‘Suppressing Material Facts Is Just Jugglery Not Advocacy’: J&K HC

It would be extremely relevant to note that while ruling on a very significant legal point pertaining to reinstatement order of ex-constable, the High Court of Jammu and Kashmir and Ladakh at Srinagar in a most learned, laudable, landmark, logical and latest judgment titled State of J&K & Ors Vs Masarat Jan in LPA No. 156/2020 and CM No. 5641/2020 and cited as 2024 LiveLaw (JKL) that was reserved on 30.05.2024 and then finally pronounced on 07.06.2024 while clearly underlining the criticality of transparency in legal proceedings has dismissed a plea that was filed by a former constable who had sought reinstatement in the police force. We need to definitely note here that the High Court in this robust judgment that was delivered by Hon’ble Mr Justice Tashi Rabstan and Hon’ble Mr Justice MA Chowdhary minced just no words absolutely to unequivocally hold here stating very precisely that, “Suppression of concealment of material facts is not advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation which has no place in equitable and prerogative jurisdiction.” There can be just no denying or disputing it.

At the very outset, this brief, brilliant, balanced and bold judgment authored by Hon’ble Mr Justice MA Chowdhary for a Division Bench of the Jammu and Kashmir and Ladakh High Court at Srinagar sets the ball in motion by first and foremost putting forth in para 1 that, “Appellant-State is aggrieved of the judgment dated 17.02.2016 (for short ‘impugned judgment’) passed by the Single Bench of this Court in Review (SWP No.21/2015 c/w SWP No.1134/2009)) titled Masarat Jan Vs. State & Ors., whereby Review Petition was allowed providing that writ petitioner-respondent herein would be deemed to be continuing in service, further directing the appellants to allow her to resume her duty forthwith and to pass orders for release of some monetary benefits in her favour for the period she remained out of service. It is alleged by the appellants that the impugned judgment has been passed without considering and appreciating the material facts, a such, seeks setting aside the same on the ground of concealment of material facts.”

To put things in perspective, the Division Bench envisages in para 2 while dwelling briefly on facts that, “The facts leading to filing of the present LPA are briefly summarized as under:

2.1. The respondent herein was appointed as Constable in Jammu & Kashmir Police vide Order No. 59 of 1999 dated 11.01.1999, however, she unauthorizedly absented herself from duty and was accordingly discharged from duty by SSP Srinagar by virtue of Order No. 317 of 1999 dated 22.04.1999, but was later on reinstated into service on compassionate grounds; that the respondent again absented herself unauthorizedly, and subsequently submitted her resignation showing her inability to work against the said post due to some domestic compulsions. The said request of the respondent was accepted vide DPO Srinagar Order No. 739/2002 dated 10.06.2002.

2.2. That a writ petition SWP No. 1134/2009 came to be filed by the respondent seeking her reinstatement into service on the ground that under threat perception she was compelled to submit her resignation and is willing now to work against the said post; that vide order dated 09.11.2010 this Court in SWP No. 1134/2009, filed by the respondent herein, directed the concerned authorities to take a compassionate view in the matter, taking into consideration the facts and circumstances detailed in the representation, filed by the respondent before the concerned authorities; that in compliance to the said order dated 09.11.2010, the case of the respondent was considered at Police Head Quarters (PHQs) but was found without any merit, as such, was rejected vide Order No. 177/2011 dated 17.01.2011.

2.3. The respondent thereafter filed another writ petition SWP No. 1015/2011, which was, however, dismissed by this Court vide its judgment dated 31-05-2012, observing therein that the petitioner-respondent herein had made it clear in her resignation letter dated 01-06-2002 that she was not willing to serve the Police Department; that the said judgment was assailed by the respondent herein through the medium of LPA No. 212/2013, which was accorded due consideration and the Division Bench was pleased to dismiss the Appeal vide judgment dated 19-05- 2014, making an observation that the case of the respondent herein, throughout, has been that she had tendered resignation which was accepted.”

As it turned out, the Division Bench then enunciates in para 3 that, “The case of the appellants-State herein is that in the year 2015, after a gap of more than five years, the respondent filed Review Petition, seeking review of the order dated 09.11.2010 passed in SWP No. 1134/2009, however, on the perusal of the same, it reveals that the respondent, with malafide intention, had concealed the material facts from this Court, which fact relates to the disposal of her representation by the PHQ, in compliance to the order dated 09.11.2010, dismissal of SWP No. 1015/2011 as well as LPA No.212/2013, which action of concealment of facts amounts to deceitful tactics resorted to by the respondent herein.”

As things stands, the Division Bench then while delving into the factual background points out aptly in para 8 that, “The factual background of the case is that the respondent-review writ petitioner having been appointed as Constable in the year 1999, due to her unauthorized absence was initially discharged on 22.04.1999 by District Police Office Srinagar, however, on her request, she was reinstated in service on compassionate grounds, but she again absented herself unauthorizedly and also submitted her resignation showing her inability to work against the said post due to some domestic compulsions. Her resignation was accepted on 10.06.2002.”

Simply put, the Division Bench states in para 9 that, “After a period of seven years, she filed a writ petition (SWP No.1134/2009) seeking her reinstatement into service on the ground that under threat perception she was compelled to submit her resignation and that she was now willing to work against the said post. This Court vide order dated 09.11.2010 disposed of the petition, without deciding the same on merits, on a submission made by learned counsel for the respondent herein that the appellants herein be directed to consider her representation, which she had filed on 27.05.2007 for re-consideration of her resignation, directing the appellants herein to look into the matter and to take compassionate view after taking into consideration the facts and circumstances detailed in the representation filed by the writ petitioner.”

Do note, the Division Bench notes in para 10 that, “The Director General of Police on 17.01.2011, in compliance to the said directions, considered the representation filed by the respondent- ex-Constable Masarat Jan and noted that she had filed representation after a period of five years seeking reinstatement, however, on the scrutiny of records, indicated that she had lost her job in consequence to the resignation tendered by her with own conscious will, as such, her reinstatement was not warranted and rejected the representation vide Order No. 177/2011 dated 17.01.2011. Aggrieved of this rejection order, respondent-review writ petitioner again filed second writ petition (SWP No.1015/2011), which was disposed of on merits vide judgment dated 31.05.2012, holding that the writ petitioner had no legally enforceable right in her favour to seek setting aside of the resignation, which had been accepted, as such, the petition against rejection order was dismissed, however, the appellants herein were expected to consider the plight of the respondent herein against the backdrop of the circumstances that according to her, she was compelled to submit the resignation as also her resolve to serve the Department and directed to explore chances of her engagement against any available post including the post of Constable in the Police Department.”

Quite naturally, the Division Bench then points out in para 11 that, “Aggrieved of this order passed by the writ court in the year 2012, the respondent-review writ petitioner filed intra-court appeal (LPA No.212/2013), which came to be disposed of on 19.05.2014, upholding the order dated 31.05.2012 passed by the writ court, rejecting the plea of learned counsel for the writ petitioner that the application dated 01.06.2002 moved by the writ petitioner cannot be regarded as a resignation stricto sensu, and rejected this plea having regard to the averments made in SWP No. 1134/2009 decided on 09.01.2010.”

Be it noted, the Division Bench notes in para 12 that, “Respondent-review writ petitioner, without making any mention of the afore-stated development of rejection of her representation, filing subsequent writ petition (SWP No. 1015/2011), judgment passed by the writ court in this petition and upheld by the Division Bench in intra-court appeal (LPA No.212/2013) filed Review Petition against the order dated 09.01.2010, passed by this Court in earlier writ petition (SWP No.1139/2009) filed by her, seeking review of the same. The writ court in the Review Petition, filed by the respondent-review writ petitioner, while observing that a document can be said to be a resignation only when it is shown that a person has tendered it out of her/his own free will and without there being any threat or duress, held that in the facts and circumstances of the case, there was no resignation in law tendered by the review writ petitioner, though in fact resignation letter was submitted by the review writ petitioner, which contention is also denied by the review writ petitioner in the review petition.”

While citing the relevant case law, the Division Bench states in para 13 that, “Undoubtedly, there is material concealment of facts in the present case. The Supreme Court has already settled down the issue as to how a litigant, who conceals material facts from the Court, is to be dealt with. In K.D. Sharma v. Steel Authority of India Limited & Ors, reported as (2008) 12 SCC 481, it was observed that:

“39. If the primary object as highlighted in Kensington Income Tax Commrs., (1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA) is kept in mind, an applicant who does not come with candid facts and “clean breast” cannot hold a writ of the court with “soiled hands”. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court.””

While citing yet another recent and relevant case law, the Division Bench observes in para 14 that, “In a judgment titled ABCD v. Union of India & Ors., reported as (2020) 2 SCC 52, the Supreme Court, in the matter where material facts had been concealed, while issuing notice to the petitioner therein, exercising its suo-motu contempt power, observed as under:

“15. Making a false statement on oath is an offence punishable under Section 181 of the IPC while furnishing false information with intent to cause public servant to use his lawful power to the injury of another person is punishable under Section 182 of the IPC. These offences by virtue of Section 195(1)(a)(i) of the Code can be taken cognizance of by any court only upon a proper complaint in writing as stated in said Section. In respect of matters coming under Section 195(1)(b)(i) of the Code, in Pushpadevi M. Jatia v. M.L. Wadhawan etc., (1987) 3 SCC 367 prosecution was directed to be launched after prima facie satisfaction was recorded by this Court.

16. It has also been laid down by this Court in Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421 that a person who makes an attempt to deceive the court, interferes with the administration of justice and can be held guilty of contempt of court. In that case a husband who had filed a fabricated document to oppose the prayer of his wife seeking transfer of matrimonial proceedings was found guilty of contempt of court and sentenced to two weeks imprisonment. It was observed as under:

“1. The stream of administration of justice has to remain unpolluted so that purity of court’s atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of court’s environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned.

2. Anyone who takes recourse to fraud, deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice. The legal position, thus is that if the publication be with intent to deceive the court or one made with an intention to defraud, the same would be contempt, as it would interfere with administration of justice. It would, in any case, tend to interfere with the same. This would definitely be so if a fabricated document is filed with the aforesaid mens rea. In the case at hand the fabricated document was apparently to deceive the court; the intention to defraud is writ large. Anil Kumar is, therefore, guilty of contempt.””

It is worth noting that the Division Bench notes in para 15 that, “The contention of learned counsel for the respondent- review writ petitioner that she had tendered resignation under ‘compelling circumstances’, citing security concerns of her as well as her family in the period when she submitted her resignation, cannot be gone into, in view of her failure in her earlier endeavours. Respondent-review writ petitioner has, thus, very conveniently withheld the facts from the writ court, dealing with the Review Petition. Had all the facts of rejection of her representation by DG Police, filing subsequent writ petition, judgment passed thereon and on having been challenged, approved by the Division Bench in the intra-court appeal, to the notice of the writ court, the view that has been taken by the writ court, would not have been taken in view of the clear finding recorded by the writ court as well as Division Bench with regard to the acceptance of the resignation.”

Most significantly and so also most forthrightly, the Division Bench mandates in para 16 that, “A writ remedy is an equitable one. While exercising extraordinary power, a Writ Court certainly bears in mind the conduct of the party, who invokes the jurisdiction of the Court. Litigant before the Writ Court must come with clean hands, clean heart, clean mind and clean objective. He/she should disclose all facts without suppressing anything. Litigant cannot be allowed to play ‘hide and seek’ or to ‘pick and choose’ the facts he/she likes to disclose and to suppress/conceal other facts. Suppression of concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If a litigant does not disclose all the material facts fairly and truly or states them in a distorted manner and misleads the Court, the Court has inherent power to refuse to proceed further with the examination of the case on merits. If Court does not reject the petition on that ground, the Court would be failing in its duty. There is a compelling need to take a serious view in such matters to ensure purity and grace in the administration of justice.”

As a corollary, the Division Bench directs in para 17 that, “Having regard to the law laid down by the Apex Court discussed hereinabove and reverting to the facts and circumstances of the case, the finding recorded in the Review Petition, impugned in this Appeal, is not sustainable, due to conduct of the respondent herein. The present Appeal, is, thus, allowed and the impugned judgment is set aside.”

What’s more, the Division Bench then points out in para 18 that, “The respondent-review writ petitioner has been following her case since the year 2009 and, as submitted by her counsel, due to humble and poor background of the respondent, the appellants herein may consider her to be engaged against some post in the J&K Police.”

Finally, the Division Bench then concludes by holding in para 19 that, “LPA is disposed of, as indicated above. There shall be no order as to costs.”

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.