The main legal point established is that the suppression of a material fact, such as a settlement memorandum, can lead to the dismissal of a writ petition and justify a refusal to adjudicate upon the claim on merits.

Pradeep Nandrajog, J.

1. Holding that the memorandum of settlement dated January 31, 2008 was a material document; and since in the writ petition filed by the appellant no mention thereto was made, returning a finding that there was a suppression of a material fact and a document, the writ petition filed by the appellant has been dismissed by the learned Single Judge vide impugned order dated July 03, 2009.

2. It is apparent that the learned Single Judge has returned a finding that the appellant has failed to observe Uberrimae fides. It is trite that concerning the extraordinary writ jurisdiction of a Court, if it finds truth being suppressed or misrepresented or a material fact suppressed, the Court would be justified in refusing to adjudicate upon the claim on merits.

3. A perusal of the pleadings of the second respondent, which was the contesting party, would evince that it had pleaded a summary rejection of the writ petition on the plea that two earlier writ petitions on the same subject which were dismissed; one held as not maintainable and the other as withdrawn, which fact was not disclosed. Apart therefrom, it was pleaded that the settlement memorandum dated January 31, 2008 was also suppressed and was a relevant document.

4. In the impugned order the learned Single Judge has noted that the rejection of the writ petition filed by the appellant was prayed by the second respondent on suppression of two counts, but the finding returned is of suppression only on the count of non-disclosure of the settlement memorandum dated January 31, 2008.

5. The learned Single Judge has noted that the maintainability of the writ petition was also questioned on the ground that the relief effectively sought was against respondent No.2 which was not a State within the meaning of Article 12 of the Constitution of India nor was respondent No.2 discharging any public function. But, the learned Single Judge has not dealt with said aspect of the defence raised by the respondent No.2.

6. Relevant facts to be noted for an adjudication of the instant appeal are that telecommunication services in India were provided only by the Government of India. Ministry of Telecommunications, Government of India was the Nodal Ministry and all employees in the telecommunication department were government servants. Overseas Communication Services were also under the Government of India and the employees were government servants. With effect from April 01, 1986 a 100% owned government company was incorporated named Videsh Sanchar Nigam Ltd. (VSNL). The government servants working in the Overseas Communication Services were initially transferred to VSNL and were later on absorbed permanently as employees of VSNL. The employees were apprehensive regarding their service conditions and especially pertaining to disciplinary matters. The appellant which is a union of the employees of Overseas Communication Services raised a demand concerning service conditions of the employees who were to be permanently absorbed in VSNL resulting in two settlements being arrived at, terms whereof were notified vide office memorandums dated July 18, 1989 and December 11, 1989, the former by the Government of India and the latter by VSNL. The service conditions of the employees of VSNL were governed by the said office memorandums including disciplinary matters.

7. Pursuant to a policy of disinvestment privatization of VSNL took place. Its majority and controlling shares were acquired by M/s. Panatone Finvest Ltd., a company owned by the TATA Group of Companies and as a result thereof with effect from February 13, 2002 the Government of India lost controlling power in VSNL. The Government retained only 26% shareholding in VSNL. Somewhere in the year 2007 the name of VSNL was changed to M/s. TATA Communications Ltd.

8. When Overseas Communication Services were sought to be transferred to VSNL, and as noted above a settlement took place between the Union of the employees of Overseas Communic