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/-
=============================================
Approved for Reporting Yes No
√
=============================================
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
=============================================
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.
Page 4 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
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.
Page 5 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
(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.
Page 6 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
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 petitionPage 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 CITATIONC/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.
Page 8 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
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.
Page 10 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
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 CITATIONC/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-
Page 13 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
authority to terminate an employee within short notice of 24
hours after the regularization of service, the appellant-
Development Authority was not empowered to invoke the
condition No.2 of the appointment order.
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.
Page 14 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
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.
Page 16 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
(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.
xxxxxxx…
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 terminatedPage 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 CITATIONC/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-
xxxxxxxx….
“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/-
(GITA GOPI,J)
MAHESH/01
Page 27 of 27
Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Wed Jan 29 2025 Downloaded on : Thu Jan 30 00:35:28 IST 2025
[ad_1]
Source link