when mining lease was granted as per due procedure - it can not be stayed by misapplication of facts - Insofar as the finding of the learned Tribunal that the area was reduced to 24 hectares from 29 hectares only in order to avoid the rigours of public hearing, is totally erroneous. The appellant had no role to play in the same. It is the authorities who recommended approval in respect of only 24 hectares. Insofar as the mandatory distance from the water body is concerned, the authorities upon survey had found that the mandatory distance of 0.25 km is maintained.

NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION 

CIVIL APPEAL NO. 3776 OF 2020

DHRUVA ENTERPRISES        ...APPELLANT(S)

VERSUS

C. SRINIVASULU AND OTHERS    ...RESPONDENT(S)

J U D G M E N T

B.R. GAVAI, J.

1. The appellant has approached this Court being aggrieved

by the impugned judgment and order dated 17th January 2020,

passed by the National Green Tribunal, Principal Bench, Delhi,

thereby allowing the appeal filed by respondent Nos. 1 to 3 and

directing the Ministry of Environment & Forest and Climate

Change to conduct Environment Impact Assessment Appraisal

in terms of EIA Notification 2006, and subsequent amendments

1

thereunder   and   also  to   conduct   public  hearing   and  impose

whatever conditions they may find necessary and appropriate

for carrying out mining operation.  By the impugned judgment

and order, the Tribunal has further directed suspension of the

mining operations until the completion of the said exercise.

2. Facts in brief giving rise to filing of the present appeal are

as under:­

The appellant had applied on 28th  July 2016 for Mining

Lease for Quartz and Feldspar mining over 29 hectares of land

in Sy. No. 330/1, Kalwakole Village, Peddakothapally Mandal,

Mahabubnagar District, State of Telangana.  The total land in

the   said   survey   number   was   109   Acres   and   08   Guntas

(approximately 44 hectares), out of which the appellant had

applied for 29 hectares.   In the application submitted by the

appellant, it was stated that the nearest human habitation was

Yenambetla, existing at a distance of about 1.6 km from the

applied area.  It was further stated in the application that the

2

nearest water body was at a distance of 0.25 km named as

Singotham Lake.

3. The application of the appellant was processed at various

stages   including   the   Revenue   Divisional   Officer   (hereinafter

referred to as the “RDO”), Nagarkurnool, Assistant Director of

Mines and Geology, Mahabubnagar and Director of Mines and

Geology,   Hyderabad,   Government   of   Telangana.     Vide

communication   dated   7th  September   2016,   the   Director   of

Mines   and   Geology,   Hyderabad,   Government   of   Telangana

informed the appellant that after careful examination of the

proposal submitted by the appellant, the Assistant Director of

Mines and Geology, Mahabubnagar had recommended for grant

of   Quarry   Lease   in   favour   of   the   appellant   for   Quartz   and

Feldspar   over   an   area   of   24   hectares   in   Sy.   No.   330/1,

Kalwakole   Village,   Peddakothapally   Mandal,   Mahabubnagar

District, Telangana.   The appellant was directed to submit a

Mining Plan approved by Joint Director of Mines and Geology,

Hyderabad for the proposed area within a period of six months

3

from the date of the said communication.  The appellant was

directed to submit Consent from the Telangana State Pollution

Control Board and also Environmental Clearance (hereinafter

referred to as “EC”) from the Ministry of Environment & Forest

(hereinafter referred to as the “MoEF”) as per the Environment

Impact Assessment Notification (hereinafter referred to as the

“EIA Notification 2006) dated 14th  September 2006 and 15th

January 2016.  It was also stated in the said communication

that if the appellant fails to submit the Approved Mining Plan

within   the   stipulated   period,   it   will   be   presumed   that   the

appellant was not interested in getting the Quarry Lease for the

said   area   and   further   course   of   action   will   be   initiated   in

accordance with law.  Thereafter, the State Environment Impact

Assessment Authority, Telangana (hereinafter referred to as the

“SEIAA”) examined the said proposal in accordance with EIA

Notification 2006 and the subsequent amendments thereof and

exempted the same from the process of public hearing as the

mining   lease   area   was   less   than   25   hectares.     The   SEIAA

4

accorded   EC   on   11th  April   2017,   with   specific   and   general

conditions.

4. Challenging the same, the respondent Nos. 1 to 3 filed an

appeal under Section 16 read with Section 18(1) and Section 15

of the National Green Tribunal Act, 2010 (hereinafter referred to

as the “said Act”) before the National Green Tribunal, Southern

Zone, Chennai being Appeal No. 582 of 2017 (SZ), which was

transferred to National Green Tribunal, Principal Bench, New

Delhi (hereinafter referred to as the “Tribunal”) being Appeal

No. 24 of 2018, wherein a two­fold challenge was made by the

respondent Nos. 1 to 3: first, that the area was reduced from 29

hectares to 24 hectares only in order to avoid the rigours of

public hearing and second, that the Singotham Lake was in

close proximity of the proposed mining area and as such, the

EC granted, was not correct in law.

5. In the said proceedings, the learned Tribunal had passed

an interim order on 24th April 2018, thereby staying the order

challenged   in   the   appeal.     Being   aggrieved   thereby,   the

5

appellant had approached this Court being Civil Appeal No.

8130 of 2019.   This Court vide its order dated 8th  November

2019, requested the learned Tribunal to hear the matter on 22nd

November   2019.     Accordingly,   the   learned   Tribunal   after

hearing the counsel for the parties, found favour with both the

grounds raised by respondent Nos. 1 to 3 and allowed the

appeal   by   passing   the   order   as   aforesaid.     Being   aggrieved

thereby, the appellant has approached this Court.

6. We   have   heard   Mr.   K.V.   Viswanathan,   learned   Senior

Counsel appearing on  behalf  of the  appellant,  Mr. Sandeep

Singh, learned counsel appearing on behalf of respondent Nos.

1 to 3, Ms. Aishwarya Bhati, learned ASG appearing on behalf

of respondent No.4­Union of India and Mr. Dhananjay Baijal,

learned counsel appearing on behalf of respondent No.9­State

Pollution Control Board, Telangana.

7. Mr. Viswanathan, learned Senior Counsel submitted that

the   learned   Tribunal   has   grossly   erred   in   coming   to   the

conclusion that the area was reduced by the appellant from 29

6

hectares to 24 hectares only in order to avoid the rigours of

public hearing.  He submitted that the appellant had no role to

play in such a reduction. As a matter of fact, the appellant had

applied for an area admeasuring 29 hectares.  It was only the

authorities which had reduced the area.  He further submitted

that the ground with regard to Singotham Lake being in the

close proximity to the proposed mining area, is also totally

erroneous.  The learned Senior Counsel, relying on the Google

Maps as well as photographs, would submit that the distance

between the proposed mining area and the Singotham Lake is

0.25 km.  It is therefore submitted that the said distance is in

accordance with the requirements of law.

8. Mr. Viswanathan took us through various documents to

show that while granting EC, the entire procedure required to

be followed under EIA Notification 2006 was followed.   The

proposal   underwent   scrutiny   at   various   stages   and   only

thereafter, the SEIAA had granted EC in favour of the appellant.

7

9. Mr.  Sandeep Singh, learned counsel appearing on behalf

of respondent Nos.1 to 3 submitted that if the distance between

the proposed mining area and the water body is more than 0.25

km,   the   said   respondents   would   not   have   any   objection   of

permitting mining activities.  The learned counsel for the State

as well as the State Pollution Control Board also supported the

case of the appellant.

10. In view of the concession granted by respondent Nos. 1 to

3, we could have very well disposed of the appeal. However,

since the issue involved is with regard to environment, we have

considered the appeal on merits.

11. As   per   the   guidelines   framed   by   the   Government   of

Telangana   dated   19th  January   2015,   for   land   admeasuring

between 15 hectares to 30 hectares, the competent authority,

for issue of ‘No Objection Certificate’ (hereinafter referred to as

the “NOC”), for Mining Lease and Quarry Lease in respect of

Government/Patta Lands, is with the RDO/Sub­Collector. After

the application was made by the appellant for grant of Mining

8

Lease, a letter was addressed by the Assistant Director of Mines

and   Geology,   Mahabubnagar   to   RDO,   Nagarkurnool,

Mahabubnagar on 28th  July 2016.   Vide the said letter, the

RDO was instructed to consider the following aspects while

issuing NOC:­

1. “Extent of Land.

2. Classification of Land.

3. Proximity   to   Forest,   Tank,   Lake   or   Irrigation

Source.

4. Proximity to habitation.

5. Whether mining will affect habitation.

6. Whether   mining   will   affect   agriculture   in

neighbouring lands.”

12. The RDO was required to submit its report within 30 days

from the date of receipt of the said letter.   It further appears

that on 6th August 2016, the Tahsildar, Peddakothapally, after

personally inspecting the site along with the Assistant Revenue

Inspector, Peddakothapally, submitted its report to RDO.  The

relevant part of the said report reads thus:­ 

“In   view   of   the   above   myself   and   ARI   of

Peddakothapally   Mandal   have   been   proceeded   to

the Sy No. 330/1, and found that the said land Sy

No. 330/1 of Kalwakole is a Govt. land (P.P) covered

by hillrock to an extent of Ac 109.08 gts and there

is no objection for allotting the said part of land to

9

M/s Dhruva Enterprises.   Further submitted that

the Mandal surveyor has been prepared sketch and

the extract of Khasra 1954­55, pahani for the year

2015­16   and   same   are   enclosed   herewith.     The

detailed report is as follows:­

1. Extent of Land : AC   109.08

gts.

2. Classification of Land : Govt.   Land

(P.P)

3. Proximity to Forest, Tank,

Lake of Irrigation Source

: The   canal   is

situated 1.00

Km for away

from the said

Sy. No.

4. Proximity to habitation : There   is   no

habitation

nearby.

5. Whether mining will affect

habitation

: Not   affected

to   the

habitation

6. Whether mining will affect

agriculture   in

neighbouring lands

: No,   not

affecting   to

the

Agriculture

lands

I,   therefore,   request   you   to   kindly   lease   may   be

granted in favour of M/s Dhruva Enterprises, rep by

S.  Venkateshwar  Rao   over  the   Sy  No.  330/1   an

extent   109.08   gts   situated   within   the   limits   of

Peddakothapally   mandal   is   feasible   to   lease   the

land.”

10

13. After the report of the Tahsildar was received, the RDO,

Nagarkurnool   granted   ‘NOC’   vide   communication   dated   8th

August 2016.   The relevant part of the said communication

reads thus:­  

“In this regard, the Tahsildar Peddakothapally has

reported that the Sy. No. 330/1, and found that the

said   land   Sy.   No.   330/1   of   Kalwakole   is   a

Government   land   (P.P)   covered   by   hillrock   to   an

extent of Ac. 109.08 gts and there is no objection for

allotting   the   said   part   of   land   to   M/s   Dhruva

Enterprises.     Further,   it   is   submitted   that   the

Mandal Surveyor has been prepared sketch and the

extract   of   Khasra   1954­55,   Pahani   for   the   year

2015­16 and same are enclosed here with.   The

detailed report is as follows:

1.Extent of Land : Ac.   109.08

gts.

2. Classification of Land : Government

Land (P.P)

3. Proximity to Forest, Tank,

Lake of Irrigation Source

: The   canal   is

situated 1.00

KM for away

from the said

Sy. No.

4. Proximity to habitation : There   is   no

habitation

near by, but

existing   1

KM away.

5. Whether mining will affect

habitation

: Not   affected

to   the

11

habitation

6. Whether mining will affect

agriculture   in

neighbouring lands

: No,

agriculture

lands   are

existing   500

Mts.   Away

from the site.

Therefore,   the   Assistant   Director   of   Mines   &

Geology, Mahaboobnagar is requested to grant lease

permission in favour of M/s Dhruva Enterprises,

rep. by S. Venkateshwar Rao over the above Sy. No.

to an extent of Ac. 109.08 gts situated within the

limits   of   Kalwakole   Village   of   Peddakothapally

Mandal as per rules.”

14. Vide   communication   dated   7th  September   2016,   the

Director   of   Mines   and   Geology,   Hyderabad,   Government   of

Telangana granted ‘in­principle’ approval for a Quarry Lease for

Quartz and Feldspar over an extent of 24 hectares.  While doing

so, the Director of Mines and Geology, Hyderabad directed the

appellant   to   submit   a   Mining   Plan   approved   by   the   Joint

Director   of   Mines   and   Geology,   Hyderabad,   Government   of

Telangana within six months from the  date of  issue of the

notice.   It was also directed to submit the Consent from the

State Pollution Control Board, Telangana and EC from MoEF,

as   per   EIA   Notification   2006   and   subsequent   amendments

12

thereof.  The  relevant   part   of  the   said  communication   reads

thus:­  

“After careful examination of the proposals of

the   Asst.   Director   of   Mines   &   Geology,

Mahabubnagar in principle, it has been decided to

grant a Quarry Lease for Quartz and Feldspar over

an   extent   of   24.00   Hect.   in   Sy.   No.   330/1   of

Kalwakole   Village,   Peddakothapally   Mandal,

Mahabubnagar   District   in   favour   of   M/s   Dhruva

Enterprises, Rep: by Sri S. Venkateshwar Rao for a

period   of   20   years   subject   to   submission   of

Approved Mining Plan within a period of (6) months

from the date of issue of this notice as per Rule

12(5)(c)   of   T.S.   Minor   Mineral   Concession   Rules,

1966   alongwith   CFE   from   ESPCB   and

Environmental Clearance from MoEF.

However, the approved mining plan shall also

reflect the restriction to be adopted by the applicant

while   conducting   quarry   operations   due   to   the

existence of structures, like temples railway line,

roads, water bodies such as river, lake etc., and the

stipulated distances as per the various Regulations

prescribed   under   Mines   &   Metalliferous

Regulations, 1961.  The safety measures to be taken

are also to be incorporated.  

In view of the above, M/s. Dhruva Enterprises,

Rep:   by   Sri   S.   Venkateshwar   Rao   is   hereby

requested to submit Mining Plan approved by Joint

Director   of   Mines   &   Geology,   Hyderabad   for   the

proposed precise area within a period of (6) months

from the date of issue of this notice and also along

with   the   Consent   for   Establishment   from   T.S.

Pollution   Control   Board   and   Environmental

Clearance   from   Ministry   of   Environment   and

13

Forests   as   per   Environment   Impact   Assessment

Notification through S.O. 1533, dt: 14.09.2006 read

with S.O. No. 141(E), dated 15.01.2016 to consider

for grant of Quarry lease for Quartz and Feldspar in

the subject area.  If the applicant fails to submit the

Approved Mining Plan within the stipulated period,

it   will   be   presumed   that   the   applicant   is   not

interested   in   getting   the   Quarry   lease   over   the

subject area and further course of action will be

initiated   as   per   Rules.     A   copy   of   the   Surveyed

sketch showing the precise area of 24.00 Hect. in

Sy. No. 330/1 proposed for grant of Quarry Lease

for   Quartz   and   Feldspar   in   the   subject   area   in

favour of the applicant is enclosed herewith.”

15. Accordingly,   the   appellant   submitted   a   detailed   Mining

Plan on 20th October 2016.  The relevant part of the said Mining

Plan reads thus:­  

“(ii) Infrastructure and Communication:

Water:    Sufficient   quantity   of   drinking   water   is

available in the nearby villages from bore wells and

opens wells.

Electricity:  Electricity is available at a distance of

about 800 m from the applied lease area.

Rail   Head:    The   nearest   Railway   station   is

Mahabubnagar   about   100   Km   from   the   applied

Lease area.

14

River Head:  No river a located in the vicinity of the

Lease area.  Singotam Lake is located at a distance

of about 250 m from the applied area.  Numerous

tanks and bore wells constitute the main source of

water in the area.

Communication:  Telephonic Communication, Post

Office,   Bank,   is   available   in   Kalwakole   and

Peddakothapally.

Road:  Road to the quarry is accessible throughout

the year.   Four­wheelers, two­wheelers, buses and

autos ply on the road.”

16. In the meeting held on 30th  December 2016 of the State

Expert   Appraisal   Committee   (hereinafter   referred   to   as   the

“SEAC”), the proposal of the appellant came to be considered.

The relevant part of the said Minutes of the Meeting reads

thus:­  

Agenda

Item:

01

24.00 Ha. Quartz and Feldspar Mine of

M/s.   Dhruva   Enterprises,   Sy.   Nos.

330/1,   Kalwakole   (V),   Peddakothapally

(M),   Mahabubnagar   District   –

Environmental Clearance – Reg.

The representative of the project propone Sri Dr. S.

Venkateshwar Rao; and Sri M. Venkatesh of M/s.

Global   Enviro   Labs   &   Consultants,   Hyderabad

attended and made a presentation before the SEAC.

It is noted that the mine lease area is 24.00 Ha.

which   is   less   than   25.0   Ha.     The   project   is

15

considered under B1 Category as per the guidelines

of the MoEF & CC, GoI.  The proponent submitted

Approved Mining Plan & EMP report.

It is noted from the Notice dt. 07.09.2016 of DMG,

Hyderabad that the proponent obtained in principle

grant of quarry lease for a period of 20 years.  It is

further noted that the quarry lease is not granted

prior to 09.09.2013.  hence, it has to be ascertained

whether any other Mines are located surrounding

500m   as   Cluster,   as   per   S.O.   2269(E),   dt.

01.07.2016 issued by the MoEF & CC, GoI.

The   proponent   stated   that   there   are   no   mining

activities existing within 500m from the periphery of

project.

The   nearest   village   to   the   proposed   site   is

Yenambetla (V) which is existing at a distance of 1.6

Km and Singotham Lake exists at a distance of 0.25

Km from the boundary of the site.”

17. After a detailed discussion, the project was recommended

for grant of EC.  Thereafter, the SEIAA, in its meeting held on

11th April 2017, considered the said proposal and granted EC to

the project of the appellant.   The relevant part of the said

Minutes of the Meeting reads thus:­ 

“I.  This has reference to your application submitted

online   on   14.11.2016   (proposal   No.

SIA/TG/MIN/60426/2016) received on 23.11.2016,

seeking   Environment   Clearance   for   the   proposed

Quartz & Feldspar Mine in favour of M/s. Dhruva

Enterprises,   Sy.   Nos.   330/1,   Kalwakole   (V),

16

Peddakothapally   (M),  Mahabubnagar  District.   It

was   reported   that   the   nearest   human   habitation

viz., Yenambetla (V) exists at a distance of about 1.6

Km from the mine lease area.  It was also reported

that Singotham Lake which is existing at a distance

of 0.25 Km from the mine lease area.  It was noted

that the capital investment of the project is Rs. 2.1

Crores  and maximum capacity of the project is as

follows:

Mining of Quartz – 4,05,842 TPA

II.   It is a semi­mechanized opencast quarry.   The

Blocks   are   cut   by   using   jack   hammer   drilling,

wedge­cutting   and   excavation.     The   separated

blocks are dressed manually.  It is reported that the

life of the Mine is estimated as 18 years.  The total

mine lease area is 24.00 Ha.

III.  The proposal has been examined and processed

in accordance with EIA Notification, 2006 and its

amendments   thereof.     The   State   Level   Expert

Appraisal   Committee   (SEAC)   examined   the

application, in its meeting held on 30.12.2016 &

22.02.2017.   The project is considered under B2

category and exempted from the process of public

hearing as the mining lease area is less than 25

Ha., as per provisions laid under EIA Notification,

2006 & its subsequent amendments.  Based on the

information   furnished,   presentation   made   by   the

proponent and the consultant M/s. Global Enviro

Labs, Hyderabad; In­principle grant of quarry lease

by the DMG, Hyderabad Notice Dt. 07.09.2016 for a

period of 20 years; Approved Mining Plan; Lr. dt.

12.01.2017 of ADMG: Nagarkurnol informing that

there   are   no   mines   surrounding   500   mtrs   as

Cluster, the Committee considered the project and

recommended   for   issue   of   EC.     The   State   Level

17

Environment Impact Assessment Authority (SEIAA),

in its meeting held on 14.03.2017 & 18.03.2017

examined   the   proposal   and   recommendations   of

SEAC,   Telangana   for   issue   of   Environmental

Clearance.     Accordingly,   after   discussions   in   the

matter and considering the recommendations of the

SEAC, Telangana,  the   SEIAA,   Telangana   hereby

accords   prior   Environmental   Clearance   to   the

project  as   mentioned   at   Para   no.   I   under   the

provisions   of   EIA   Notification   2006   and   its

subsequent   amendments   issued   under

Environment   (Protection)   Act,   1986   subject   to

implementation of the following specific and general

conditions.”

18. Thereafter,   vide   order   dated   22nd  April   2017,   the

Government of Telangana granted Quarry Lease for Quartz over

an extent of 24.00 hectares in Sy. No. 330/1 of Kalwakole

Village,   Peddakothapally   Mandal,   Nagarkurnool   (erstwhile

Mahabubnagar) District in favour of the appellant.

19. A perusal of the aforesaid documents would reveal that

the appellant, in fact, had applied for grant of Mining Lease for

29   hectares.     It   is,   however,   the   authorities   including   the

Tahsildar, the RDO, Assistant Director of Mining and Geology,

Mahabubnagar, who had recommended grant of Quarry Lease

18

over 24 hectares.  Insofar as the water body is concerned, the

appellant, in his application as well as Mining Plan, has clearly

mentioned that Singotham Lake is situated at a distance of

0.25 km.  While processing the proposal of the appellant, the

Tahsildar and the Assistant Revenue Inspector of the concerned

area have physically carried out the inspection.  Not only that,

the Assistant Director of Mines and Geology had personally

inspected the area on 11th August 2016, and the Surveyor had

surveyed the applied area with the help of a GPS instrument.  It

is also revealed from the record that the area of 24 hectares in

Sy. No. 330/1, which consists a larger area, was earmarked

after leaving the safety distance of 0.25 km from Singotham

Lake.   In its report, the Surveyor had also reported that the

demarcated area was not overlapping with the existing leases

and there were no pending applications in that area.

20. It could thus be seen that prior to grant of ‘in­principle’

approval by the Director of Mines and Geology, Hyderabad,

Government of Telangana, the proposed area was physically

19

inspected by the Tahsildar along with the Assistant Revenue

Inspector.   The   Assistant   Director   of   Mines   and   Geology,

Mahabubnagar   had   independently   inspected   the   area.     The

area   was   surveyed   by   the   Official   Surveyor   with   the   GPS

instrument and while earmarking the area, the distance of 0.25

km was also maintained.

21. After   ‘in­principle’   approval   was   granted,   the   appellant

submitted its Mining Plan on 20th October 2016.  The proposal

of the appellant was thereafter considered by the SEAC on 30th

December 2016, wherein it was resolved to recommend the

proposal   of   the   appellant   for   grant   of   EC.     Thereafter,   the

SEIAA, in its meeting dated 11h

 April 2017, has granted its EC

after considering all the aspects.  Thereafter, Quarry Lease has

been granted in favour of the appellant on 22nd April 2017. 

22. It could thus be seen that the proposal of the appellant

has undergone scrutiny at various stages.   Only after it was

found that it was in conformity with the provisions of law, the

‘in­principle’   approval   and   EC   for   Quarry   Lease   had   been

20

granted. Thereafter, the appellant has submitted his Mining

Plan which was again duly examined by various authorities.

The proposal of the appellant was initially considered by SEAC

and recommended for grant of EC.   Thereafter, SEIAA, after

considering all the aspects has granted EC to the project of the

appellant.  Only thereafter, the Quarry Lease had been granted

in favour of the appellant. 

23. Insofar as the finding of the learned Tribunal that the area

was reduced to 24 hectares from 29 hectares only in order to

avoid the rigours of public hearing, is totally erroneous.   The

appellant had no role to play in the same. It is the authorities

who   recommended  approval   in   respect  of   only   24   hectares.

Insofar   as   the   mandatory   distance   from   the   water   body   is

concerned, the  authorities  upon  survey  had  found  that  the

mandatory distance of 0.25 km is maintained.

24. In this view of matter, we find that the learned Tribunal

has grossly erred in arriving at a finding that the appellant had

reduced the area to 24 hectares only in order to avoid the

21

rigours of public hearing and further that there was no distance

of   0.25   km   between   the   proposed   mining   area   and   the

Singotham Lake.

25. In   the   result,   the   appeal   succeeds   and   the   impugned

judgment and order dated 17th  January 2020, passed by the

learned Tribunal is quashed and set aside.  No costs.

…..…..….......................J.

   [L. NAGESWARA RAO]

…….........................J.

[B.R. GAVAI]

..…..….......................J.

       [B.V. NAGARATHNA]

NEW DELHI;

SEPTEMBER 15, 2021.

22

The Appellant is a police officer in the State of West Bengal and has made allegation of cruelty and desertion against the 3 | P a g e Respondent. Though the respondent has insisted that she intends to live with the Appellant, no meaningful effort has been made by her for reconciliation. Allegations made by the Respondent relate to adultery by the Appellant which was the reason for her moving out of the matrimonial home. In spite of the best efforts made by Mr. Mukherjee, the Respondent has insisted that she is not willing for dissolution of the marriage. Mr. Mukherjee has brought to our notice that the Respondent has to take care of her son who is suffering from serious ailments. 6. Having scrutinized the material on record and considering the submissions made by Mr. Nikhil Nayyar and Mr. Ranjan Mukherjee, learned Amicus Curiae, without commenting on the merits of the matter, the marriage between the parties is emotionally dead and there is no point in persuading them to live together any more. Therefore, this is a fit case for exercise of jurisdiction under Article 142 of the Constitution of India. The marriage between the parties is dissolved.

  Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 5696 of 2021

(@ SLP (C) No.11747 of 2017)

SUBHRANSU SARKAR

.... Appellant(s)

Versus

INDRANI SARKAR (NEE DAS)

…. Respondent (s)

O R D E R

Leave granted.

1. The Appellant married the Respondent on 02.03.1997 and

registered the same under the Special Marriage Act, 1954.

Thereafter, the marriage was solemnized between the parties on

07.12.2000 under the Hindu rites and customs. Alleging cruelty and

desertion by the Respondent, the appellant filed a suit for dissolution

of marriage on 05.03.2007 before the District Judge, Alipore. The

suit was dismissed, aggrieved by which the Appellant filed an appeal

before the High Court of Calcutta. The Respondent did not appear

before the High Court. However, the High Court dismissed the

appeal filed by the appellant upholding the judgment of the Trial

Court. The allegation made by the Appellant against the

Respondent is that she was insisting on his residing separately from

1 | P a g e

his parents. Also, the Respondent misbehaved with her in-laws and

that she was frequently leaving the matrimonial home. The

appellant also alleged physical assault by the Respondent when both

of them went to Puri and Shillong for holidays. The Respondent

resisted the Petition filed for dissolution of marriage by denying the

averments made against her. She accused the appellant of adultery

and excessive consumption of alcohol. The Trial Court and the High

Court refused to accept the contentions of the appellant that he is

entitled for divorce by holding that he could not make out a case of

cruelty meted out by the Respondent.

2. It was submitted by Mr. Nikhil Nayyar, learned Senior Counsel

for the Appellant that the Appellant and Respondent have been living

separately for more than 16 years and for all practical purposes the

marriage is dead. He relied upon two judgments of this Court in

Sukhendu Das v. Rita Mukherjee

1

 and Munish Kakkar v.

Nidhi Kakkar

2

 in support of his submission that this Court in

exercise of its power under Article 142 of the Constitution of India

has dissolved marriages when they are totally unworkable and

irretrievable.

3. We have requested Mr. Ranjan Mukherjee to assist this Court

as Amicus Curiae on behalf of the Respondent as she did not engage

an Advocate. Mr. Ranjan Mukherjee informed this Court that the

1 (2017) 9 SCC 632

2 (2020) 14 SCC 657

2 | P a g e

Respondent intends to continue to live with the Appellant. Mr.

Mukherjee informed this Court that he spoke to the Respondent

several times and the Respondent is not convinced that an

unworkable marriage should be put to an end. In Sukhendu Das

v. Rita Mukherjee (supra), this Court considered a similar situation

where the marriage between the parties took place on 19.06.1992

and they were living apart from the year 2000. The Trial Court found

that the husband could not prove cruelty by his wife and that he was

not entitled for decree of divorce. The judgment of the Trial Court

was upheld by the High Court and the same was the subject matter

of challenge before this Court. The Respondent failed to appear

before this Court in spite of notice being served. By holding that

there was an irretrievable breakdown of marriage, this Court

dissolved the marriage between the parties therein by observing that

they had been living separately for more than 17 years and no useful

purpose would be served by compelling them to live together in

matrimony.

4. To do complete justice between the parties, this Court in

Munish Kakkar v. Nidhi Kakkar (supra) put an end to the bitter

matrimonial dispute which lingered on for two decades between the

parties therein.

5. The Appellant is a police officer in the State of West Bengal

and has made allegation of cruelty and desertion against the

3 | P a g e

Respondent. Though the respondent has insisted that she intends to

live with the Appellant, no meaningful effort has been made by her

for reconciliation. Allegations made by the Respondent relate to

adultery by the Appellant which was the reason for her moving out of

the matrimonial home. In spite of the best efforts made by Mr.

Mukherjee, the Respondent has insisted that she is not willing for

dissolution of the marriage. Mr. Mukherjee has brought to our notice

that the Respondent has to take care of her son who is suffering from

serious ailments.

6. Having scrutinized the material on record and considering

the submissions made by Mr. Nikhil Nayyar and Mr. Ranjan

Mukherjee, learned Amicus Curiae, without commenting on the

merits of the matter, the marriage between the parties is

emotionally dead and there is no point in persuading them to live

together any more. Therefore, this is a fit case for exercise of

jurisdiction under Article 142 of the Constitution of India. The

marriage between the parties is dissolved. The Registry is directed

to prepare a decree accordingly. Taking note of the submissions

made by Mr. Ranjan Mukherjee, we direct the Appellant to pay an

amount of Rs.25 Lakhs (Rupees Twenty-Five Lakhs) to the

Respondent within a period of eight weeks from today. The petition

filed by the Respondent under Section 125 Cr. PC for maintenance

shall be withdrawn by the Respondent on receipt of the amount of

4 | P a g e

Rs.25 Lakhs. The payment of the aforesaid amount is in full and final

settlement of all claims of the Respondent against the Appellant.

7. The appeal is disposed of accordingly.

 ….............................J.

 [L. NAGESWARA RAO]

 ..……......................J.

 [ B.R. GAVAI ]

New Delhi,

September 14, 2021.

5 | P a g e

Then the question is of TRUST. Therefore, in such a 24 situation, where the employer feels that an employee who at the initial stage itself has made a false statement and/or not disclosed the material facts and/or suppressed the material facts and therefore he cannot be continued in service because such an employee cannot be relied upon even in future, the employer cannot be forced to continue such an employee. The choice/option whether to continue or not to continue such an employee always must be given to the employer. At the cost of repetition, it is observed and as observed hereinabove in catena of decision such an employee cannot claim the appointment and/or continue to be in service as a matter of right.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 5743-5744 OF 2021

 (Arising out of SLP(Civil) Nos.7386-7387/2020)

Rajasthan Rajya Vidyut Prasaran Nigam

Limited and another … Appellants

Versus

Anil Kanwariya … Respondent

J U D G M E N T

M.R. SHAH, J.

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 05.09.2019 passed by the High Court of Judicature for

Rajasthan, Bench at Jaipur in D.B. Special Appeal Writ No. 560/2019, as

well as the order dated 05.12.2019 passed in D.B. Review Petition (Writ)

No. 250/2019, by which the Division Bench of the High Court has

dismissed the said appeal and has confirmed the judgment and order

passed by the learned Single Judge dated 23.01.2019 by which the

learned Single Judge allowed the said writ petition preferred by the

1

respondent herein and quashed and set aside the order of termination

terminating the services of the respondent – employee herein – original

writ petitioner on the ground of suppression of material facts of

conviction and penalty at the time of applying for the post in 2013 and

also submitting a false declaration at the time of documents verification

on 14.04.2015, the employer – Rajasthan Rajya Vidyut Prasaran Nigam

Limited and another have preferred the present appeal.

3. That the appellants herein invited applications for the post of

Technical Helper by issuing advertisement in the month of October,

2013. Pursuant to the said advertisement, respondent herein –

employee applied for the said post. The written test was held on

02.02.2014 and result of which was declared on 31.03.2015. The date

fixed for the documents’ verification was 14.04.2015. The respondent

herein having qualified for the said post was appointed as a Technical

Helper as probationer trainee for a period of two years on 06.05.2015

and was placed under Superintending Engineer, RVPN, Jodhpur. As per

condition No. 16 of the terms and conditions of the appointment order,

the appointment of the respondent was subject to production of a

character certification/verification report issued by the Superintendent of

Police of the concerned District where he belongs. The Superintendent

of Police, Sawai Madhopur vide police verification/antecedents report

dated 5.6.2015 informed the appellants that a Case bearing No. 13/2011

2

against the respondent-employee for the offences under Sections 143,

341, 323 IPC in which a chargesheet was filed against the respondentemployee on 17.01.2011 and the learned trial Court convicted the

respondent-employee vide judgment and order dated 5.8.2013,

convicting him for the offences under Sections 341 and 323 IPC,

however, given the benefit under the Probation of Offenders Act, 1958

(hereinafter referred to as “Act 1958”). While giving the benefit of Act

1958, the respondent-employee was ordered to be released on

probation for good conduct.

It is to be noted that even subsequently such conviction of the

respondent-employee came to be confirmed, however, the learned

Sessions Judge vide judgment dated 09.09.2015 granted the benefit of

Section 12 of the Act 1958 to the respondent-employee which provides

that a person shall not suffer disqualification attaching to the conviction.

3.1 Having found that the respondent-employee deliberately

suppressed the fact of conviction and penalty, not only at the time of

applying for the post, but also on 14.04.2015 whereby he submitted a

declaration during documents verification that neither criminal case is

pending against him nor he has suffered any conviction by any court of

law in any criminal case and finding concealment of facts of criminal

case, the appellants issued a show cause notice dated 31.08.2015 to

the respondent-employee and granted him an opportunity of being heard

3

on 15.03.2016 and having found that in view of suppression of material

fact of not disclosing his conviction by the competent court, respondentemployee shall not be continued in service and therefore vide order

dated 6.5.2016, the appellants terminated the services of the

respondent-employee.

3.2 Aggrieved by the order of termination, the respondent-employee

preferred Writ Petition No. 6969 of 2016 before the learned Single Judge

of the High Court. The learned Single Judge of the High Court solely

relying on the judgment of this Court in the case of Avtar Singh v. Union

of India, reported in (2016) 8 SCC 471, and also on order dated

9.9.2015 passed by the learned Sessions Judge in appeal granting

benefit of Section 12 of the Act 1958, allowed the writ petition and

quashed and set aside the order of termination and directed the

appellants to reinstate the respondent-employee with all consequential

benefits.

3.3 Feeling aggrieved and dissatisfied with the judgment and order

passed by the learned Single Judge, quashing and setting aside the

order of termination and directing the appellants to reinstate the

respondent-employee, the appellants-employer preferred appeal before

the Division Bench being D.B. Special Appeal Writ No. 560 of 2019. The

Division Bench also solely relying upon para 38.4.1 of the decision of

this Court in the case of Avtar Singh (supra) and observing that the

4

employee was held guilty in a dispute of trivial nature with his father,

uncle, brother and cousin and as it was a trivial nature dispute and such

a dispute which even if disclosed could have been ignored by the

employer because of the benefit of Section 12 of the Act 1958, the

Division Bench by the impugned judgment and order has dismissed the

said appeal and has confirmed the judgment and order passed by the

learned Single Judge, directing reinstatement of the employee with all

consequential benefits. The review petition preferred by the appellants

herein has also been dismissed.

4. Dr. Manish Singhvi, learned Senior Advocate has appeared on

behalf of the appellants and Mr. Navin Prakash, Advocate has appeared

on behalf of the respondent-employee.

4.1 Dr. Manish Singhvi, learned Senior Advocate appearing on behalf

of the appellants-employer has vehemently submitted that in the facts

and circumstances of the case, both, the learned Single Judge as well

as the Division Bench have materially erred in quashing and setting

aside the order of termination mainly relying upon the decision of this

Court in the case of Avtar Singh (supra) and considering the subsequent

order passed by the learned Sessions Court granting the benefit of

Section 12 of the Act 1958.

4.2 It is further submitted that, as such, in the facts and circumstances

of the case, the decision of this Court in the case of Avtar Singh (supra)

5

shall not be applicable at all. It is submitted that on the contrary it

supports the case of the appellants.

4.3 It is further submitted that in the present case at the time when the

respondent-employee applied for the advertised post, he was already

convicted for the offences under Sections 341 and 323 IPC by the

competent criminal court which he did not disclose. It is submitted that

even thereafter also when he submitted the declaration at the time of

documents verification on 14.04.2015, the respondent-employee though

already suffered a conviction for the offences under Sections 341 and

323 IPC and at that time, i.e., on 14.04.2015, only the benefit under

Sections 3 & 4 of the Act 1958 was given, he filed a false declaration. It

is submitted that the learned trial Court did not grant the benefit of

Section 12 of the Act 1958, which benefit of Section 12 of the Act 1958

was given only vide judgment and order dated 9.9.2015 by the learned

Sessions Judge. It is submitted that as the respondent-employee

suppressed the material fact of criminal case firstly in the year 2013

when he submitted the application and thereafter subsequently on

14.04.2015 when he submitted the declaration at the time of documents

verification and thereafter when the services of the respondent were

terminated after giving him an opportunity of being heard, the same

ought not to have interfered with by the learned Single Judge and

thereafter by the Division Bench.

6

4.4 It is further submitted that the High Court has materially erred in

even considering the subsequent decision of the learned Sessions Court

in appeal granting the benefit of Section 12 of the Act 1958. It is

submitted that the date on which the respondent applied for the said

post and even submitted the declaration, there was no order passed by

the learned Sessions Court granting the benefit of Section 12 of the Act

1958 and at that time the order passed by the learned trial Court

granting the benefit of Sections 3 & 4 of the Act 1958 was subsisting.

Therefore, the High Court ought not to have relied upon and/or taken

into consideration the subsequent decision of the learned Sessions

Judge dated 9.9.2015 granting the benefit of Section 12 of the Act 1958.

4.5 It is further submitted by the learned senior counsel appearing on

behalf of the appellants that the matter may be looked at from another

angle. It is submitted that when the employee initially suppressed the

material fact and obtained the appointment fraudulently, thereafter it is a

case of trustworthiness, reliability and credibility of such an employee. It

is submitted that if the employee would have disclosed at the relevant

time that he is facing the criminal trial and/or he has been convicted, in

that case from the very inception, the employer would not have

employed him. It is submitted that therefore the employer is justified in

not continuing such an employee who has suppressed the material fact

7

at the relevant time, on the premise that such a person cannot be trusted

thereafter and cannot be continued in service.

4.6 It is further submitted that even the observations made by the

Division Bench in the impugned judgment that the dispute for which the

employee was convicted was a trivial nature dispute and such a dispute

which even if disclosed could have been ignored by the employer

because of the benefit of Section 12 of the Act 1958 given to him is

absolutely irrelevant, it is submitted that such a reasoning is not

germane. It is submitted that such an observation is on the basis of

surmises and conjectures that what could have been done by the

employer.

4.7 Making the above submissions and relying upon the decisions of

this Court in the cases of Kendriya Vidyalaya Sangathan v. Ram Ratan

Yadav, (2003) 3 SCC 437; Secretary, Department of Home Secretary,

A.P. v. B. Chinnam Naidu, (2005) 2 SCC 746; Daya Shankar Yadav v.

Union of India, (2010) 14 SCC 103; Jainendra Singh v. State of U.P.,

(2012) 8 SCC 748; Devendra Kumar v. State of Uttaranchal, (2013) 9

SCC 363; and State of M.P. v. Abhijit Singh Pawar, (2018) 18 SCC 733,

it is prayed to allow the present appeals and quash and set aside the

impugned judgment and order passed by the Division Bench and

consequently quash and set aside the judgment and order passed by

8

the learned Single Judge and consequently dismiss the writ petition filed

by the respondent-employee before the High Court.

5. The present appeals are vehemently opposed by Shri Navin

Prakash, learned Advocate appearing for the respondent-employee. It is

submitted that in the facts and circumstances of the case and more

particularly the order passed by the learned Sessions Court granting the

benefit under Section 12 of the Act 1958 and considering the fact that

the dispute was of a trivial nature with the family members, the learned

Single Judge rightly set aside the order of termination which has been

rightly confirmed by the Division Bench.

5.1 It is further submitted that the order passed by the learned Single

Judge, confirmed by the Division Bench, is absolutely in consonance

with the decision of this Court in the case of Avtar Singh (supra), more

particularly para 38.4.1 of the said decision.

5.2 It is further submitted by the learned counsel that even otherwise

the omission or the lapse committed on the part of the respondent was

neither intentional nor deliberate, rather it was under bonafide belief that

in view of the benefit granted to the respondent under the provisions of

section 3 of the Act 1958 by the learned trial Court, the respondent has

not incurred disqualification. It is submitted therefore the said omission

or the lapse deserves to be condoned by taking a lenient view. Heavy

reliance is placed on the decisions of this Court in the cases of T.S.

9

Vasudavan Nair v. Director of Vikram Sarabhai Space Centre, 1988

Supp. SCC 795; Commissioner of Police v. Sandeep Kumar, (2011) 4

SCC 644; and Avtar Singh (supra).

5.3 It is further submitted that in the instant case, as has been held by

the learned Single Judge in judgment and order dated 23.01.2019, the

employer – appellants herein did not at all consider the case of the

respondent as regard to the extenuating circumstances and the benefit

granted to him under sections 3 & 12 of the Act 1958 by the learned trial

Court and the learned sessions Court.

5.4 Making the above submissions and relying upon the aforesaid

decisions, it is prayed to dismiss the present appeals.

6. We have heard the learned counsel for the respective parties at

length.

At the outset, it is required to be noted that the appellants herein –

employer terminated the services of the respondent on non-disclosure of

the pending criminal case against him at the time when he submitted the

application for appointment, submitted in the month of

October/November, 2013 and thereafter in the declaration dated

14.04.2015. As observed hereinabove, the respondent was

chargesheeted for the offences under Sections 143, 341 and 323 IPC

vide chargesheet dated 17.01.2011. The learned trial Court convicted

the respondent for the offences under Sections 341 & 323 IPC, vide

10

judgment and order dated 5.8.2013. However, granted the benefit under

Section 3 of the Act 1958 only. In the month of October, 2013, the

appellants issued an advertisement for the post of Technical Helper and

the last date for submission of the application was 14.11.2013. Pursuant

to the said advertisement, the respondent applied for the said post and

the written test was held on 02.02.2014 and the result of which was

declared on 31.03.2015. The respondent submitted declaration on

14.04.2015 declaring that neither any criminal case is pending against

him nor he has been convicted by any court of law. The date fixed for

documents verification was 14.04.2015 and along with the documents

verification he was required to file a declaration which he submitted

stating that neither any criminal case is pending against him nor he has

been convicted by any court of law. Therefore, on the date of submitting

an application and even at the time when declaration was filed on

14.04.2015, there was already an order of conviction against him. Even

at the relevant time, the benefit of Section 12 of the Act 1958 was not

granted to the respondent, which was given subsequently vide judgment

of the learned Sessions Court dated 09.09.2015.

6.1 At this stage, it is required to be noted that the show cause notice

dated 31.08.2015 was followed after the employer received the police

verification/antecedents report dated 5.6.2015 of the Superintendent of

Police, Sawai Madhopur disclosing that the respondent was already

11

convicted by the learned trial Court vide judgment and order dated

5.8.2013 and was granted the benefit of Section 3 of the Act 1958 only.

That thereafter it appears that having realised that in view of the

conviction imposed by the learned trial Court and granted the benefit of

Section 3 of the Act 1958 only, the same shall come in his way, belatedly

the respondent preferred an appeal before the learned Sessions Court

on 11.08.2015, challenging the judgment and order of conviction passed

by the learned trial Court dated 5.8.2013, i.e., after a period of two years.

That by judgment and order dated 9.9.2015, the learned Sessions Court

allowed the said appeal partly, however granted the benefit of Section 12

of the Act 1958, as prayed.

6.2 From the judgment and order passed by the learned Sessions

Court, it appears that only submission on behalf of the respondent was

with respect to granting the benefit of Section 12 of the Act 1958 and the

appeal came to be disposed of by the learned Sessions Court within a

period of one month from the date of filing of the appeal, though the

judgment and order of conviction by the learned trial Court was passed

in the year 2013. Therefore, it appears that only with a view to get out of

the disqualification of conviction, belatedly he preferred an appeal and

obtained the order of granting the benefit of Section 12 of the Act 1958.

Even otherwise, it is required to be noted that on getting the benefit of

Section 12 of the Act 1958 subsequently by that itself the respondent

12

cannot get away of the allegations of suppression of material fact and

filing a false declaration that neither any criminal case is pending against

him nor he has been convicted by any court of law, which was filed on

14.04.2015.

6.3 Thus, at the time when he submitted the application for

appointment in the month of October/November 2013, the respondent

already suffered a conviction by the competent court which not only he

did not disclose, but in fact, a false declaration was filed that neither any

criminal case is pending against him nor he has been convicted by any

court of law. That thereafter after receipt of the police

verification/antecedents report dated 5.6.2015 from the Superintendent

of Police, Sawai Madhopur and after giving a show cause notice and an

opportunity of being heard to the respondent, the employer terminated

the services of the respondent on the ground of non-disclosure

/suppression of material fact and filing a false declaration.

7. In light of the aforesaid facts, the orders passed by the learned

Division Bench as well as the learned Single Judge of the High Court

and the reliance placed upon the decision of this Court in the case of

Avtar Singh (supra), relied upon on behalf of the respondent-employee,

are required to be considered.

8. While considering the aforesaid issues, few decisions of this Court

on appointment obtained by fraud/misrepresentation and/or appointment

13

obtained by suppression of material facts are required to be referred to

and considered.

8.1 In the case of B. Chinnam Naidu (supra), this Court has observed

that the object of requiring information in the attestation form and the

declaration thereafter by the candidate is to ascertain and verify the

character and antecedents to judge his suitability to enter into or

continue in service. It is further observed that when a candidate

suppresses material information and/or gives false information, he

cannot claim any right for appointment or continuance in service.

8.2 In the case of Devendra Kumar (supra), while joining the training,

the employee was asked to submit an affidavit giving certain information,

particularly, whether he had ever been involved in any criminal case.

The employee submitted an affidavit stating that he had never been

involved in any criminal case. The employee completed his training

satisfactorily and it was at this time that the employer in pursuance of the

process of character verification came to know that the employee was in

fact involved in a criminal case. It was found that the final report in that

case had been submitted by the prosecution and accepted by the

Judicial Magistrate concerned. On the basis of the same, the employee

was discharged abruptly on the ground that since he was a temporary

government servant, he could be removed from service without holding

an enquiry. The said order was challenged by the employee by filing a

14

writ petition before a Single Judge of the High Court which was

dismissed. The Division Bench upheld that order, which was the subject

matter of appeal before this Court. Dismissing the appeal, this Court

observed and held that the question is not whether the employee is

suitable for the post. The pendency of a criminal case/proceeding is

different from suppressing the information of such pendency. The case

pending against a person might not involve moral turpitude but

suppressing of this information itself amounts to moral turpitude. It is

further observed that the information sought by the employer if not

disclosed as required, would definitely amount to suppression of material

information and in that eventuality, the service becomes liable to be

terminated, even if there had been no further trial or the person

concerned stood acquitted/discharged. It is further observed by this

Court in the said decision that where an applicant/employee gets an

order by misrepresenting the facts or by playing fraud upon the

competent authority, such an order cannot be sustained in the eye of the

law. “Fraud avoids all judicial acts, ecclesiastical or temporal”. It is

further observed and held that dishonesty should not be permitted to

bear the fruit and benefit those persons who have defrauded or

misrepresented themselves and in such circumstances the court should

not perpetuate the fraud by entertaining petitions on their behalf. The

15

relevant observations in the said decision are in paras 12, 13, 18 & 25,

which are as under:

12. So far as the issue of obtaining the appointment by misrepresentation

is concerned, it is no more res integra. The question is not whether the

applicant is suitable for the post. The pendency of a criminal

case/proceeding is different from suppressing the information of such

pendency. The case pending against a person might not involve moral

turpitude but suppressing of this information itself amounts to moral

turpitude. In fact, the information sought by the employer if not disclosed

as required, would definitely amount to suppression of material

information. In that eventuality, the service becomes liable to be

terminated, even if there had been no further trial or the person concerned

stood acquitted/discharged.

13. It is a settled proposition of law that where an applicant gets an office

by misrepresenting the facts or by playing fraud upon the competent

authority, such an order cannot be sustained in the eye of the law. “Fraud

avoids all judicial acts, ecclesiastical or temporal.” [Vide S.P.

Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1: AIR 1994 SC 853.] In

Lazarus Estates Ltd. V. Beasley [(1956) 1 QB 702: (1956) 2 WLR 502:

(1956) 1 ALL ER 341 (CA)] the Court observed without equivocation that:

(QB p. 712)

“… No judgment of a court, no order of a Minister can be allowed to stand

if it has been obtained by fraud, for fraud unravels everything.”

18. The ratio laid down by this Court in various cases is that dishonesty

should not be permitted to bear the fruit and benefit those persons who

have frauded or misrepresented themselves. In such circumstances the

court should not perpetuate the fraud by entertaining petitions on their

behalf. In Union of India v. M. Bhaskaran (1995) Supp (4) SCC 100 this

court, after placing reliance upon and approving its earlier judgment in

Vizianagaram Social Welfare Residential School Society v. M. Tripura

Sundari Devi (1990) 3 SCC 655, observed as under: (M. Bhaskaran case,

SCC p. 104, para 6)

If by committing fraud any employment is obtained, the same cannot be

permitted to be countenanced by a court of law as the employment

secured by fraud renders it voidable at the option of the employer.

25. More so, if the initial action is not in consonance with law, the

subsequent conduct of party cannot sanctify the same. Sublato

fundamento cadit opus – a foundation being removed, the superstructure

falls. A person having done wrong cannot take advantage of his own

wrong and plead bar of any law to frustrate the lawful trial by a competent

court. In such a case the legal maxim nullus commodum caprere potest de

16

injuria sua propria applies. The persons violating the law cannot be

permitted to urge that their offence cannot be subjected to inquiry, trial or

investigation. [Vide Union of India v. Major General Madan Lal Yadav

(1996) 4 SCC 127:1996 SCC (Cri) 592: AIR 1996 SC 1340 and Lily

Thomas v. Union of India (2000) 6 SCC 224: 2000 SCC (Cri) 1056.] Nor

can a person claim any right arising out of his own wrongdoing (jus ex

injuria non oritur).

8.3 In the case of Jainendra Singh (supra), this Court summarised the

principles to be considered in a case where the appointment is obtained

by misrepresentation and/or suppression of facts by

candidates/appointees as under:

“(i) Fraudulently obtained orders of appointment could be legitimately

treated as voidable at the option of the employer or could be recalled by

the employer and in such cases merely because the respondent employee

has continued in service for a number of years, on the basis of such

fraudulently obtained employment, cannot get any equity in his favour or

any estoppel against the employer.

(ii) Verification of the character and antecedents is one of the important

criteria to test whether the selected candidate is suitable to the post under

the State and on account of his antecedents the appointing authority if find

not desirable to appoint a person to a disciplined force can it be said to be

unwarranted.

(iii) When appointment was procured by a person on the basis of forged

documents, it would amount to misrepresentation and fraud on the

employer and, therefore, it would create no equity in his favour or any

estoppel against the employer while resorting to termination without

holding any inquiry.

(iv) A candidate having suppressed material information and/or giving false

information cannot claim right to continue in service and the employer,

having regard to the nature of employment as well as other aspects, has

the discretion to terminate his services.

(v) The purpose of calling for information regarding involvement in any

criminal case or detention or conviction is for the purpose of verification of

the character/antecedents at the time of recruitment and suppression of

such material information will have clear bearing on the character and

antecedents of the candidate in relation to his continuity in service.

17

(vi) The person who suppressed the material information and/or gives

false information cannot claim any right for appointment or continuity in

service.

(vii) The standard expected of a person intended to serve in uniformed

service is quite distinct from other services and, therefore, any deliberate

statement or omission regarding a vital information can be seriously

viewed and the ultimate decision of the appointing authority cannot be

faulted.

(viii) An employee on probation can be discharged from service or may be

refused employment on the ground of suppression of material information

or making false statement relating to his involvement in the criminal case,

conviction or detention, even if ultimately he was acquitted of the said

case, inasmuch as such a situation would make a person undesirable or

unsuitable for the post.

(ix) An employee in the uniformed service pre-supposes a higher level of

integrity as such a person is expected to uphold the law and on the

contrary such a service born in deceit and subterfuge cannot be tolerated.

(x) The authorities entrusted with the responsibility of appointing

Constables, are under duty to verify the antecedents of a candidate to find

out whether he is suitable for the post of a Constable and so long as the

candidate has not been acquitted in the criminal case, he cannot be held

to be suitable for appointment to the post of Constable.”

8.4 In the case of Daya Shankar Yadav (supra), this Court had an

occasion to consider the purpose of seeking the information with respect

to antecedents. It is observed and held that the purpose of seeking the

information with respect to antecedents is to ascertain the character and

antecedents of the candidate so as to assess his suitability for the post.

It is further observed that when an employee or a prospective employee

declares in a verification form, answers to the queries relating to

character and antecedents, the verification thereof can lead to any of the

following consequences:

18

“(a) If the declarant has answered the questions in the affirmative and

furnished the details of any criminal case (wherein he was convicted or

acquitted by giving benefit of doubt for want of evidence), the employer

may refuse to offer him employment (or if already employed on probation,

discharge him from service), if he is found to be unfit having regard to the

nature and gravity of the offence/crime in which he was involved.

(b) On the other hand, if the employer finds that the criminal case

disclosed by the declarant related to offences which were technical, or of a

nature that would not affect the declarant’s fitness for employment, or

where the declarant had been honourably acquitted and exonerated, the

employer may ignore the fact that the declarant had been prosecuted in a

criminal case and proceed to appoint him or continue him in employment.

(c) Where the declarant has answered the questions in the negative and

on verification it is found that the answers were false, the employer may

refuse to employ the declarant (or discharge him, if already employed),

even if the declarant had been cleared of the charges or is acquitted. This

is because when there is suppression or non-disclosure of material

information bearing on his character, that itself becomes a reason for not

employing the declarant.

(d) Where the attestation form or verification form does not contain proper

or adequate queries requiring the declarant to disclose his involvement in

any criminal proceedings, or where the candidate was unaware of initiation

of criminal proceedings when he gave the declarations in the verification

roll/attestation form, then the candidate cannot be found fault with, for not

furnishing the relevant information. But if the employer by other means

(say police verification or complaints, etc.) learns about the involvement of

the declarant, the employer can have recourse to courses (a) or (b)

above.”

Thereafter, it is observed and held that an employee can be discharged

from service or a prospective employee may be refused employment on

the ground of ……..suppression of material information or making false

statement in reply to queries relating to prosecution or conviction for a

criminal offence (even if he was ultimately acquitted in the criminal

case).

19

8.5 In the case of Abhijit Singh Pawar (supra), when the employee

participated in the selection process, he tendered an affidavit disclosing

the pending criminal case against him. The affidavit was filed on

22.12.2012. According to the disclosure, a case registered in the year

2006 was pending on the date when the affidavit was tendered.

However, within four days of filing such an affidavit, a compromise was

entered into between the original complainant and the employee and an

application for compounding the offence was filed under Section 320

Cr.P.C. The employee came to be discharged in view of the deed of

compromise. That thereafter the employee was selected in the

examination and was called for medical examination. However, around

the same time, his character verification was also undertaken and after

due consideration of the character verification report, his candidature

was rejected. The employee filed a writ petition before the High Court

challenging rejection of his candidature. The learned single Judge of the

High Court of Madhya Pradesh allowed the said writ petition. The

judgment and order passed by the learned single Judge directing the

State to appoint the employee came to be confirmed by the Division

Bench which led to appeal before this Court. After considering catena of

decisions on the point including the decision of this Court in the case of

Avtar Singh (supra), this Court upheld the order of the State rejecting the

candidature of the employee by observing that as held in Avtar Singh

20

(supra), even in cases where a truthful disclosure about a concluded

case was made, the employer would still have a right to consider

antecedents of the candidate and could not be compelled to appoint

such candidate. After reproducing and/or re-considering para 38.5 of the

decision in the case of Avtar Singh (supra), in paragraph 13, this Court

observed and held as under:

13. In Avtar Singh (supra), though this Court was principally concerned

with the question as to non-disclosure or wrong disclosure of information,

it was observed in para 38.5 that even in cases where a truthful disclosure

about a concluded case was made, the employer would still have a right to

consider antecedents of the candidate and could not be compelled to

appoint such candidate.

In the said decision, this Court also considered the conduct on the part

of the employee in getting discharge on the basis of the compromise

which was obtained within a period of four days of filing the

affidavit/disclosure. In paragraph 14, it is observed and held as under:

14. In the present case, as on the date when the respondent had applied,

a criminal case was pending against him. Compromise was entered into

only after an affidavit disclosing such pendency was filed. On the issue of

compounding of offences and the effect of acquittal under Section

320(8) of CrPC, the law declared by this Court in Mehar Singh (2013) 7

SCC 685, specially in paras 34 and 35 completely concludes the issue.

Even after the disclosure is made by a candidate, the employer would be

well within his rights to consider the antecedents and the suitability of the

candidate. While so considering, the employer can certainly take into

account the job profile for which the selection is undertaken, the severity of

the charges levelled against the candidate and whether the acquittal in

question was an honourable acquittal or was merely on the ground of

benefit of doubt or as a result of composition.

21

9. Applying the law laid down by this Court in the aforesaid decisions

to the facts of the case on hand, the impugned order passed by the

Division Bench dismissing the appeal and confirming the order passed

by the learned single Judge quashing and setting aside the order of

termination terminating the services of the employee on the ground of

non-disclosure/suppression of material fact and filing a false declaration

and directing the appellants to reinstate the respondent-employee is

unsustainable.

10. Apart from the fact that at the time when the respondent applied in

the month of October/November, 2013 though he was already convicted

by the competent court and was given the benefit under Section 3 of the

Act 1958 only, he did not disclose his conviction, but even at the time

when he filed a declaration on 14.04.2015 he filed a false declaration

that neither any criminal case is pending against him nor he has been

convicted by any court of law and relying upon such a declaration the

appellants gave him appointment. Only on police verification/receipt of

the antecedent’s report from the Superintendent of Police, Sawai

Madhopur, the appellants came to know about the conviction of the

respondent. Therefore, the appellants were absolutely justified in

terminating the services of the respondent.

11. Even the conduct on the part of the respondent to obtain the order

subsequently from the learned Sessions Court in an appeal and getting

22

the benefit of Section 12 of the Act 1958 deserves consideration. As

observed hereinabove, the judgment and order of conviction by the

learned trial Court was passed as far back as on 5.8.2013. For two

years, the respondent did not file any appeal before the learned

Sessions Court. After a period of approximately two years and after he

obtained the appointment on the basis of the false declaration that

neither any criminal case is pending against him nor he has been

convicted by any court of law and having realised that his conviction and

the benefit granted under Section 3 of the Act 1958 by the learned trial

Court only will come in his way, subsequently after a period of two years

he filed an appeal before the learned Sessions Court on 11.08.29015

and the appeal came to be disposed of within a period of one month,

i.e., on 9.9.2015 and the learned Sessions Court granted the benefit of

Section 12 of the Act 1958. From the judgment and order passed by the

learned Sessions Court, it appears that the respondent only prayed for

giving the benefit of Section 12 of the Act 1958 and nothing was

contended by him with regard to conviction and order of sentence.

Therefore, with a view to get out of the conviction and the benefit of

Section 3 of the Act 1958 only and having realised that his conviction

may come in his way, he preferred an appeal after a period of two years

and obtained the benefit of Section 12 of the Act 1958 which provides

that a person found guilty of an offence and dealt with under the

23

provisions of section 3 or section 4 shall not suffer disqualification, if any,

attaching to a conviction of an offence under such law.

Even otherwise, subsequently getting the benefit of Section 12 of

the Act 1958 shall not be helpful to the respondent inasmuch as the

question is about filing a false declaration on 14.04.2015 that neither any

criminal case is pending against him nor he has been convicted by any

court of law, which was much prior to the order passed by the learned

Sessions Court granting the benefit of Section 12 of the Act 1958. As

observed hereinabove, even in case of subsequent acquittal, the

employee once made a false declaration and/or suppressed the material

fact of pending criminal case shall not be entitled to an appointment as a

matter of right.

12. The issue/question may be considered from another angle, from

the employer’s point of view. The question is not about whether an

employee was involved in a dispute of trivial nature and whether he has

been subsequently acquitted or not. The question is about the credibility

and/or trustworthiness of such an employee who at the initial stage of

the employment, i.e., while submitting the declaration/verification and/or

applying for a post made false declaration and/or not disclosing and/or

suppressing material fact of having involved in a criminal case. If the

correct facts would have been disclosed, the employer might not have

appointed him. Then the question is of TRUST. Therefore, in such a

24

situation, where the employer feels that an employee who at the initial

stage itself has made a false statement and/or not disclosed the material

facts and/or suppressed the material facts and therefore he cannot be

continued in service because such an employee cannot be relied upon

even in future, the employer cannot be forced to continue such an

employee. The choice/option whether to continue or not to continue

such an employee always must be given to the employer. At the cost of

repetition, it is observed and as observed hereinabove in catena of

decision such an employee cannot claim the appointment and/or

continue to be in service as a matter of right.

13. In view of the afore-stated facts and circumstances of the case,

both, the learned Division Bench as well as the learned Single Judge

have clearly erred in quashing and setting aside the order of termination

terminating the services of the respondent on the ground of having

obtained an appointment by suppressing material fact and filing a false

declaration. The order of reinstatement is wholly untenable and

unjustified.

14. In view of the above and for the reasons stated above, the present

appeals succeed. The impugned judgment and order passed by the

Division Bench, as well as, the order passed by the learned Single

Judge quashing and setting aside the order of termination are hereby

quashed and set aside. Consequently, the writ petition filed by the

25

respondent-employee stands dismissed and the order of termination

stands restored. However, in the facts and circumstances of the case,

there shall be no order as to costs.

……………………………………J.

[M.R. SHAH]

NEW DELHI; ……………………………………J.

SEPTEMBER 17, 2021. [A.S. BOPANNA]

26

once a judicial order was passed by the High Court of Allahabad permitting the appellants to withdraw the 12 writ petition with liberty to file a writ petition before the appropriate court (the High Court of Uttarakhand) and thereafter when the appellants preferred the writ petition before the High Court of Uttarakhand, the learned Single Judge of the High Court of Uttarakhand is not at all justified in making comments upon the judicial order passed by the Coordinate Bench of the Allahabad High Court.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  5667 OF 2021

(Arising out of SLP (C) No. 2815 OF 2020)

UTTAR PRADESH JAL VIDYUT       .. APPELLANT 

(S)NIGAM LIMITED & ORS.      

VERSUS

BALBIR SINGH  .. RESPONDENT (S)

J U D G M E N T

M. R. Shah, J.

Leave granted.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and   order   dated   26.11.2019   passed   by   the   High   Court   of

Uttarakhand at Nainital in Writ Petition No.1314 of 2014 (M/S)

by which the High Court has dismissed the said writ petition

preferred by the appellants herein without entering into the

merits of the case, the original writ petitioner has preferred the

present appeal. 

1

2. The   facts   leading   to   the   present   appeal   in   nutshell   are   as

under:­

That   the   respondent   herein   raised   an   industrial   dispute

challenging his termination dated 15.06.1996. The dispute was

referred   to   the   labour   court.   The   Presiding   Officer,   Labour

Court, Dehradun, passed an award dated 31.05.1997 holding

that the termination order is illegal. The Labour Court directed

the   reinstatement   of   the   respondent   with   full   back   wages.

Feeling aggrieved and dissatisfied with the judgment and award

passed by the Labour Court, Dehradun in case No.180 of 1996,

the   original   petitioners   ­   appellants   herein   preferred   Writ

Petition No.6898 of 1997 before the High Court of Allahabad.

That the High Court of Allahabad passed a conditional interim

order   staying   the   execution   of   award   and   on   condition   to

deposit the entire back wages before the Labour Court. The

appellant complied with the same and deposited the amount of

back wages. That during the pendency of the aforesaid writ

petition, the State of Uttarakhand came to be created and the

jurisdiction of the Labour Court, Dehradun came within the

2

jurisdiction of the State of Uttarakhand. 

2.1 In that view of the matter and in view of Section 35 of the Uttar

Pradesh   Reorganization   Act,   2000,   the   proceedings   pending

before   the   High   Court   at   Allahabad   were   required   to   be

transferred to the High Court having jurisdiction, in the present

case the High Court of Uttarakhand. However, writ petition

No.6898 of 1997 was not transferred by the Chief Justice of the

High Court of Allahabad for whatever reason. Therefore when

writ   petition   No.6898   of   1997   though   was   required   to   be

transferred   to   the  High   Court  of   Uttarakhand   as  what   was

challenged   before   the   High   Court   of   Allahabad   was   the

judgment and award passed by the Labour Court, Dehradun,

the jurisdiction of which subsequently vested with the High

Court   of   Uttarakhand,   came   up   for   hearing   before   the

Allahabad High Court on 24.04.2014 and the Allahabad High

Court was of the view that since the award has been passed by

the Labour Court, Dehradun and therefore the jurisdiction does

not   lie   with   the   High   Court   of   Allahabad   and   therefore

permitted   the   appellants   herein   ­   original   writ   petitioner   to

3

withdraw   the   writ   petition   with   liberty   to   file   fresh   petition

before the appropriate court i.e. High Court of Uttarakhand.

That thereafter the appellants herein preferred the present writ

petition   before   the   High   Court   of   Uttarakhand   which   was

numbered as writ petition No.1314 of 2014, challenging the

award   dated   31.05.1997   passed   by   the   Presiding   Officer,

Labour   Court,   Dehradun   in   case   No.180   of   1996.   That

thereafter the matter was listed before the learned Single Judge

of   the   High   Court   of   Uttarakhand   on   26.11.2019.     By   the

impugned order the High Court has dismissed the said writ

petition without entering into the merits of the case solely on

the ground that in view of the provisions contained under SubSection (2) of Section 35 of the Uttar Pradesh Reorganization

Act, 2000 (hereinafter referred to as ‘the Act’), the power to

transfer the case lie with the Chief Justice of the High Court of

Allahabad  and  therefore the Coordinate  Bench  of  Allahabad

High   Court   was   not   justified   in   granting   liberty   to   the

appellants herein – original writ petitioner to withdraw the writ

petition   with   liberty   to   file   fresh   writ   petition   before   the

4

appropriate   court.   The   Single   Judge   of   the   High   Court   of

Uttarakhand   observed   that   the   liberty   granted   by   the   High

Court of Allahabad permitting the appellants to withdraw the

writ petition pending before it with liberty to file fresh writ

petition before the appropriate court is just contrary to the

provisions contained under Sub­Section (2) of Section 35 of the

Act. 

2.2 Feeling   aggrieved   and   dissatisfied   with   the   impugned   order

passed by the High Court of Uttarakhand, the original writ

petitioners have preferred the present appeal.   

   

3. Having heard the learned counsel appearing for the respective

parties and considering the impugned order passed by the High

Court of Uttarakhand, we are of the opinion that the impugned

order passed by the High Court dismissing the writ petition

without entering into the merits of the case is unsustainable.

3.1 It cannot be disputed that as such on the creation of the State

of   Uttarakhand,   the   jurisdiction   over   the   Labour   Court,

Dehradun would only vest with the High Court of Uttarakhand.

It   also   cannot   be   disputed   that   therefore   as   such   the   writ

petition pending before the High Court of Allahabad challenging

5

the   judgment   and   award   passed   by   the   Presiding   Officer,

Labour Court, Dehradun was required to be transferred to the

High Court of Uttarakhand by the Chief Justice of the High

Court of Allahabad in exercise of power under Sub­Section (2)

of Section 35 of the ‘Act’. 

Section 35 of the Uttar Pradesh Reorganization Act reads as

under:­   

"35.   Transfer   of   proceedings   from   Allahabad   High   Court   to

Uttaranchal High Court:­ 

(1) Except as hereinafter provided, the High Court at Allahabad

shall, as from the appointed day, have no jurisdiction in respect

of the transferred territory. 

(2) Such proceedings pending in the High Court at Allahabad

immediately before the appointed day as are certified, whether

before or after that day, by the Chief Justice of that High Court,

having regard to the place of accrual of the cause of action and

other circumstances, to be proceedings which ought to be heard

and decided by the High Court of Uttarachal shall, as soon as

may be after such certification, be transferred to the High Court

of Uttaranchal.

(3) Notwithstanding anything contained in subsections (1) and

(2) of this  section or in section 28, but save as  hereinafter

provided, the High Court at Allahabad shall have, and the High

Court of Uttaranchal shall not have, jurisdiction to entertain,

hear   or   dispose   of   appeals,   applications   for   leave   to   the

Supreme Court, applications for review and other proceedings

where any such proceedings seek any relief in respect of any

order   passed   by   the   High   Court   at   Allahabad   before   the

appointed  day:  Provided  that   if   after  any   such  proceedings

have   been   entertained   by   the   High   Court   at   Allahabad,   it

appears to the Chief Justice of that High Court that they ought

to be transferred to the High Court of Uttaranchal, he shall

order that they shall be so transferred, and such proceedings

shall thereupon be transferred accordingly. 

(4) Any order made by the High Court at Allahabad. 

6

(a) before the appointed day, in any proceedings transferred to

the High Court of Uttaranchal by virtue of sub­section (2) or 

(b) in any proceedings with respect to which the High Court at

Allahabad retains jurisdiction by virtue of sub­section (3), shall

for all purposes have effect, not only as an order of the High

Court at Allahabad, but also as an order made by the High

Court of Uttaranchal."

As the writ petition before the High Court of Allahabad was

against the judgment and award passed by the Labour Court,

Dehradun, Sub­Section (3) of Section of the Act shall not be

applicable. Therefore, as such, the writ petition before the High

Court of Allahabad was required to be transferred to the High

Court of Uttarakhand. However for whatever reason the writ

petition   filed   by   the   appellants   before   the   High   Court   of

Allahabad being writ petition No.6898 (M/S) of 1997 was not

transferred. Therefore when the writ petition pending before the

High   Court   of   Allahabad   came   up   for   hearing   before   the

Allahabad High Court, the High Court permitted the appellants

to withdraw the said writ petition with liberty to file the same

before the appropriate court i.e. in the present case the High

Court of Uttarakhand. Accordingly, the appellants filed the writ

petition before the High Court of Uttarakhand. However, after 5

years   of   filing   of   writ   petition,   by   impugned   order   dated

7

26.11.2019   the   learned   Single   Judge   of   the   High   Court   of

Uttarakhand has dismissed the said writ petition by observing

that the Coordinate Bench of the Allahabad High Court was not

justified   in   permitting   the   appellants   to   withdraw   the   writ

petition with liberty to file fresh petition before the appropriate

court.   The   learned   Single   Judge   of   the   High   Court   of

Uttarakhand has observed that by permitting the appellants to

withdraw writ petition pending before it with liberty to file the

writ   petition   before   the   appropriate   court   –   High   Court   of

Uttarakhand,   the   Coordinate   Bench   of   the   High   Court   of

Allahabad has barged into to override the provisions contained

under   Sub­Section   (2)   of   Section   35   of   the   Act   by   adoring

himself with the powers of the Chief Justice of Allahabad High

Court as contemplated under Sub­Section (2) of Section 35 of

the Act for transfer of pending matters before the Allahabad

High Court.  It is observed by the learned Single Judge that the

liberty   granted   by   Allahabad   High   Court   permitting   the

appellants to file a fresh writ petition before the appropriate

court dated 24.04.2014, will not make the writ petition tenable

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before the High Court of Uttarakhand and that too when a

challenge   is   given   to   the   impugned   award   before   the

Uttarakhand High Court after 19 years of its pendency. The

learned   Single   Judge   has   also   observed   that   even   the

institution   of   the   writ   petition   before   the   High   Court   of

Uttarakhand   challenging   the   award   passed   by   the   Labour

Court, Dehradun dated 31.05.1997 would be suffering from the

principles of laches.  

3.2 None of the aforesaid grounds are tenable at law. It cannot be

disputed that after the creation of the State of Uttarakhand the

jurisdiction over judgment and award passed by the Labour

Court,   Dehradun   would   vest   with   the   High   Court   of

Uttarakhand   and   not   with   the   High   Court   of   Allahabad.

Therefore, the writ petition pending before the High Court of

Allahabad challenging the judgment and award passed by the

Labour   Court,   Dehradun   was   as   such   required   to   be

transferred by the Chief Justice of the High Court of Allahabad

to the High Court of Uttarakhand in exercise of power under

Section 35 of the Act. For whatever reason the said writ petition

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was not transferred. That does not mean that despite the above,

jurisdiction   of   the   High   Court   of   Allahabad   against   the

judgment and award passed by the Labour Court, Dehradun

would continue. Therefore subsequently when the writ petition

came up before the High Court of Allahabad and having realized

and observed that the jurisdiction against the judgment and

award passed by the Labour Court, Dehradun would vest with

the High Court of Uttarakhand, the High Court of Allahabad

rightly   permitted   the   appellants   to   withdraw   the   said   writ

petition pending before it with the liberty to the appellants to

file   fresh   writ   petition   before   the   appropriate   court.   In   the

present case, the appropriate court would be the High Court of

Uttarakhand only. Therefore as such no error was committed

by the High Court of Allahabad permitting the appellants to

withdraw the writ petition pending before it with the liberty to

file a fresh writ petition before the court having jurisdiction. The

aforesaid cannot be said to be adoring himself with the powers

of the Chief Justice of Allahabad High Court. The judicial order

passed   by   the   High   Court   of   Allahabad   permitting   the

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appellants   to   withdraw   the   writ   petition   pending   before   the

Allahabad High Court with the liberty to file fresh writ petition

before the appropriate court cannot be said to be contrary to

the provisions contained under Sub­Section (2) of Section 35 of

the   Act   as   observed   by   the   learned   Single   Judge   in   the

impugned order. The order under Sub­Section (2) of Section 35

of the Act by the Chief Justice of the Allahabad High Court for

transfer of pending matters before the Allahabad High Court to

the High Court of Uttarakhand is an administrative order. If

that power was not exercised and subsequently it was found

that   proceedings   which   were   required   to   be   transferred   in

exercise of power Sub­Section (2) of Section 35 of the Act, has

not been transferred, it does not preclude the High Court of

Allahabad to pass a judicial order and that too permitting the

appellants to withdraw the writ petition pending before it and to

file it before an appropriate court. As such the High Court in

such a situation would be absolutely justified in permitting to

withdraw the writ petition pending before it with liberty to file it

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before an appropriate court having jurisdiction, on the creation

of the new State – State of Uttarakhand.      

3.3 The another reason which is assigned by the High Court while

passing the impugned order is that if the writ petition is filed

before   it   –   the   High   Court   of   Uttarakhand   challenging   the

judgment   and  award   of  the   Labour   Court,   Dehradun  dated

31.05.1997, it would be suffering from the principles of laches.

The   aforesaid   reason   is   absolutely   unsustainable.   The   High

Court has not appreciated that the writ petition before the High

Court was filed immediately which remained pending before the

High Court of Allahabad for about 14 years and thereafter after

the appellants withdrew the writ petition from the Allahabad

High Court immediately the writ petition was filed before the

High Court of Uttarakhand. Therefore there was no delay at all

on the part of the appellants in challenging the award passed

by the Labour Court, Dehradun.  Therefore in such a situation

there was no question of any delay and laches. 

4. Even otherwise once a judicial order was passed by the High

Court of Allahabad permitting the appellants to withdraw the

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writ   petition   with   liberty   to   file   a   writ   petition   before   the

appropriate   court   (the   High   Court   of   Uttarakhand)   and

thereafter when the appellants preferred the writ petition before

the High Court of Uttarakhand, the learned Single Judge of the

High Court of Uttarakhand is not at all justified in making

comments upon the judicial order passed by the Coordinate

Bench of the Allahabad High Court. The Single Judge of the

High Court of Uttarakhand was not acting as an appellate court

against   the   judicial   order   passed   by   the   High   Court   of

Allahabad   permitting   the   appellants   to   withdraw   the   writ

petition with liberty to file a writ petition before an appropriate

court. Judicial discipline/propriety demand to respect the order

passed   by   the   Coordinate   Bench   and   more   particularly   the

judicial   order   passed   by   the   Coordinate   Bench   of   the   High

Court, in the present case the Allahabad High Court which as

such   was   not   under   challenge   before   it.   Therefore   the

observations made by the High Court of Uttarakhand in the

impugned order on the judicial order passed by the learned

Single   Judge   of   Allahabad   High   Court   dated   24.04.2014

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permitting the appellants to withdraw the writ petition pending

before   it   with   liberty   to   file   fresh   writ   petition   before   the

appropriate court (the High Court of Uttarakhand) is absolutely

unwarranted and is unsustainable. 

5. In   view   of  the   above   and   for  the   reasons   stated  above  the

present appeal succeeds.   The impugned judgment and order

dated 26.11.2019 passed by the High Court of Uttarakhand at

Nainital   in   Writ   Petition   No.1314   of   2014   (M/S)   is   hereby

quashed   and   set   aside.   The   writ   petition   is   directed   to   be

restored   on   the   file   of   the   High   Court   of   Uttarakhand.

Considering the fact that the dispute is very old, we request the

High Court to finally decide and dispose of the Writ Petition

No.1314 of 2014 (M/S) at the earliest and preferably within a

period of six months from the date of receipt of the present

order. The Registry is directed to communicate this order to the

High Court of Uttarakhand forthwith.   No costs.   

…………………………………J.

                   (M. R. SHAH)

New Delhi,    …………………………………J. 

September  13, 2021                             (ANIRUDDHA BOSE)

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