http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

CASE NO.: Special Leave Petition (civil)  23385 of 2004

PETITIONER: G.M. Haryana Roadways

RESPONDENT: Jai Bhagwan & Anr

DATE OF JUDGMENT: 05/03/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T

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 allotted No.102A.         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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

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  conditions\005."

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

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 case.         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."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

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  State. 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.