B.G. Rajagopal Vs. the Assistant Commissioner and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/953305
CourtKarnataka High Court
Decided OnMar-13-2013
Case NumberWrit Petition No. 38257 of 2012 (S-TR)
Judge A.N. VENUGOPALA GOWDA
AppellantB.G. Rajagopal
RespondentThe Assistant Commissioner and Others
Excerpt:
(prayer: this petition is filed under articles 226 and 227 of the constitution of india, praying to direct the respondent nos.2 and 3 to relieve the petitioner of his duty as surveyor from 2nd respondent’s office by virtue of the official memorandum dated 13.8.2012 passed by the government of karnataka and issued through under secretary to government, revenue department (bhu mapana) vide annexure-a so as to enable to report for duty at transferred place at 1st respondent – office and etc.) order 1. this writ petition has been filed to issue direction to the respondent nos.2 and 3 to relieve the petitioner of his duties as surveyor from the office of the 2nd respondent, pursuant to an official memorandum dated 13.08.2012 issued by the 2nd respondent and to direct the 1st respondent to accept the duty report/to take the petitioner to duty as surveyor i.e., at the transferred place. 2. the petitioner is a civil servant working as a surveyor in the department of survey, settlement and land records. the grievance of the petitioner falls within the definition of ‘service’, under s.3(q) of the administrative tribunals act, 1995. in view of the provisions under s.28 of the said act and the decision of the apex court in the case of this l. chandrakumar v/s union of india, 1997(3)scc 261, writ petition being not maintainable could have been rejected by reserving the liberty to the petitioner to seek redressal of his grievance before the karnataka administrative tribunal. since there is suppression of material facts by the petitioner it is necessary to make a reference to the events which have come into being till date and decide the petition. 3. the petitioner was working as a second division surveyor from 03.11.2005, in the office of the tahasildar, bangalore south taluk. by an official memorandum dated 15.06.2010, he was transferred to belgaum and one b.c. lokesh was posted in his place. challenging the said transfer and posting orders, the petitioner filed application no.4030/2010 in the karnataka administrative tribunal (for short kat). by virtue of the interim order of the stay granted on 29.06.2010, he continued to work in the office of the tahasildar, bangalore south taluk. since an averment had been made in the said application that a representation made as against the order of transfer had remained unconsidered, an interim order was passed on 18.09.2010, to consider the petitioner’s representation and to intimate the outcome. an order dated 08.10.2010 having been passed and one m.k. umesh having been posted under an official memorandum dated 08.10.2010, the petitioner assailed the same by filing application no.6531/2010. subsequently, the commissioner for survey, settlement and land records, passed an order as per official memorandum dated 21.04.2012, confirming the earlier transfer of the petitioner to the office of the assistant director of land records, resurvey, belgaum, by stating that in view of posting of another person in the vacant post at bangalore, the representation of the petitioner to post him to a post in bangalore south taluk was not considered. challenging the said official memorandum dated 21.04.2012 the petitioner filed application no.2297/2012 in kat. 4. since all the said applications were relating to the transfer and posting of the petitioner, they were consolidated, heard and were dismissed by a common order dated 18.06.2012, wherein, it has been held as follows: “8. we find that the applicant is working in bangalore for over 6 years and since his term had ended long back, he was liable for transfer. though the tribunal had directed the commissioner for survey, settlement and land records to consider the representation of the applicant, the direction has to be treated as considering it in accordance with rules. transfer guidelines stipulate the period of service of a surveyor in one place as 5 years. as rightly pointed out by sri. m. nagarajan, learned additional government advocate that was over long back. therefore, the posting of the respondent no.3 in application no.6531/2010 to the vacant place cannot be faulted and no such direction can be issued by the tribunal to continue the applicant in bangalore, despite the fact that he has already worked for more than six years in bangalore. we do not find any justifiable ground to interfere in the latest order of confirming the earlier order of transfer of applicant to belgaum.” 5. it has been stated in the counter filed to this writ petition that the petitioner with his political influence once again approached the government and the government issued an order dated 13.08.2012, retransferring the petitioner to bangalore from belgaum and in view of the request made by the petitioner to relieve him from duty, the commissioner, who is head of the department and also head of the cadre management authority, verified the records and insisted not to relieve the petitioner. 6. at that stage, the petitioner having filed w.p.no.30846/2012, the writ petition was disposed off by an order dated 29.08.2012, directing the 2nd respondent to give effect to the order of transfer ‘if there is no impediment.’ the commissioner, land survey, having passed an order, based on the said decision, the government has passed an order dated 11.01.2013 (annexure-r4), canceling the earlier order of transfer dated 13.08.2012 (annexure-a). since the order at annexure-a has been cancelled, the main prayer in this writ petition does not survive for consideration. be that as it may. 7. the petitioner being a civil servant had approached kat in the matter of transfer and posting by filing the applications, noticed supra. hence, he could not have filed w.p.no.30846/2012, to issue directions to the 2nd respondent in the matter of relieving him from duty etc. the petitioner has suppressed in w.p.no.30846/2012, the proceedings of all the three applications filed by him in the kat, noticed supra. even in this writ petition, there is complete suppression of the facts relating to the said three applications filed by him and order passed thereon by the kat. the petitioner has resorted to unethical means for achieving his goal. had he approached the tribunal for the relief, which he sought in w.p.no.30846/2012, it was imperative on his part to have stated about the common order dated 18.06.2012 passed in application no.2297/2012 and connected applications. the petitioner by adopting ‘trick and strategy’ has obtained the order dated 29.08.2012 in w.p.no.30846/2012. 8. in the case of welcome hotel v/s state of a.p., (1983) 4 scc 575, apex court has held that a party, which has misled the court in passing the order in its favour, is not entitled to be heard on merits of the case. in the case of s.p. chengal-varaya naidu v/s jagannath, (1994) 1 scc 1, apex court has held that, where a preliminary decree was obtained by withholding important document from the court, the party concerned deserves to be thrown out at any stage of the litigation. in the case of prestige lights ltd., v/s state bank of india – (2007) 8 scc 449, apex court has held that, in exercising the power under article 226 of the constitution of india, the high court is not just a court of law, but is also a court of equity and a person who invokes the high court jurisdiction under article 226 of constitution is duty-bound to place all the facts before the court without any reservation and if there is any suppression of material facts or twisted facts have been placed, then the high court will be fully justified in refusing to entertain the petition filed under article 226 of the constitution of india. it has been held therein as follows:- “33. ……… 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. it 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.” 9. in s.j.s. business enterprises (p) ltd, v/s state of bihar and others, (2004) 7 scc 166, apex court has held as follows:- “13. 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 been suppressed it would have had an effect on the merits of the case.” 10. had the petitioner brought to the notice of this court in w.p.no.30846/2012 about the order as at annexure-r3, passed by the kat on 18.06.2012, the writ petition would not have been entertained. being a civil servant and the petitioner having approached the kat in the matter of redressal of his grievance relating to his service condition, he could not have approached this court in w.p.no.30846/2012. even in this writ petition, the petitioner has wilfully suppressed the facts of his earlier order of transfer, which became the subject matter of consideration in application no.4030/2010 and connected cases, decided on 18.06.2012 by the kat. the petitioner has not approached this court with clean mind and clean hands. in the circumstances, the only inference that can follow is that the petitioner has deliberately suppressed the material facts for achieving his goal of getting relieved from the office of the 2nd respondent and join service in the office of the 1st respondent, wherein, he worked for several years. even otherwise, in view of the official memorandum dated 11.01.2013, as at annexure-r4, issued by the government, the claim made by the petitioner in this writ petition does not survive for consideration. 11. since, the petitioner wasted the time of this court by filing writ petitions which are not maintainable and as he has not come forward with clean hands by disclosing the material facts which he was aware, in a way has abused the process of this court. consequently, it is appropriate to dismiss the writ petition with exemplary costs quantified at rs.10,000/- which is directed to be remitted to the high court legal service committee, within a period of four weeks, failing which, the secretary of the committee would be entitled to realize the same in accordance with law. it is made clear that, if the petitioner were to file an application disclosing all the material facts and question the official memorandum dated 11.01.2013, as at annexure-r4, it is open to the kat to consider the application and decide the same in accordance with law. ordered accordingly.
Judgment:

(Prayer: This Petition is filed under Articles 226 and 227 of the Constitution of India, praying to direct the respondent Nos.2 and 3 to relieve the petitioner of his duty as Surveyor from 2nd respondent’s office by virtue of the Official Memorandum dated 13.8.2012 passed by the Government of Karnataka and issued through Under Secretary to Government, Revenue Department (Bhu Mapana) vide Annexure-A so as to enable to report for duty at transferred place at 1st respondent – office and etc.)

ORDER

1. This writ petition has been filed to issue direction to the respondent Nos.2 and 3 to relieve the petitioner of his duties as Surveyor from the office of the 2nd respondent, pursuant to an official memorandum dated 13.08.2012 issued by the 2nd respondent and to direct the 1st respondent to accept the duty report/to take the petitioner to duty as Surveyor i.e., at the transferred place.

2. The petitioner is a civil servant working as a Surveyor in the Department of Survey, Settlement and Land Records. The grievance of the petitioner falls within the definition of ‘service’, under S.3(q) of the Administrative Tribunals Act, 1995. In view of the provisions under S.28 of the said Act and the decision of the Apex Court in the case of this L. CHANDRAKUMAR V/S UNION OF INDIA, 1997(3)SCC 261, writ petition being not maintainable could have been rejected by reserving the liberty to the petitioner to seek redressal of his grievance before the Karnataka Administrative Tribunal. Since there is suppression of material facts by the petitioner it is necessary to make a reference to the events which have come into being till date and decide the petition.

3. The petitioner was working as a Second Division Surveyor from 03.11.2005, in the office of the Tahasildar, Bangalore South Taluk. By an Official Memorandum dated 15.06.2010, he was transferred to Belgaum and one B.C. Lokesh was posted in his place. Challenging the said transfer and posting orders, the petitioner filed Application No.4030/2010 in the Karnataka Administrative Tribunal (for short KAT). By virtue of the interim order of the stay granted on 29.06.2010, he continued to work in the office of the Tahasildar, Bangalore South Taluk. Since an averment had been made in the said application that a representation made as against the order of transfer had remained unconsidered, an interim order was passed on 18.09.2010, to consider the petitioner’s representation and to intimate the outcome. An order dated 08.10.2010 having been passed and one M.K. Umesh having been posted under an Official Memorandum dated 08.10.2010, the petitioner assailed the same by filing Application No.6531/2010. Subsequently, the Commissioner for Survey, settlement and Land Records, passed an order as per Official Memorandum dated 21.04.2012, confirming the earlier transfer of the petitioner to the office of the Assistant Director of Land Records, Resurvey, Belgaum, by stating that in view of posting of another person in the vacant post at Bangalore, the representation of the petitioner to post him to a post in Bangalore South Taluk was not considered. Challenging the said Official Memorandum dated 21.04.2012 the petitioner filed Application No.2297/2012 in KAT.

4. Since all the said applications were relating to the transfer and posting of the petitioner, they were consolidated, heard and were dismissed by a common order dated 18.06.2012, wherein, it has been held as follows:

“8. We find that the applicant is working in Bangalore for over 6 years and since his term had ended long back, he was liable for transfer. Though the Tribunal had directed the Commissioner for Survey, Settlement and Land Records to consider the representation of the applicant, the direction has to be treated as considering it in accordance with Rules. Transfer guidelines stipulate the period of service of a Surveyor in one place as 5 years. As rightly pointed out by Sri. M. Nagarajan, learned Additional Government Advocate that was over long back. Therefore, the posting of the respondent No.3 in Application No.6531/2010 to the vacant place cannot be faulted and no such direction can be issued by the Tribunal to continue the applicant in Bangalore, despite the fact that he has already worked for more than six years in Bangalore. We do not find any justifiable ground to interfere in the latest order of confirming the earlier order of transfer of applicant to Belgaum.”

5. It has been stated in the counter filed to this writ petition that the petitioner with his political influence once again approached the Government and the Government issued an order dated 13.08.2012, retransferring the petitioner to Bangalore from Belgaum and in view of the request made by the petitioner to relieve him from duty, the commissioner, who is Head of the Department and also Head of the Cadre Management Authority, verified the records and insisted not to relieve the petitioner.

6. At that stage, the petitioner having filed W.P.No.30846/2012, the writ petition was disposed off by an order dated 29.08.2012, directing the 2nd respondent to give effect to the order of transfer ‘if there is no impediment.’ The commissioner, Land Survey, having passed an order, based on the said decision, the Government has passed an order dated 11.01.2013 (Annexure-R4), canceling the earlier order of transfer dated 13.08.2012 (Annexure-A). Since the order at Annexure-A has been cancelled, the main prayer in this writ petition does not survive for consideration. Be that as it may.

7. The petitioner being a civil servant had approached KAT in the matter of transfer and posting by filing the applications, noticed supra. Hence, he could not have filed W.P.No.30846/2012, to issue directions to the 2nd respondent in the matter of relieving him from duty etc. The petitioner has suppressed in W.P.No.30846/2012, the proceedings of all the three applications filed by him in the KAT, noticed supra. Even in this writ petition, there is complete suppression of the facts relating to the said three applications filed by him and order passed thereon by the KAT. The petitioner has resorted to unethical means for achieving his goal. Had he approached the Tribunal for the relief, which he sought in W.P.No.30846/2012, it was imperative on his part to have stated about the common order dated 18.06.2012 passed in Application No.2297/2012 and connected Applications. The petitioner by adopting ‘trick and strategy’ has obtained the order dated 29.08.2012 in W.P.No.30846/2012.

8. In the case of WELCOME HOTEL V/S STATE OF A.P., (1983) 4 SCC 575, Apex Court has held that a party, which has misled the Court in passing the order in its favour, is not entitled to be heard on merits of the case. In the case of S.P. CHENGAL-VARAYA NAIDU V/S JAGANNATH, (1994) 1 SCC 1, Apex Court has held that, where a preliminary decree was obtained by withholding important document from the court, the party concerned deserves to be thrown out at any stage of the litigation. In the case of PRESTIGE LIGHTS LTD., V/S STATE BANK OF INDIA – (2007) 8 SCC 449, Apex Court has held that, in exercising the power under Article 226 of the Constitution of India, the High Court is not just a Court of law, but is also a Court of equity and a person who invokes the High Court jurisdiction under Article 226 of Constitution is duty-bound to place all the facts before the Court without any reservation and if there is any suppression of material facts or twisted facts have been placed, then the High Court will be fully justified in refusing to entertain the petition filed under Article 226 of the Constitution of India. It has been held therein as follows:-

“33. ……… 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. It 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.”

9. In S.J.S. BUSINESS ENTERPRISES (P) LTD, V/S STATE OF BIHAR AND OTHERS, (2004) 7 SCC 166, Apex Court has held as follows:-

“13. 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 been suppressed it would have had an effect on the merits of the case.”

10. Had the petitioner brought to the notice of this Court in W.P.No.30846/2012 about the order as at Annexure-R3, passed by the KAT on 18.06.2012, the writ petition would not have been entertained. Being a civil servant and the petitioner having approached the KAT in the matter of redressal of his grievance relating to his service condition, he could not have approached this Court in W.P.No.30846/2012. Even in this writ petition, the petitioner has wilfully suppressed the facts of his earlier order of transfer, which became the subject matter of consideration in Application No.4030/2010 and connected cases, decided on 18.06.2012 by the KAT. The petitioner has not approached this Court with clean mind and clean hands. In the circumstances, the only inference that can follow is that the petitioner has deliberately suppressed the material facts for achieving his goal of getting relieved from the office of the 2nd respondent and join service in the office of the 1st respondent, wherein, he worked for several years. Even otherwise, in view of the Official Memorandum dated 11.01.2013, as at Annexure-R4, issued by the Government, the claim made by the petitioner in this writ petition does not survive for consideration.

11. Since, the petitioner wasted the time of this Court by filing writ petitions which are not maintainable and as he has not come forward with clean hands by disclosing the material facts which he was aware, in a way has abused the process of this Court. Consequently, it is appropriate to dismiss the writ petition with exemplary costs quantified at Rs.10,000/- which is directed to be remitted to the High Court Legal Service Committee, within a period of four weeks, failing which, the Secretary of the Committee would be entitled to realize the same in accordance with law.

It is made clear that, if the petitioner were to file an application disclosing all the material facts and question the Official Memorandum dated 11.01.2013, as at Annexure-R4, it is open to the KAT to consider the application and decide the same in accordance with law.

Ordered accordingly.