Writ Petition No. 2629/2017

5th February 2020

Petitioner Counsel: Shri B. Lahiri
Respondent Counsel: Shri S. A. Chaudhari
Act Name: Constitution of India, 1950

Cases Cited :
Para 3: Secretary, Department of Personnel, Public Grievances and Pension and another Vs. T.V.L.N. Mallikarjuna Rao, Civil appeal No.10862 of 2014
Paras 3, 9, 10, 20, 21, 22: Madhu Soodan Pasi and others Vs. Union of India and others, Special Leave to Appeal (C) No.24111/2017
Paras 3, 9, 11, 13, 19: State of Punjab and others etc Vs. Rafiq Masih (White Washer) etc., 2015 I CLR 398
Paras 3, 9, 11, 19: Sayed Abdul Qadir Vs. State of Bihar, (2009) 3 SCC 475
Paras 3, 11, 13, 19, 20: Punjab and Haryana High Court and others Vs. Jagdev Singh, 2016 14 SCC 267
Paras 16, 17, 19: Kishore Samrite Vs. State of Uttar Pradesh and others, (2013) 2 SCC 398
Paras 16, 18, 19: Bhaskar Laxman Jadhav and others Vs. Karamveer Kakasaheb Wagh Education Society and others, (2013) 11 SCC 531
Para 17: Dalip Singh Vs. State of U.P. & Ors., (2010) 2 SCC 114
Para 17: Amar Singh Vs. Union of India & Ors., (2011) 7 SCC 69
Para 17: State of Uttaranchal Vs. Balwant Singh Chaufal & Ors., (2010) 3 SCC 402
Para 17: Tilokchand H.B. Motichand & Ors. Vs. Munshi & Anr., 1969 (1) SCC 110
Para 17: A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam & Anr., (2012) 6 SCC 430
Para 17: Chandra Shashi Vs. Anil Kumar Verma, (1995) SCC 1 421
Para 17: Abhyudya Sanstha Vs. Union of India & Ors., (2011) 6 SCC 145
Para 17: State of Madhya Pradesh Vs. Narmada Bachao Andolan & Anr., (2011) 7 SCC 639
Para 17: Kalyaneshwari Vs. Union of India & Anr., (2011) 3 SCC 287)
Para 17: K. D. Sharma Vs. Steel Authority of India Ltd. & Ors., (2008) 12 SCC 481

JUDGEMENT

Ravindra V. Ghuge, J.

1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.

2. These petitioners have putforth prayer clause (a), as under :-
“(a) By a writ of Mandamus or by any other appropriate writ, direction or order, quash and set aside the impugned order dated 10th March, 2017 passed by the Central Administrative Tribunal, Bombay Bench Nagpur in O.A. No.422 of 2016 (Annx.16) as well as order dated 26.05.2016 passed by respondent no.3 (Annex.12) and in the same order direct the respondents not to make recovery of excess amount received by the petitioners towards grant of higher pay scale.”

3. Having considered the extensive submissions of the learned Advocates for the petitioners and the respondents, we have perused the petition paper book and the following judgments/ orders :-
(a) Sayed Abdul Qadir vs State of Bihar, reported in (2009) 3 SCC 475.
(b) State of Punjab and others etc vs Rafiq Masih (White Washer) etc, reported in 2015 I CLR 398.
(c) Secretary, Department of Personnel, Public Grievances and Pension and another vs T.V.L.N. Mallikarjuna Rao (in Civil appeal No.10862 of 2014).
(d) Punjab and Haryana High Court and others vs Jagdev Singh, reported in 2016 14 SCC 267, and
(e) the order dated 04-02-2019 passed by the Hon’ble Apex Court in the matter of Madhu Soodan Pasi and others vs Union of India and others (Special Leave to Appeal (C) No.24111/2017).

4. The Ordnance Factory Board had classified and revised the pay scale of Data Entry Operators to Rs. 11500-1500 and of the Senior Data Entry Operator to Rs.1350-2200. The employees had approached the Central Administrative Tribunal (CAT) at Calcutta, Jabalpur and Hyderabad Benches who ruled that the Data Entry Operators are entitled to the benefit of the pay scale of Rs. 1350- 2200 with effect from 01-01-1986.

5. The petitioners had, therefore, preferred an Original Application No.2142 of 2007, before the Central Administrative Tribunal, Nagpur. By order dated 07-12-2012, the Tribunal disposed off the Original Application and directed the respondents to verify as to whether similarly situated employees have been granted higher pay scale on the basis of any Court order and extend similar benefits to these petitioners, if no such pay scales are granted. The respondents were directed to pass a speaking order and intimate the petitioners.

6. The respondent no.3 herein complied with the directions of the CAT at Mumbai dated 16-04-2013 and granted the pay scale of Rs.1350-2200 to the petitioners after specifically taking individual undertakings from each of the petitioners on 12-04- 2013. This aspect, of the petitioners having executed undertakings declaring that if they suffer any adverse orders from the High Court or the Supreme Court and the issue is decided in favour of the respondents, they will permit the employer to recover the excess amounts from their pay and allowances including retiral benefits. This aspect has been specifically suppressed from this Court and the petitioners have nowhere mentioned in the petition that they had given such an undertaking to the employer so as to recover the amounts paid to them, if they are found to be dis-entitled either by the High Court or the Hon’ble Apex Court.

7. The record reveals that the Secretary, Department of Personnel, Public Grievances and Pension as well as the Union of India and others approached the Hon’ble Supreme Court by filing a bunch of Special Leave Petitions challenging various orders passed by the Central Administrative Tribunal having its Benches in different States. Several petitions were taken up together and, vide judgment dated 09-12-2014, all the judgments delivered by the various Benches of the CAT upholding the claim of the Data Entry Operators Grade-A were quashed and set aside. In the concluding paragraph 32, the Hon’ble Apex Court held as under :-
“32. In view of the findings recorded above we hold that Data Entry Operators Grade-A are not entitled for Scale of pay of Rs. 1350-2200 w.e.f. 1.1.1986 or thereafter merely on the basis of their qualifications or for the fact that they have completed their period of requisite service. We further hold that any decision rendered by any Tribunal or any High Court contrary to our decision is wrong. Further in view of the reasons and findings recorded above while we hold that the respondents are not entitled to the benefit as they sought for before the Tribunal or the High Court, all the impugned orders passed by the CAT Benches and the High Courts in favour of the respondents being illegal are set aside.”
[Emphasis supplied by us]
Consequentially, the judgment of the CAT, Mumbai was set aside within 20 months from the date on which the respondents made the payments to the petitioners. The view expressed by the CAT, Mumbai Bench that Date Entry Operators Grade-A are entitled for the scale of pay of Rs. 13500-2200 with effect from 01-01-1986, was quashed and set aside.

8. The petitioners moved a representation before respondent no.3 praying that the excess amount should not be recovered. Such representation was rejected by an order dated 08-04-2016 and the petitioners were directed to deposit the excess amounts on or before 30-04-2016. The amounts are in between Rs. 3,30,000/- to Rs. 4,35,000/- per petitioner.

9. The petitioners have relied upon the judgment delivered by the Hon’ble Apex Court in the matters of Syed Abdul Qadir (supra) and Rafiq Masih (supra). The strenuous contention of the petitioners is that the amounts paid to them should not be recovered as they are not at fault and they have not played any mischief on the Management in order to facilitate the payment of such amounts. It is submitted that in all such cases across India, the orders passed by the CAT and various High Courts granting such pay scales to the Data Entry Operators, have been set aside and it is finally ruled that none of such orders would be sustained. However, a copy of the order dated 04-02-2019 is now shown to us, passed by the Hon’ble Apex Court, in which the following order has been passed in the matter of Madhu Soodan Pasi and others (supra) -
“Leave granted.
As the recovery was rendered in the year 2014 for the payment that was made during the period 1986- 1993, and the appellants could not be said to be responsible for the payment made.
Consequently, in the peculiar facts and circumstances of the case, we set aside the recovery part. Accordingly, the appeal is allowed.”

10. It is contended that as the Hon’ble Supreme Court has set aside the recovery part in the case of Madhu Soodan Pasi and others (supra), the same relief be granted to the petitioners. The petitioners are unable to state as to when the payments were made to Madhu Soodan Pasi and others, though it pertains to the pay scale that was made applicable from 1986.

11. The learned Advocate of the respondents submits that the law laid down in the matters of Syed Abdul Qadir (supra) and Rafiq Masih (supra), would not be applicable to this case in view of the judgment delivered by the Hon’ble Apex Court subsequently in the matter of Punjab and Haryana High Court and others vs Jagdev Singh (supra), wherein it was specifically noted that in a case in which an employee tenders an undertaking that he would refund the amount if it is noticed that he was erroneously paid excess amounts, there cannot be an order restraining the recovery and the employer would be entitled to carry out such recovery.

SUPPRESSION OF FACT

12. These petitioners have suppressed the fact from this Court that each of them had executed an undertaking. After the respondents exposed the petitioners through their affidavit-in-reply by placing the undertakings on record that the petitioners have tried to cover up by filing a rejoinder. They admit for the first time that they had actually issued undertakings binding themselves to refund the amount. Considering the above, we would first prefer to deal with the issue of suppression of fact and the attempt made by the petitioners to mislead this Court when the first order was passed by this Court on 27-04-2017.

13. The issue of undertaking given was dealt with in the judgment delivered by the Hon’ble Apex Court in the matter of Punjab and Haryana High Court and others vs Jagdev Singh (supra). The Hon’ble Apex Court, while dealing with the said case, specifically recorded that each officer concerned had submitted an undertaking to the High Court of Punjab and Haryana that any excess amount which may be found to have been paid, will be refunded to the Government either by adjustment against future payments due or otherwise. The Hon’ble Apex Court noticed that the High Court of Punjab and Haryana had held against such recovery by its judgment dated 01-08-2005, by placing reliance upon the judgment delivered in the case of Rafiq Masih (supra). Considering the same, the Hon’ble Apex Court held in the said case in paragraphs 10, 11, 12 and 13 as under :-
“10. In State of Punjab & Ors etc vs. Rafiq Masih (White Washer) etc. this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law :
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.” (emphasis supplied)
11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.
12. For these reasons, the judgment of the High Court which set aside the action for recovery is sustainable. However we are of the view that the recovery should be made in reasonable instalments, We direct that the recovery be made in equated monthly instalments spread over a period of two years.
13. The judgment of the High Court is accordingly set aside. The Civil Appeal shall stand allowed in the above terms. There shall be no order as to costs.”

14. It is, thus, apparent in view of the crystallized law that if an employee tenders an undertaking binding himself to refund the excess amounts if he is subsequently found dis-entitled, recovery of such amounts cannot be set aside. This judgment has been delivered on 29-07-2016.

15. The respondent Management in the cases in hand have specifically taken undertakings from each of the petitioners on 12-04-2013 and, thereafter, released their payments on 16-04-2013. In less than 20 months, the Hon’ble Apex Court quashed and set aside the judgment delivered in favour of similar employees vide judgment dated 09-12-2014 and it was specifically recorded by the Hon’ble Apex Court that “in view of the findings recorded above we hold that Data Entry Operators Grade-A are not entitled for scale of pay of Rs. 13500-2200 w.e.f. 1.1.1986 or thereafter merely on the basis of their qualifications or for the fact that they have completed their period of requisite service. We therefore further hold any decision rendered by any Tribunal or any High Court contrary to our decision is wrong. Further in view of the reasons and findings recorded above while we hold that the respondents are not entitled to the benefit as they sought for before the Tribunal or the High Court, all the impugned orders passed by the CAT Benches and the High Courts in favour of the respondents being illegal are set aside”.

16. Though the learned Counsel for the petitioners has attempted to cover up a serious act committed by the petitioners of suppressing the undertakings tendered by them, we find that the conduct of these petitioners is squarely covered by the judgments delivered by the Hon’ble Apex Court in the matters of Kishore Samrite V State of Uttar Pradesh and others, reported in (2013) 2 SCC 398 and Bhaskar Laxman Jadhav and others vs Karamveer Kakasaheb Wagh Education Society and others, reported in (2013) 11 SCC 531.

17. In the case of Kishore Samrite (supra), the Hon’ble Apex Court has held that a litigant who misleads the Court should not be granted any relief even if he may have a case on merits. The Hon’ble Apex Court has held in paragraphs 32, 34, 35, 36, 37 and 38 as under :-
“32.1. Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of facts and came to the courts with ‘unclean hands’. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor entitled to any relief.
32.2. The people, who approach the Court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.
32.3. The obligation to approach the Court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court.
32.4. Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains.
32.5. A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final.
32.6. The Court must ensure that its process is not abused and in order to prevent abuse of the process the court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the Court would be duty bound to impose heavy costs.
32.7. Wherever a public interest is invoked, the Court must examine the petition carefully to ensure that there is genuine public interest involved. The stream of justice should not be allowed to be polluted by unscrupulous litigants.
32.8. The Court, especially the Supreme Court, has to maintain strictest vigilance over the abuse of the process of court and ordinarily meddlesome bystanders should not be granted “visa”. Many societal pollutants create new problems of unredressed grievances and the Court should endure to take cases where the justice of the lis welljustifies it. [Refer : Dalip Singh v. State of U.P. & Ors. (2010) 2 SCC 114; Amar Singh v. Union of India & Ors. (2011) 7 SCC 69 and State of Uttaranchal v Balwant Singh Chaufal & Ors. (2010) 3 SCC 402].
34. It has been consistently stated by this Court that the entire journey of a Judge is to discern the truth from the pleadings, documents and arguments of the parties, as truth is the basis of the justice-delivery system.
35. With the passage of time, it has been realised that people used to feel proud to tell the truth in the Courts, irrespective of the consequences but that practice no longer proves true, in all cases. The Court does not sit simply as an umpire in a contest between two parties and declare at the end of the combat as to who has won and who has lost but it has a legal duty of its own, independent of parties, to take active role in the proceedings and reach at the truth, which is the foundation of administration of justice. Therefore, the truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the Courts to become active seekers of truth. To enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, prevarication and motivated falsehood, must be appropriately dealt with. The parties must state forthwith sufficient factual details to the extent that it reduces the ability to put forward false and exaggerated claims and a litigant must approach the Court with clean hands. It is the bounden duty of the Court to ensure that dishonesty and any attempt to surpass the legal process must be effectively curbed and the Court must ensure that there is no wrongful, unauthorised or unjust gain to anyone as a result of abuse of the process of the Court. One way to curb this tendency is to impose realistic or punitive costs.
36. The party not approaching the Court with clean hands would be liable to be non-suited and such party, who has also succeeded in polluting the stream of justice by making patently false statements, cannot claim relief, especially under Article 136 of the Constitution. While approaching the court, a litigant must state correct facts and come with clean hands. Where such statement of facts is based on some information, the source of such information must also be disclosed. Totally misconceived petition amounts to abuse of the process of the court and such a litigant is not required to be dealt with lightly, as a petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of the process of the court. A litigant is bound to make “full and true disclosure of facts”. (Refer : Tilokchand H.B. Motichand & Ors. v. Munshi & Anr. [1969 (1) SCC 110]; A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam & Anr. [(2012) 6 SCC 430]; Chandra Shashi v. Anil Kumar Verma [(1995) SCC 1 421]; Abhyudya Sanstha v. Union of India & Ors. [(2011) 6 SCC 145]; State of Madhya Pradesh v. Narmada Bachao Andolan & Anr. [(2011) 7 SCC 639]; Kalyaneshwari v. Union of India & Anr. [(2011) 3 SCC 287)].
37. The person seeking equity must do equity. It is not just the clean hands, but also clean mind, clean heart and clean objective that are the equi-fundamentals of judicious litigation. The legal maxim jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem, which means that it is a law of nature that one should not be enriched by the loss or injury to another, is the percept for Courts. Wide jurisdiction of the court should not become a source of abuse of the process of law by the disgruntled litigant. Careful exercise is also necessary to ensure that the litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose the true facts and approach the court with clean hands.
38. No litigant can play ‘hide and seek’ with the courts or adopt ‘pick and choose’. True facts ought to be disclosed as the Court knows law, but not facts. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is impermissible to a litigant or even as a technique of advocacy. In such cases, the Court is duty bound to discharge rule nisi and such applicant is required to be dealt with for contempt of court for abusing the process of the court. {K.D. Sharma v. Steel Authority of India Ltd. & Ors. [(2008) 12 SCC 481].

18. In the case of Bhaskar Laxman Jadhav and others (supra), the Hon’ble Apex Court concluded that it is for the Court to note as to whether the litigant has suppressed any material information. It is not for the litigant to decide as to whether he could filter the information and convey to the Court only those facts which are favourable to him. The intention behind disclosure of all facts is that the litigant must come to Court with clean hands and must disclose all the material facts to the Court and any suppression of material facts which will affect the adjudication of proceeding and possibly turn or change the view of the Court, would amount to failure in disclosing the material information.

19. We find that the petitioners have shrewdly suppressed the information that they have tendered individual undertakings to the respondent Management permitting them to recover the excess amounts from their salaries or retiral benefits. This would indicate that they were prepared for recovery of excess amount even post- retirement as they declared that the Management could recover it even from their retiral benefits. The intent and object of the petitioners in suppressing such material facts was that our decision would have surely turned in favour of the petitioners if there would have been no undertakings on record keeping in view the law laid down in the matters of Syed Abdul Qadir (supra) and Rafiq Masih (supra). If undertakings were tendered by the petitioners, these two judgments, would not have applied to their cases and they would have been squarely covered by the view taken by the Hon’ble Apex Court in the case of Punjab and Haryana High Court and others vs Jagdev Singh (supra). The petitioners, therefore, stood to gain a big advantage by suppressing the material information and this, in our considered view, is an act aimed at misleading us with the intent and object of getting favourable orders from this Court. In this fact situation, the petition deserves to be dismissed considering the law laid down in Kishore Samrite (supra) and Bhaskar Laxman Jadhav and others (supra).

DISTINGUISHING FACTORS IN THIS CASE

20. The learned Counsel for the petitioners placed reliance on the order dated 04-07-2019 in the case of Madhu Soodan Pasi and others (supra). We find that the Hon’ble Apex Court has specifically recorded that the recovery was ordered in 2014 for the payments that were made during the period 1986-1993.

21. Dealing with the case of Madhu Soodan Pasi and others (supra), we find that the distinguishing features in this case are as follows :-
(a) Payments in case of Madhu Soodan Pasi and others (supra) were made in 1986-1993. Per contra, in the instant case, the payment was made on 16-04-2013.
(b) There is no information to indicate whether Madhu Soodan Pasi and others had given specific undertakings to their employers that they would refund the amounts.
(c) In the instant case, these petitioners had specifically tendered undertakings dated 12-04-2013, declaring that they would refund the benefits either from their pay and allowances or from their retirement benefits. It is based on such undertakings that the payments were immediately released on 16-04-2013 owing to the order of CAT Mumbai dated 07-12-2012.
(d) The Apex Court, within 20 months of such payment, set aside the order of CAT Mumbai on 09-12-2014.

22. It is, therefore, within 20 months of the payments made to the petitioners, that the respondent Management initiated recovery proceedings. On the count of the facts being different, the order passed in Madhu Soodan Pasi and others (supra) dated 04-02-2019, would not apply to this petition. So also for the act of suppression of material information and an attempt to mislead this Court, that the petitioners cannot be granted any relief. The tendency to suppress facts and mislead the Court for getting favourable orders needs to be curbed firmly.

23. In view of the above, this petition is dismissed. Rule is discharged.