K.D.Sharma vs Steel Authorities Of India Ltd.& Ors

2

3. Shortly stated the facts of the case

are that respondent No. 1, Steel Authority of

India Ltd. (`SAIL' for short) issued tenders

for raising, transporting and loading of iron

ore lump and fines into railway wagons at Kalta

Iron Mine. The tender was required to be

submitted in two parts: (i) Techno-Commercial

Parameters (Part-I) and (ii) Price Bid (Part-

II). Price bid of the tender was to be opened

only after opening of the Techno-Commercial

Parameters and if the bidder was found

qualified. In response to the first notice

dated June 5, 2000, 19 tender papers were sold.

The authorities, however, received response

only from 10 persons. Techno-Commercial

Parameters (Part-I) was opened and it was found

that only one bidder, namely, M/s Ores India

Pvt. Ltd. (respondent NO. 2 herein) was

qualified. The process, therefore, had to be

cancelled because for opening of Price Bid

(Part-II), minimum three Techno-Commercially

qualified offers ought to have been there as 3

per Clause 7.7 of Purchase/Contract Procedure,

2000. Re-tender was, therefore, issued on

September 8, 2000, but it was also required to

be cancelled owing to `no perceptible

improvement' in the situation. The tender was

floated for the third time, which was

unsuccessful. The fourth notice inviting

tenders was issued on January 22, 2001. It met

with the same fate. Then fifth time, tenders

were invited on May 7, 2001 wherein the

appellant was found eligible and qualified. His

bid was the lowest. The said bid was accepted

and the work was entrusted to him. The

decision taken by the first respondent (SAIL)

came to be challenged by respondent No. 2 in

the High Court of Orissa by filing a Writ

Petition being OJC No. 3508 of 2002. The main

allegation of the petitioner before the High

Court (respondent No. 2 herein) was that first

respondent (SAIL) cancelled previous four

notices inviting tenders only with a view to

oblige the appellant and to entrust work to him 4

who could not qualify himself earlier for want

of requisite eligible criteria in tender

process. Ultimately, the standard as prescribed

earlier was relaxed and lowered down in the 5th

tender notice. When the present appellant

became eligible and qualified, the tenders were

opened and his bid was illegally accepted by

SAIL. The petition was heard on merits and the

High Court vide its judgment and order dated

May 30, 2002 dismissed the petition.

Respondent No. 2, however, came to know that he

was eligible and yet his case was not

considered. He, therefore, filed a review in

the High Court which was registered as Review

Petition No. 4 of 2002. By a judgment and

order dated February 3, 2003, the Division

Bench allowed the Review Petition and directed

the authorities (SAIL) to open fourth tender

and consider the case of the petitioner

(respondent No. 2) and respondent No. 3

(appellant) afresh in accordance with law

within a period of one month from the receipt 5

of the writ. The above order was challenged by

the appellant by filing Special Leave Petition

in this Court. Special Leave Petition was also

filed by SAIL. Both the Special Leave

Petitions, however, were dismissed by this

Court on November 28, 2003.

4. It is alleged by the appellant that

after dismissal of Special Leave Petitions by

this Court, SAIL opened tender in presence of

the second respondent only without intimating

the appellant and in his absence. SAIL also

negotiated the rates with the second respondent

and decided to entrust the work to him.

Meanwhile, several applications were filed

before the High Court for clarification and/or

modification/ alteration of the order passed in

Review Petition. Miscellaneous Case No. 46 of

2004 was filed by respondent No. 2 seeking

implementation of the order of the High Court

dated February 3, 2003. Miscellaneous Case No.

48 of 2004 was filed by SAIL for clarification

while Miscellaneous Case No. 57 of 2004 was 6

filed by the appellant to decide

disqualification of respondent No. 2.

Miscellaneous Cases 9 and 10 of 2005 were also

said to have been filed requesting the High

Court to dispose of matters in view of

compromise and settlement arrived at between

the parties.

5. The High Court by the impugned order

dated February 16, 2005, disposed of all the

applications on the basis of the settlement

said to have been arrived at between the

parties which was duly recorded in the order

wherein the present appellant was also a party-

respondent. The appellant came to know that

fraud had been committed by the respondents

upon him as well as upon the Court. He,

therefore, filed Miscellaneous Case No. 63 of

2005 on June 28, 2005 to recall the order dated

February 16, 2005 alleging inter alia that

fraud has been perpetrated by the opposite

party on him as well as on the Hon'ble Court.

A prayer was also made to investigate the 7

matter by Central Bureau of Investigation (CBI)

or Vigilance Authorities. Since nothing was

done by the High Court, he again approached

this Court by filing Special Leave Petition

which was registered as Special Leave Petition

(Civil) No. ...... of 2006 (CC 2486 of 2006). The

said petition came up for hearing before this

Court and was dismissed on May 12, 2006 as "not

pressed at this stage". It was observed that

if the petitioner would make a prayer before

the High Court for expeditious disposal of the

application to recall the order, the said

prayer would be considered appropriately and

application would be disposed of accordingly.

It is the case of the applicant that even

thereafter the recall application had not been

placed before the Court and was not decided as

directed by this Court. In the circumstances,

the appellant approached this Court by filing a

Special Leave Petition on September 6, 2006.

6. On October 9, 2006, the matter was

placed before this Court for admission hearing. 8

Notice was issued to the respondents. When the

matter was placed for further hearing on March

8, 2007, the following order was passed;

"Service is complete.

Though served, nobody appears on behalf of respondent No. 2 (original petitioner). With a view to give one more opportunity, list the matter after two weeks".

7. According to the appellant, it is only

after the above order that the wheels moved

very fast. The respondents made all attempts

to get the matter on Board before the High

Court. The Court finally rejected the prayer of

the appellant for recalling of the order and

dismissed the application. According to the

appellant, all those actions were illegal,

contrary to law and deserve interference by

this Court.

8. We have heard the learned counsel for

the parties.

9. Learned counsel for the appellant

contended that fraud has been played upon the 9

Court as well as upon the appellant and all

orders passed by the High Court deserve to be

quashed and set aside only on that ground.

According to the appellant, when Miscellaneous

Petitions were placed before the High Court,

the Court was bound to decide them in

accordance with law after hearing the parties.

Instead, the High Court disposed of all the

petitions on the basis of `so-called'

settlement said to have been arrived at between

the parties. So far as appellant is concerned,

he had never entered into any settlement or

compromise. Mr. C.M. Ramesh, Chairman and

Managing Director of Rithwik Projects who was

earlier representative of the appellant and in

whose favour the appellant had issued Power of

Attorney had joined hands with respondent No. 2

and was virtually won over by him. The

appellant had also revoked and withdrawn Power

of Attorney issued in favour of Ramesh and,

obviously therefore, he had no authority to

represent the appellant and could not have 1

appeared either before SAIL for negotiations

for him or entered into any compromise or

settlement on behalf of the appellant. It was

also contended that though for a substantial

long period, application for recalling of order

instituted by the appellant had not come on

Board and he had to approach this Court making

grievance about non-hearing of the matter,

there was no progress whatsoever. It was only

after the order passed by this Court and

affording an opportunity to the respondent

stating that if he would not appear, an

appropriate order would be passed that

respondent No. 2 got the matter hurriedly

disposed of in the High Court. It was also the

allegation of the appellant that at the time of

hearing of Miscellaneous Cases, a new advocate

appeared on his behalf who was not engaged by

the appellant. Some blank papers on which the

appellant might have singed earlier came to be

utilized for the purpose of making applications

for settlement showing that the appellant was 1

agreeable to such settlement; the settlement

was produced before the Court and on that

basis, the matter were finally disposed of on

the assumption that all the parties had

compromised and amicably settled the matter and

nothing was required to be done. Accordingly

all the three Miscellaneous Petitions Nos. 46,

48 and 57 of 2004 were disposed of. It was

submitted that in these circumstances, the

order passed by the High Court deserves to be

quashed and set aside by remitting the matter

to the High Court so that the recall-

application filed by the appellant be decided

afresh after hearing the parties.

10. The learned counsel for Respondent No.

1-SAIL strongly refuted the allegations

levelled by the appellant. An affidavit-in-

reply is filed denying all the averments and

allegations against SAIL. It was stated that

the order passed by the High Court in Review

Petition was challenged by SAIL, but Special

Leave Petition was dismissed. Thereafter 1

obviously, SAIL was required to act in

accordance with the order passed by the High

Court in the Review Petition and confirmed by

this Court. It was also submitted by learned

counsel for SAIL that bald allegations have

been levelled against SAIL by the appellant

without there being any material whatsoever in

support of such allegations. On the contrary,

all throughout SAIL has acted strictly in

consonance with law. The Counsel stated that

in accordance with the order passed by the High

Court in Review Petition, 4th Tender was

considered, notices were issued to respondent

No. 2 as also to the appellant herein. The

appellant received the notice. He addressed a

letter to SAIL stating therein that he would

remain present in pursuance of the notice

issued by SAIL through his Power of Attorney

and representative Ramesh of Rithwik Projects.

Accordingly, Rithwik Projects through its

Chairman and Managing Director Ramesh appeared

and a decision was taken to entrust contract to 1

respondent No. 2. In the circumstances, it

cannot be said that any fraud has been

committed by SAIL either on the appellant or on

the Court. The counsel for SAIL further stated

that the appellant has not been affected at

all. It was stated that work entrusted to the

appellant was under tender notice 5 and not

under tender notice 4. Period of tender notice

5 was for three years. The said period of

three years was over and the appellant had

completed the said work. Thereafter there was

no right in favour of the appellant nor he

could insist continuance of the contract. The

counsel, therefore, submitted that the appeal

should be dismissed by this Court.

11. Even otherwise, according to the

counsel, no communication was sent at any point

of time by the appellant to SAIL that though

earlier he had issued Power of Attorney in

favour of Ramesh of Rithwik Projects, it was

subsequently withdrawn or revoked and that he

would not represent the appellant in future 1

before SAIL. On the contrary, though notice

was issued by SAIL and received by the

appellant, he did not remain present and sent a

communication to SAIL that Ramesh of Rithwik

Projects would represent him. It was,

therefore, not open to the appellant thereafter

to turn round and make wild allegations against

SAIL nor is he entitled to any relief.

12. On behalf of respondent No. 2 - M/s

Ores India Pvt. Ltd., the counsel contended

that no case whatsoever has been made out by

the appellant so as to interfere with the order

passed by the High Court. According to the

counsel, in fact SAIL had obliged appellant

which was clear from the facts and proved from

the decision in the Review Petition by the High

Court. When 4th tender notice was cancelled,

respondent No. 2 instituted a writ petition

challenging the said action of SAIL.

Meanwhile, 5th tender notice was issued and the

bid of the present appellant was accepted by

SAIL. The petition filed by respondent No. 2 1

in relation to 4th tender notice came to be

dismissed. Subsequently, however, respondent

No. 2 came to know that though respondent No. 2

was eligible and qualified, SAIL had obliged

the present appellant by canceling the process

of 4th tender notice considering other bidders

ineligible and unqualified. He, hence, filed

Review Petition. In Review Petition, the Court

was convinced that the grievance voiced by

respondent No. 2 was correct and the action of

SAIL was wholly illegal and improper. Review

Petition was, therefore, allowed and SAIL was

directed to reconsider the Tender Notice by

treating the respondent No. 2 as eligible and

qualified. Even observations were made by the

High Court against the conduct of officers of

SAIL. The said order was challenged by SAIL as

also by the appellant but this Court did not

interfere. 4th Tender was thereafter

considered. Notices were given to all bidders

including the appellant. The bid of respondent

No. 2 was accepted and the work was entrusted 1

to him. It is, therefore, submitted that the

appellant has no reason or ground to make

grievance against that action and the appeal

filed by him is liable to be dismissed.

13. We have considered rival contentions

of the parties.

14. The learned counsel for the appellant

alleged that fraud had been committed by the

respondents on the appellant as well as on the

Court. Only on that ground, the impugned action

of SAIL granting contract in favour of

respondent No.2 deserves to be set aside.

According to the counsel, Ramesh, Chairman and

Managing Director of Rithwik Projects, in whose

favour the appellant had issued Power of

Attorney, had taken side of respondent No.2.

The Power of Attorney was, therefore, later on

withdrawn by the appellant and yet he was

allowed to be represented for the appellant

before SAIL as also before the High Court and

`so called' compromise and settlement was

arrived at. He was not authorized to do so 1

against the interest of the appellant and on

his representation, the High Court could not

have disposed of Miscellaneous Cases.

15. It is well settled that "fraud avoids

all judicial acts, ecclesiastical or temporal"

proclaimed Chief Justice Edward Coke of England

before about three centuries. Reference was

made by the counsel to a leading decision of

this Court in S.P. Chengalvaraya Naidu (Dead)

by Lrs. V. Jagannath (Dead) by Lrs. & Ors.,

(1994) 1 SCC 1 wherein quoting the above

observations, this Court held that a

judgment/decree obtained by fraud has to be

treated as a nullity by every Court.

16. Reference was also made to a recent

decision of this Court in A.V. Papayya Sastry

& Ors. V. Govt. of A.P. & Ors., (2007) 4 SCC

221. Considering English and Indian cases, one

of us (C.K. Thakker, J.) stated:

"It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a 1

nullity and non est in the eye of law. Such a judgment, decree or order --by the first Court or by the final Court-- has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings".

17. The Court defined fraud as an act of

deliberate deception with the design of

securing something by taking unfair advantage

of another. In fraud one gains at the loss and

cost of another. Even the most solemn

proceedings stand vitiated if they are actuated

by fraud. Fraud is thus an extrinsic collateral

act which vitiates all judicial acts, whether

in rem or in personam.

18. So far as the proposition of law is

concerned, there can be no two opinions. The

learned counsel for the respondents also did

not dispute the principles laid down in the

above decisions as also in several other

judgments. They, however, stated that on the

facts and in the circumstances of the case, the 1

ratio laid down in the above cases has no

application.

19. As already adverted to earlier,

according to SAIL, pursuant to the order passed

by the High Court in Review and after dismissal

of Special Leave Petitions by this Court, it

issued notices to the parties including the

present appellant. Respondent No.2 remained

present for negotiation. The appellant received

the notice but intimated SAIL that Ramesh of

Rithwik Projects would remain present on his

behalf. At no point of time, the appellant had

made any grievance against Ramesh nor he had

informed SAIL that he had withdrawn Power of

Attorney issued earlier in favour of Ramesh.

It, therefore, cannot be said that the

appellant was deceived or cheated, either by

SAIL or by anyone else.

20. The argument of the learned counsel

for the appellant of violation of principles of

natural justice and fair play also has no

force. When notice was issued by SAIL to the 2

appellant and he had informed SAIL by a written

communication that Ramesh would remain present

as his representative, it does not lie in the

mouth of the appellant that SAIL had acted in

breach of natural justice.

21. SAIL in its written submissions

contended that the appeal filed by the

appellant is liable to be dismissed on account

of suppression of material facts and deliberate

misrepresentation by him. An impression was

sought to be created by the appellant,

submitted the counsel, that the appellant could

not complete the work given to him and was

assigned to respondent No.2. It is clear that

after tender notice No. 4 was cancelled,

albeit illegally as held by the High Court and

by this Court, tender notice No. 5 was issued.

The bid of the appellant was accepted and

contract was given to him. It was for 2002-05

i.e. for three years. The appellant was allowed

to complete the said period and the contract

had not been terminated or abruptly 2

discontinued during the said period. It was

over in 2005 by efflux of time. What was done

by SAIL was to implement the order of High

Court in connection with tender notice No. 4

which was not acted upon. In that process,

parties were called for negotiations, offer of

respondent No.2 was accepted and work was given

to him. It is, therefore, not correct to say

that the appellant had suffered. The appellant

wanted to continue the work even though the

period of tender notice No. 5 was over and he

had taken the benefit thereunder. The

appellant had no right or reason to make

grievance so far as tender notice No. 4 was

concerned. Hence, the appellant is not

entitled to any relief.

22. We find considerable force in the

argument of the learned counsel. From the

record, it is clear that tender notice No.4 was

wrongly ignored and no process thereunder was

undertaken by SAIL. What was granted to the

appellant was a contract under tender notice 2

No.5. The appellant was working under tender

notice No.5. Meanwhile, the review of

respondent No.2 against tender notice No.4 was

allowed and after the order passed by this

Court dismissing Special Leave Petitions, SAIL

implemented the said order, bid of respondent

No.2 was accepted and contract was given to

him. To us, SAIL is right in urging that the

appellant cannot insist that even under the

contract under tender notice No.5, he should be

allowed to continue the work. We, therefore,

see no substance in the argument of the learned

counsel for the appellant and the contention is

rejected.

23. The learned counsel for SAIL is also

right in urging that the appellant has not

approached the Court with clean hands by

disclosing all facts. An impression is sought

to be created as if no notice was ever given to

him nor he was informed about the consideration

of cases of eligible and qualified bidders in

pursuance of the order passed by the High Court 2

in Review and confirmed by this Court. The true

facts, however, were just contrary to what was

sought to be placed before the Court. A notice

was issued by SAIL to the appellant, he

received the notice, intimated in writing to

SAIL that he had authorized Ramesh of Rithwick

Projects to appear on his behalf. Ramesh duly

appeared at the time of consideration of bids,

bid of respondent No.2 was found to be lowest

and was accepted and contract was given to him

(under tender notice No.4). The said contract

had nothing to do with tender notice No.5 and

contract thereunder which had been given to the

appellant herein and he had completed the work.

Thus, it is clear that the appellant had not

placed all the facts before the Court clearly,

candidly and frankly.

24. The jurisdiction of the Supreme Court

under Article 32 and of the High Court under

Article 226 of the Constitution is

extraordinary, equitable and discretionary.

Prerogative writs mentioned therein are issued 2

for doing substantial justice. It is,

therefore, of utmost necessity that the

petitioner approaching the Writ Court must come

with clean hands, put forward all the facts

before the Court without concealing or

suppressing anything and seek an appropriate

relief. If there is no candid disclosure of

relevant and material facts or the petitioner

is guilty of misleading the Court, his petition

may be dismissed at the threshold without

considering the merits of the claim.

25. The underlying object has been

succinctly stated by Scrutton, L.J., in the

leading case of R. v. Kensington Income Tax

Commissioners, (1917) 1 KB 486 : 86 LJ KB 257 :

116 LT 136 in the following words:

"[I]t has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts- it says facts, not law. He must not misstate the law if he can help it; the Court is supposed 2

to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it the Court will set aside any action which it has taken on the faith of the imperfect statement".

(emphasis supplied)

26. A prerogative remedy is not a matter

of course. While exercising extraordinary power

a Writ Court would certainly bear in mind the

conduct of the party who invokes the

jurisdiction of the Court. If the applicant

makes a false statement or suppresses material

fact or attempts to mislead the Court, the

Court may dismiss the action on that ground

alone and may refuse to enter into the merits

of the case by stating "We will not listen to

your application because of what you have

done". The rule has been evolved in larger

public interest to deter unscrupulous litigants

from abusing the process of Court by deceiving

it.

2

27. In Kensington Income Tax Commissioner,

Viscount Reading, C.J. observed:

"Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the applicant was not candid and did not fairly state the facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that this Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit".

(emphasis supplied)

28. The above principles have been

accepted in our legal system also. As per 2

settled law, the party who invokes the

extraordinary jurisdiction of this Court under

Article 32 or of a High Court under Article 226

of the Constitution is supposed to be truthful,

frank and open. He must disclose all material

facts without any reservation even if they are

against him. He cannot be allowed to play `hide

and seek' or to `pick and choose' the facts he

likes to disclose and to suppress (keep back)

or not to disclose (conceal) other facts. The

very basis of the writ jurisdiction rests in

disclosure of true and complete (correct)

facts. If material facts are suppressed or

distorted, the very functioning of Writ Courts

and exercise would become impossible. The

petitioner must disclose all the facts having a

bearing on the relief sought without any

qualification. This is because, "the Court

knows law but not facts".

29. If the primary object as highlighted

in Kensington Income Tax Commissioners is kept

in mind, an applicant who does not come with 2

candid facts and `clean breast' cannot hold a

writ of the Court with `soiled hands'.

Suppression or concealment of material facts is

not an advocacy. It is a jugglery,

manipulation, maneuvering or misrepresentation,

which has no place in equitable and prerogative

jurisdiction. If the applicant does not

disclose all the material facts fairly and

truly but states them in a distorted manner and

misleads the Court, the Court has inherent

power in order to protect itself and to prevent

an abuse of its process to discharge the rule

nisi and refuse to proceed further with the

examination of the case on merits. If the Court

does not reject the petition on that ground,

the Court would be failing in its duty. In

fact, such an applicant requires to be dealt

with for contempt of Court for abusing the

process of the Court.

30. Let us consider some important

decisions on the point:

2

31. In State of Haryana v. Karnal

Distillery, (1977) 2 SCC 431, almost an agreed

order was passed by the Court that on expiry of

the licence for manufacturing of liquor on

September 6, 1976, the distillery would cease

to manufacture liquor under the licence issued

in its favour. Then, the Company filed a

petition in the High Court for renewal of

licence for manufacture of liquor for 1976-77,

and the Court granted stay of dispossession. In

appeal, the Supreme Court set aside the order

granting stay of dispossession on the ground

that the petitioner-Company in filing the

petition in the High Court had misled it and

started the proceedings for oblique and

ulterior motive.

32. In Vijay Kumar v. State of Haryana,

(1983) 3 SCC 333, it was the case of the

petitioners that the provisional admissions

granted to them were not cancelled and they

were continuing their studies as post-graduate

students in Medical College on the relevant 3

date. On the basis of that statement, they

obtained an order of status quo. The Supreme

Court ordered inquiry and the District Judge

was asked to submit his report whether the

provisional admissions granted to the

petitioners were continued till October 1, 1982

or were cancelled. The report revealed that to

the knowledge of the petitioners their

provisional admissions were cancelled long

before October 1, 1982 and thus, the

petitioners had made false representation to

the Court and obtained a favourable order.

33. Dismissing the petition, this Court

observed:

"But for the misrepresentation this Court would never have passed the said order. By reason of such conduct they have disentitled themselves from getting any relief or assistance from this Court and the Special Leave Petitions are liable to be dismissed".

34. Deprecating the reprehensible conduct

of the petitioners as well as of their counsel,

the Court stated;

3

"Before parting with the case, however, we cannot help observing that the conduct or behaviour of the two petitioners as well as their counsel (Dr. A.K. Kapoor who happens to be a medico-legal consultant practising in Courts) is most reprehensible and deserves to be deprecated. The District Judge's report in that behalf is eloquent and most revealing as it points out how the two petitioners and their counsel, (who also gave evidence in support of the petitioner's case before the District Judge) have indulged in telling lies and making reckless allegation of fabrication and manipulation of records against the College Authorities and how in fact the boot is on their leg. It is a sad commentary on the scruples of these three young gentlemen who are on the threshold of their carriers. In fact, at one stage we were inclined to refer the District Judge's report both to the Medical Council as well as the Bar Council for appropriate action but we refrained from doing so as the petitioners' counsel both on behalf of his clients as well as on his own behalf tendered unqualified apology and sought mercy from the Court. We, however, part with the case with a heavy heart expressing our strong disapproval of their conduct and behaviour..."

(emphasis supplied)

35. In Welcom Hotel v. State of A.P.,

(1983) 4 SCC 575, certain hoteliers filed a 3

petition in this Court under Article 32 of the

Constitution challenging the maximum price of

foodstuffs fixed by the Government contending

that it was uneconomical and obtained ex parte

stay order. The price, however, was fixed as

per the agreement between the petitioners and

the Government but the said fact was

suppressed.

36. Describing the fact as material, the

Court said:

"Petitioners who have behaved in this manner are not entitled to any consideration at the hands of the Court".

37. In Agricultural & Process Food

Products v. Oswal Agro Furnae, (1996) 4 SCC

297, the petitioner filed a petition in the

High Court of Punjab and Haryana which was

pending. Suppressing that fact, it filed

another petition in the High Court of Delhi and

obtained an order in its favour. Observing that

the petitioner was guilty of suppression of 3

`very important fact', this Court set aside the

order of the High Court.

38. In State of Punjab v. Sarav Preet,

(2002) 9 SCC 601, A obtained relief from the

High Court on her assertion that a test in a

particular subject was not conducted by the

State. In an appeal by the State, it was stated

that not only the requisite test was conducted

but the petitioner appeared in the said test

and failed. Observing that the petitioner was

under an obligation to disclose the said fact

before the High Court, this Court dismissed the

petition.

39. In Union of India v. Muneesh Suneja,

(2001) 3 SCC 92, the detenu challenged an order

of detention under the Conservation of Foreign

Exchange and Prevention of Smuggling Activities

Act, 1973 (COFEPOSA) by filing a petition in

the High Court of Delhi which was withdrawn.

Then he filed a similar petition in the High

Court of Punjab & Haryana wherein he did not

disclose the fact as to filing of the earlier 3

petition and withdrawal thereof and obtained

relief. In an appeal by the Union of India

against the order of the High Court, this Court

observed that non-disclosure of the fact of

filing a similar petition and withdrawal

thereof was indeed fatal to the subsequent

petition.

40. A special reference may be made to a

decision of this Court in All India Sate Bank

Officers Federation v. Union of India, 1990

Supp SCC 336. In that case, promotion policy of

the Bank was challenged by the Federation by

filing a petition in this Court under Article

32 of the Constitution. It was supported by an

affidavit and the contents were affirmed by the

President of the Federation to be true to his

`personal knowledge'. It was stated: "The

petitioners have not filed any other similar

writ petition in this Honourable Court or any

other High Court".

41. In the counter-affidavit filed on

behalf of the Bank, however, it was asserted 3

that the statement was `false'. The Federation

had filed a writ petition in the High Court of

Andhra Pradesh which was admitted but interim

stay was refused. Another petition was also

filed in the High Court of Karnataka. It was

further pointed out that Promotion Policy was

implemented and 58 officers were promoted who

were not made parties to the petition.

42. In affidavit-in-rejoinder, once again,

the stand taken by the petitioner was sought to

be justified. It was stated: "The deponent had

no knowledge of the writ petition filed before

the High Court of Andhra Pradesh, hence as soon

as it came to his knowledge the same has been

withdrawn. Secondly, the petitioners even today

do not know the names of all such 58 candidates

who have been promoted/favoured". It was

contended on behalf of the Bank that even that

statement was false. Not only the petitioner-

Federation was aware of the names of all the 58

officers who had been promoted to the higher

post, but they had been joined as party- 3

respondents in the writ petition filed in the

Karnataka High Court, seeking stay of promotion

of those respondents. It was, therefore,

submitted that the petitioner had not come with

clean hands and the petition should be

dismissed on that ground alone.

43. `Strongly disapproving' the

explanation put forth by the petitioner and

describing the tactics adopted by the

Federation as `abuse of process of court', this

Court observed:

"There is no doubt left in our minds that the petitioner has not only suppressed material facts in the petition but has also tried to abuse judicial process.

. . .

Apart from misstatements in the affidavits filed before this Court, the petitioner Federation has clearly resorted to tactics which can only be described as abuse of the process of court. The simultaneous filing of writ petitions in various High Courts on the same issue though purportedly on behalf of different associations of the Officers of the Bank, is a practice which has to be discouraged. Sri Sachhar and Sri Ramamurthy wished to pinpoint the necessity and importance of petitions being filed by 3

different associations in order to discharge satisfactorily their responsibilities towards their respective members. We are not quite able to appreciate such necessity where there is no diversity but only a commonness of interest. All that they had to do was to join forces and demonstrate their unity by filing a petition in a Single Court. It seems the object here in filing different petitions in different Courts was a totally different and not very laudable one". (emphasis supplied)

44. `Deeply grieved' by the situation and

adversely commenting on the conduct and

behaviour of the responsible officers of a

Premier Bank of the country, the Court

observed;

"We have set out the facts in this case at some length and passed a detailed order because we are deeply grieved to come across such conduct on the part of an association, which claims to represent high placed officers of a premier bank of this country. One expects such officers to fight their battles fairly and squarely and not to stoop low to gain, what can only be, temporary victories by keeping away material facts from the court. It is common knowledge that, of late, statements are being made in petitions and affidavits recklessly and without 3

proper verification not to speak of dishonest and deliberate misstatements. We, therefore, take this opportunity to record our strong and emphatic disapproval of the conduct of the petitioners in this ease and hope that this will be a lesson to the present petitioner as well as to other litigants and that at least in future people will act more truthfully and with a greater sense of responsibility.

(emphasis supplied)

45. Yet in another case in Vijay Syal &

Anr. v. State of Punjab & Ors., (2003) 9 SCC

401; this Court stated;

"In order to sustain and maintain sanctity and solemnity of the proceedings in law courts it is necessary that parties should not make false or knowingly, inaccurate statements or misrepresentation and/or should not conceal material facts with a design to gain some advantage or benefit at the hands of the court, when a court is considered as a place where truth and justice are the solemn pursuits. If any party attempts to pollute such a place by adopting recourse to make misrepresentation and is concealing material facts it does so at its risk and cost. Such party must be ready to take consequences that follow on account of its own making. At times lenient or liberal 3

or generous treatment by courts in dealing with such matters are either mistaken or lightly taken instead of learning proper lesson. Hence there is a compelling need to take serious view in such matters to ensure expected purity and grace in the administration of justice".

46. In the case on hand, the appellant has

not come forward with all the facts. He has

chosen to state facts in the manner suited to

him by giving an impression to the Writ Court

that an instrumentality of State (SAIL) has not

followed doctrine of natural justice and

fundamental principles of fair procedure. This

is not proper. Hence, on that ground alone, the

appellant cannot claim equitable relief. But we

have also considered the merits of the case and

even on merits, we are convinced that no case

has been made out by him to interfere with the

action of SAIL, or the order passed by the High

Court.

47. For the foregoing reasons, the appeal

deserves to be dismissed and is accordingly

dismissed with costs.

4

......................................................J. (C.K. THAKKER)

NEW DELHI, .........................................................J. JULY 09, 2008. (D.K. JAIN)