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Gujarat High Court
Judgename :S.K.Keshote
SARDABEN ISHWARLAL AKHANI - Appellant
Versus
DIRECTOR OF ICDS (SANKLIT BALVIKAS YOJNA) - Respondent
S.C.A. 8189 of 1994
Decided On : 07/12/1995
The extra ordinary jurisdiction under Article 226 of the Constitution of India is equitable and whosoever seeks equity of this court it is expected of him to come up with clean hands, and to place before this court all the facts clearly, unambiguously as well as to produce all the documents. In case the petitioners make attempt to mislead this court, and by misleading this court get order of issue of notice, the writ petition deserves to be dismissed in limine on this ground alone. The writ petition deserves no consideration at all on merits in view of the aforesaid conduct of the petitioners. If such conduct is allowed to be practised before this court, then the very purpose and object of extra ordinary jurisdiction will be misused. These extra ordinary powers are to be exercised in favour of citizens who come with clean hands and their conduct does not suffer from any concealment of facts or suppression of any material document. In view of these facts the writ petition deserves no consideration on merits whatsoever.
[Para 6]
It is settled law that a petitioners is not entitled as a matter of course to writ of certiorari or writ of mandamus. Petitioner is under obligation to the court to make full and correct disclosure of materials facts within his Knowledge and if he does not do so, and suppress any materials fact and thereby obtain an order to issue notice, the court will not grant relief to him on merits.
[Para 8 ]
(b) Constitution of India, 1950 - Arts. 226 & 227 - Exercise of power under - Scope of - When the petitioners have adequate alternative remedy under statute, they have to first resort to that remedy rather than to approach the Court for exercise of extra-ordinary jurisdiction under Constitution.
When the petitioners have available to them adequate, alternative remedy under the statute, they have to first resort to that remedy than to approach this Court under Article 226 of the Constitution of India. In a case where alternative remedy is available under a statute, normally the Court should direct the parties to first resort to the alternative remedy available under the statute. Where alternative remedy can be read in a statute, plea of resort to the remedy under Articles 226 and 227 of the Constitution must be discourraged.
[Para 9]
( 1 ) HEARD the learned Counsel for the parties. The petitioners who were working as female workers at Sanklit Bal Vikas Yojana filed this writ petition before this Court for issuance of directions to the respondents not to terminate their services. Further prayer has been made that pending admission, hearing and final disposal of the writ petition the respondents be directed to maintain status quo.
( 2 ) THIS writ petition is filed by the petitioners before this Court on 23rd June, 1994. On 24th June, 1994 notice returnable on 11th July, 1994 was issued to the respondents. The respondents filed reply to the writ petition and a copy of the same was served on the learned Counsel for the petitioners on 17th October, 1994. After filing of the writ petition, on 16th September, 1994 an application has been filed by the petitioner for amendment of the writ petition. This application was allowed by this Court on 3-10-1994.
( 3 ) BEFORE considering the merits of the case I would like to state the facts regarding the application for amendment of the writ petition. The petitioners have given out in the amendment application that after filing of this petition respondentauthorities, i. e. respondent No. 2 has issued termination order by affixing the order at the petitioners residence. Copy of the order of termination dated 17th May, 1994 is enclosed as Annexure-A. Further averments have been made by the petitioners in the application for amendment of the writ petition that the action of respondent no. 3 is penal in nature because it is based upon misconduct and negligence of the petitioners. No opportunity of personal hearing has been given and also no show cause notice has been given and, therefore, the action of the respondents is bad in law, illegal, unjust, arbitrary, contrary to law and violative of Arts. 14, 16 and 21 of the Constitution of India. It has further been stated that the petitioners did not fulfil the demand of 10% commission made by respondent No. 3 and thereafter at the behest of respondent No. 3, respondent No. 2 has terminated their services. Lastly, prayer has been made by the petitioners to quash and set aside the order of termination.
( 4 ) IT is true, the affidavit-in-reply which has been filed on behalf of respondent No. 2 by the learned Counsel does not bear either the signature of respondent No. 2 himself or even of his counsel. It is really shocking that the name of the depondent has been left blank, and the affidavit has not been affirmed. While receiving copy of the reply on behalf of the counsel for the petitioner, remark has been made, "received unaffirmed copy, subject to Advocates objection, if any". But it is a fact that the averments which have been made in the reply have not been controverted by the petitioners. It is true that this reply has not been signed, but nevertheless this document has been filed, and during the course of argument no objection whatsoever has been taken by the Counsel for the petitioners against this document. In these circumstances I have taken into consideration the affidavitin- reply filed on behalf of respondent No. 2.
( 5 ) IN the reply affidavit respondent No. 2 stated that the petitioners have not approached this Court with clean hands. The respondents have stated that the services of the petitioners were brought to an end vide letter dated 17th May, 1994 which was sent to the petitioners by registered post. The respondents have stated further in the reply that these letters were received by the petitioners. Respondent No. 2 has further stated in the reply that the petitioners were relieved with effect from 6th June, 1994. Despite these clear facts the respondents stated in the reply that the petitioners have filed this writ petition under apprehension. It is a case wherein, it is argued by the learned Counsel for the respondents, the petitioners have suppressed material facts from the Court and as such this writ petition deserves to be dismissed with c
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