITATION C/LPA/1280/2024 CAV JUDGMENT DATED: 29/01/2025 undefined SCC 166. The said judgement has been distinguished in the case of Arunima Baruah Vs. Union of India and others reported in (2007) 6 SCC 120. We may also point out that this decision is considered in the case of Yashoda (alias Sodhan) (supra) for determining the suppression of fact as material or not, which would depend on the facts and circumstances of each case. We may incorporate the relevant observations of the Supreme Court in the case of Arunima Baruah (supra). The same are as under : -
"11. The court's jurisdiction to determine the lis between the parties, therefore, may be viewed from the human rights concept of access to justice. The same, however, would not mean that the court will have no jurisdiction to deny equitable relief when the complainant does not approach the court with a pair of clean hands but to what extent such relief should be denied is the question.
12. It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. 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.
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16 There is another doctrine which cannot also be lost sight of. The court would not ordinarily permit a party to pursue two parallel remedies in respect of the same subject matter. See Jai Singh V/s. Union of India and Others, 1977 1 SCC 1. But, where one proceeding has been terminated Page 20 of 27 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:35:28 IST 2025 NEUTRAL CITATION C/LPA/1280/2024 CAV JUDGMENT DATED: 29/01/2025 undefined without determination of the lis, can it be said that the disputant shall be without a remedy-
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"20. Existence of an alternative remedy by itself, as was propounded in S.J.S. Business Enterprises (P) Ltd. (supra) may not be a relevant factor as it is one thing to say that there exists an alternative remedy and, therefore, the court would not exercise its discretionary jurisdiction but it is another thing to say that the court refuses to do so on the ground of suppression of facts.
21. Ubi jus ibi remedium is a well known concept. The court while refusing to grant a relief to a person who comes with a genuine grievance in an arguable case should be given a hearing. [See Bhagubhai Dhanabhai Khalasi (supra)] In this case, however, the appellant had suppressed a material fact. It is evident that the writ petition was filed only when no order of interim injunction was passed. It was obligatory on the part of the appellant to disclose the said fact.
22. In this case, however, suppression of filing of the suit is no longer a material fact. The learned Single Judge and the Division Bench of the High Court may be correct that, in a case of this nature, the court's jurisdiction may not be invoked but that would not mean that another writ petition would not lie. When another writ petition is filed disclosing all the facts, the appellant would be approaching the writ court with a pair of clean hands, the court at that point of time will be entitled to determine the case on merits having regard to the human right of the appellant to access to justice and keeping in view the fact that judicial review is a basic feature of the Constitution of India.
23. The judgment of the High Court, in a case of this nature, shall not operate as a res judicata.
24. For the reasons aforementioned, while we uphold the judgment of the High Court, are of the opinion that in the event the appellant files a fresh writ application, the same may be considered on its own merits. The appeal is dismissed with the aforementioned observations. No costs."
42. We shall now discuss as to whether the learned Single Judge is justified in imposing the cost on the respondent no.1 for suppressing the fact by placing reliance on the judgment Page 21 of 27 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:35:28 IST 2025 NEUTRAL CITATION C/LPA/1280/2024 CAV JUDGMENT DATED: 29/01/2025 undefined rendered in the case of S.J.S Business Enterprises (P) Ltd. (supra), and thereby curing the defect. The Apex Court in the case of S.J.S Business Enterprises (P) Ltd. (supra), has dealt with the suppression of filing of civil suit in the writ petition. The explanation tendered for suppression that the civil suit was filed by one of the Directors of the Company without the knowledge of the Director, who almost simultaneously approached the High Court by filing writ petition was disbelieved by the Apex Court. However, the Apex Court has held that the suppression of fact of filing the civil suit cannot be said to be material for the disposal of the writ petition on the doctrine of parallel proceedings, and availing of the alternative remedy. The Supreme Court has distinguished the ratio laid down in the case of S.J.S Business Enterprises (P) Ltd. (supra) by holding that "Existence of an alternative remedy by itself, as was propounded in S.J.S. Business Enterprises (P) Ltd.(supra) may not be a relevant factor as it is one thing to say that there exists an alternative remedy and, therefore, the court would not exercise its discretionary jurisdiction but it is another thing to say that the court refuses to do so on the ground of suppression of facts." The Supreme Court has not held that the such defect can be cured by imposing cost on the litigant who has suppressed a material fact which the learned Single Judge has done. Thus, the learned Single Judge has fell in error in condoning the lacuna of the respondent no.1 by imposing the cost on him, and also placing reliance on the aforesaid decision.
43. The facts of the case of Arunima Baruah (supra) are almost pari metiria to the present case and the same suggest Page 22 of 27 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:35:28 IST 2025 NEUTRAL CITATION C/LPA/1280/2024 CAV JUDGMENT DATED: 29/01/2025 undefined that the appellant therein had filed a suit before the District Court on 28.03.2001 and in such suit, a notice was issued to the defendant, but no interim injunction was passed. Simultaneously, the appellant filed a writ petition before the High Court, however the fact with regard to the pendency of the suit was not disclosed and when the matter came for preliminary hearing, she filed an application for withdrawal of the suit. However, the application could not be moved because of the strike resorted to by the lawyers and after the preliminary hearing, when the notice was issued in the writ petition, her application for withdrawal of the suit came up for consideration before the Civil Court and upon a statement made by her, the appellant was permitted to withdraw the same by the order dated 30.04.2001, which is subsequent to the preliminary hearing of the writ petition i.e. on 18.04.2001. The High Court dismissed the writ petition on the ground of suppression of material facts, which was subject matter of challenge before the Supreme Court. The Supreme Court has examined twin aspects; one with regard to the availability of alternative remedy and another is suppression of material fact.
44. With regard to the suppression of material fact, and grant of consequential relief the Supreme Court has observed that the Court's jurisdiction to determine the lis between the parties, is to be viewed from the human rights concept of access to justice, and to what extent such relief should be denied is the question, which has to be considered. After survey of various judgments, it is reiterated 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 Page 23 of 27 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:35:28 IST 2025 NEUTRAL CITATION C/LPA/1280/2024 CAV JUDGMENT DATED: 29/01/2025 undefined the said dirt is removed and the hands become clean, whether the relief would still be denied is the question. The Supreme Court, though held that the appellant therein had suppressed "material fact", but it appears that at the time of hearing the Civil Appeal, the Apex Court held that it was no longer a "material fact", and it is held that in case another writ petition is filed disclosing all the facts, the litigant would be approaching the writ court with a pair of clean hands, and the court at that point of time will be entitled to determine the case on merits having regard to the human right of the appellant to access to justice and keeping in view the fact that judicial review is a basic feature of the Constitution of India. Ultimately, the Apex Court has granted liberty in favour of the appellant therein to file a fresh writ petition disclosing the facts.
45. In the instant case the facts of filing the appeal before the Tribunal, the stage of withdrawal and the stage of filing the writ petition, and its disposal become very significant to determine as to whether suppression was 'material' or not. We may reiterate the facts in this regard. The respondent no.1 filed Appeal No.331 of 2014 on 26.02.2014, and application for withdrawal was filed on 18.03.2014 seeking liberty to approach High Court, which was allowed on 10.04.2014. Though, filing of the writ petition and withdrawal of the application is coterminous, but it was always open for the respondent no.1 to disclose the facts relating to filing of the appeal and the application in the writ petition which is mandated to Rule 174 of the Gujarat High Court Rules, 1994. Thus, indubitably, the Page 24 of 27 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:35:28 IST 2025 NEUTRAL CITATION C/LPA/1280/2024 CAV JUDGMENT DATED: 29/01/2025 undefined respondent no.1 can be said to have suppressed a 'material fact'.
46. Having held that the respondent no.1 has suppressed a material fact, we shall now examine as to whether the respondent no.1 can be non suited for the relief in light of the facts and circumstances of the present case. It is not the case of the appellant-authority that the respondent no.1 failed to obtain any interim order, and thereafter he chose to file the writ petition. The Tribunal has not issued notice and summoned the present appellant in the proceedings. The respondent no.1 has also submitted that in fact his appeal before the Tribunal was not maintainable. Looking to the overall circumstances which have prevailed, at this stage, we are of the opinion that the respondent no.1 cannot be declared remediless, more particularly in wake of the fact that the respective parties before the learned Single Judge and before us have advanced their submissions on merit also, and we have held the action of the appellant-authority in terminating the service of the respondent no.1 as absolutely illegal and arbitrary. We may adopt the analogy of the Supreme Court to the extent that at this stage, the suppression of fact of filing the appeal has no longer remained a material fact, however, can the respondent no.1 be asked to file a fresh writ petition disclosing the correct facts, after a period of 10 years is the issue which stares at our face. As mentioned herein above, the learned Single Judge has also held the action of the appellant as illegal, which we have also confirmed. At this stage we may remind ourselves with the annotation of the Constitution Bench Page 25 of 27 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:35:28 IST 2025 NEUTRAL CITATION C/LPA/1280/2024 CAV JUDGMENT DATED: 29/01/2025 undefined in the case of Charan Lal Sahu Versus Union of India, 1990 (1) SCC 613;
"Justice, it has been said, is the constant and perpetual disposition to render every man his due. But what is a man's due in a particular situation and in a particular circumstance is a matter for appraisement and adjustment. It has been said that justice is balancing. The balances have always been the symbol of even-handed justice. But as said Lord Denning in Jones V/s. National Coal Board let the advocates one after the other put the weights into the scales the 'nicely calculated less or more but the judge at the end decides which way the balance tilts, be it ever so slightly. This is so in every case and every situation."
47. Keeping in mind the preceding observations and the concept of balancing the justice and the human right of the respondent no.1 to access justice, coupled with peculiar facts and the compelling circumstances of the present case, in our opinion, the writ petitioner-employee cannot be non-suited for non-disclosure of the material fact, and he cannot be directed to file a fresh writ petition disclosing the filing of the fact of filing and withdrawal of appeal. However, concurrently, we also hold that the impact of a 'material suppression of fact', like the present one cannot be diluted by simply imposing cost on the litigant, which has been done by the learned Single Judge. The defect of suppression cannot be cured by imposing cost. Such an approach will be an anathema to Rule 174 of the High Court Rules. The conduct of the litigant, gravity and degree of suppression of material fact, and the extent of disentitlement or denial of the discretionary relief are some of the factors which require close scrutiny. All these aspects are contingent to the facts and circumstances of each case. The passage of Page 26 of 27 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:35:28 IST 2025 NEUTRAL CITATION C/LPA/1280/2024 CAV JUDGMENT DATED: 29/01/2025 undefined time and the course adopted by the litigants in the judicial proceedings, will also have direct bearing on the final relief or outcome in such type of cases. These are the factors which become relevant to decide as to whether the sting of suppression of material fact would be fatal for access to justice, and to what extent the relief can be granted by the Court. The learned Single Judge has failed to discuss and appreciate all these aspects. Thus, though we do not accept the approach of the learned Single Judge in dealing with the issue of suppression of fact of filing of appeal by the respondent no.1, for the reasons recorded hereinabove, we are not setting aside the judgment and order. Since, the respondent no.1 has not assailed the direction of imposing of the costs, he shall deposit the same as directed by the learned Single Judge, in case it is not deposited
48. On the substratum of the foregoing analysis, the Letters Patent Appeal fails, and is dismissed. The time limit fixed by the learned Single Judge for compliance of the judgment dated 01.05.2024 is extended for four weeks from today.
49. As a sequel, the connected civil application stands disposed.
Sd/-
(A. S. SUPEHIA, J) Sd/-
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