Haryana Roadways Vs. Jai Bhagwan & ANR  INSC 374 (5 March 2008)
S.B. Sinha & V.S. Sirpurkar PETITION FOR SPECIAL LEAVE TO APPEAL (C) NO.23385 OF 2004 S.B. Sinha, J.
1. First respondent was appointed as a Driver on daily wages by the
appellant roadways. He was a casual employee. He was being paid wages at the
rate fixed by the Deputy Commissioner, Rohtak.
2. Indisputably, he was continuously working from 4.8.1995. Allegedly, he
abandoned the service. First Respondent's contention, however, is that his
services were illegally terminated.
3. First respondent filed an application under Section 2A of the Industrial
Disputes Act, 1947 praying for his reinstatement with full back wages along
with continuity of service and other statutory benefits. The said application was allowed by the Labour Court. Before the Labour
Court, appellant did not adduce any evidence to establish to its contention
that workman himself had left his job. Apart from the fact that he was found to
be working for more than 240 days during the period of 12 months preceding the
date of his termination and furthermore as admittedly the mandatory
requirements of Section 25F of the Act had not been complied with, the learned
labour court also found that some drivers who were junior to him had been
retained in service in violation of the provisions of Section 25G of the Act.
It was, therefore, directed that the respondent be reinstated on his previous
post with continuity of service and full back wages from the date of service of
the notice of demand.
4. The said award appears to have been implemented in part as the first
respondent was reinstated in service by an order dated 10.5.2002 passed by the
General Manager, Haryana Roadways, Rohtak, stating :
"As per Presiding Officer, Labour Court, Rohtak judgment dated
28.2.2000, Shri Jai Bhagwan, Ex. Driver D.W. s/o Shri Ram Kishan is hereby reinstated with immediate effect
along with continuity of service subject to decision of outcome of the CWP/SLP
on the post of Driver on daily wages upto 31.5.2002. He will be paid as per @
fixed by Deputy Commissioner, Rohtak. He is posted at Rohtak & Driver
The terms and conditions of the appointment will remain the same as per
previous order. His services are liable to be terminated at any time without
prior notice or assigning any reason. He can be transferred to any unit of
Transport Department, Haryana."
5. It is a matter of some significance that on the said date, namely,
10.5.2002, no writ petition had been filed. A writ petition was filed
questioning the said award before the High Court of Punjab and Haryana at
Chandigarh only on 27.7.2002. It does not appear that even in the writ
petition, the fact that first respondent had been reinstated in service in term
of the award of the learned Labour Court was disclosed. The said writ petition
was summarily dismissed by an order dated 23.9.2002.
6. Relying on or on the basis of a purported scheme for regularization, the
services of the first respondent were regularized, stating : "In pursuance of the Transport Commissioner, Haryana, letter
No.1224-45/A2/E3 dated 23.3.1998 and letter No.3471-90/A2/E3 dated 6.7.1999. Your services are hereby regularized as driver w.e.f. 10.5.2002 after
completing 2 years of service in the scale of Rs.4000-100-4800-EB-100- 6000
subject to final outcome of decision in CWP/SLP on the following terms and
7. The special leave petition was filed before the Court on 13.9.2004 with
an application for condonation of 153 days' delay. In the List of Dates filed
with the SLP, the fact that the first respondent had been reinstated in service
or that his services had been regularized had not been disclosed. To crown all,
a prayer for interim relief was made to the following effect :
"It is, therefore, respectfully prayed that Your Lordships may
graciously be pleased to grant ad interim ex parte stay of the operation of the
final judgment and Order dated 23.9.2002 of the High Court of Punjab and Haryana
at Chandigarh in CWP No.15317 of 2002."
8. A notice in this matter was issued by this Court on 1.11.2004. First
Respondent in his counter affidavit brought the aforementioned facts to the
notice of this Court.
When the matter was heard on 7.12.2007, this Court observed : "When the matter was called out learned counsel for the respondents has
produced before us a letter dated 21.6.2004 whereby the services of respondent
No.1 have been regularized as driver with effect from 20.5.2002. The said fact
has not been mentioned in the list of dates. It appears that questioning the
award passed by the Industrial ribunal-cum-Labour Court, Rohtak, a writ
petition was filed before the Punjab and Haryana High Court which was dismissed
by an order dated 23.9.2002. When the matter came up before this Court, this
Court not only issued notice on the special leave petition but also issued
notice on the prayer for interim relief.
It is, therefore, evident that, on the one hand, the petitioner has been
questioning the jurisdiction of the Industrial Court to direct reinstatement
with full back-wages of the workman and, on the other, it itself has been
passing such orders.
One of the grounds taken in the special leave petition is that the
appointment of respondent No.1 in service was not on a sanctioned post and he
had abandoned the job on his own during the period of question.
Let notice be issued to the petitioner as to why an appropriate order shall
not be passed against the administration of the Haryana Roadways, Rohtak, in
view of the fact that they are taking one stand before the Court but acting
otherwise on the administration side as also withholding the material fact
before the court.
Affidavit be filed before 7th January, 2008.
Put up the matter on 16th January, 2008."
9. Pursuant to the said directions, an affidavit has been filed on 8.1.2008
stating that there was a communication gap between the Department and the
counsel for the petitioner. No explanation had been offered why material facts,
as noticed hereinbefore, had not been disclosed in the list of dates.
10. Mr. Manjit Singh, learned Additional Solicitor General appearing on
behalf of the petitioner, would submit that non-disclosure of the said facts
was not intentional. We do not accept the said explanation. We have noticed
hereinbefore that the writ petition was filed before the High Court after a
period of about one year and five months. Even prior thereto, the respondent
was reinstated in service.
11. We have also noticed that the Special Leave Petition was barred by 153
days, but despite the same the aforementioned orders dated 10.5.2002
reinstating the first respondent and that of 21.6.2004 regularising his
services were not brought to the notice of the court. The delay occurred in
filing the SLP was, in fact, about 721 days. However, it appears that 478 days
time was taken for obtaining the certified copy of the order of the High Court
which also appears to be a bit unusual.
12. We fail to understand how even in a case of this nature where the State
pretended to be so serious in obtaining a principle of law determined by this
Court, such a delay took place both in filing the writ petition as also the
Special Leave Petition.
Suppression of material fact is viewed seriously by the Superior Courts
exercising their discretionary jurisdiction. In S.J.S. Business Enterprises (P)
Ltd. v. State of Bihar and Ors. [(2004)7SCC166], this court on suppression of
fact held :
"As a general rule, suppression of a material fact by a litigant
disqualifies such litigant from obtaining any relief. This rule has been
evolved out of the need of the Courts to deter a litigant from abusing the
process of Court by deceiving it.
But the suppressed fact must be a material one in the sense that had it not
bean suppressed it would have had an effect on the merits of the case."
The said observation was quoted with approval by one of us in Arunima Baruah
v. Union of India (UOI) and Ors. [(2007) 6 SCC 120], wherein the question which
was raised was: How far and to what extent suppression of fact by way of non-
disclosure would affect a person's right of access to justice? The court
notices that so as to enable it to refuse to exercise its discretionary
jurisdiction, the 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
Recently, in Prestige Lights Ltd. v. State Bank of India [(2007) 8 SCC 449],
this court held :
"The High Court is exercising discretionary and extraordinary
jurisdiction under Article 226 of the Constitution. Over and above, a Court of
Law is also a Court of Equity. It is, therefore, of utmost necessity that when
a party approaches a High Court, he must place all the facts before the Court
without any reservation. If there is suppression of material facts on the part
of the applicant or twisted facts have been placed before the Court, the Writ
Court may refuse to entertain the petition and dismiss it without entering
into merits of the matter."
Had the aforementioned facts been brought to the notice of this Court, the
Special Leave Petition might have been dismissed summarily. Even delay in
filing the same might not have been condoned. The Court was not required to
waste so much of time when the State itself had, for all intent and purport,
accepted the award.
13. Furthermore, the State was guilty of serious delay and latches. We,
therefore, are of the opinion that for suppression of fact of such a nature and
that too at the instance of the State must be viewed seriously. We hope and
trust that in future the State shall take necessary measures in pursuing its
matter before the Superior Court keeping in view the conduct expected of a
14. We, therefore, direct that not only this special leave petition should
be dismissed but exemplary costs should also be awarded in the matter. The cost
is quantified at Rs.1,00,000/- (Rupees one lac only). As the respondent had not
appeared today, we are of the opinion that the cost should be paid to the
National Legal Services Authority. The amount may be deposited with the
Member-Secretary, National Legal Services Authority within a period of four
weeks failing which it would be entitled to realize the same in accordance with
law with interest at the rate of 12% per annum.