Ram vs Ministry of Urban Development

Dr. Chhabilendra Roul, Member (A)

M.A.1674/2024

The present MA has been filed by the applicant seeking execution of the Order dated 14.11.2017 passed in OA No. 3517/2013, whereby this Tribunal directed the respondents to pay the applicant gratuity, final pension and commuted value of pension along with the interest at GPF rate on the gratuity amount alone for the period from 26.09.2013, i.e., the date of filing of the present OA, till the date of actual payment thereof, within a period of three months.

The factual matrix of the case is that the applicant joined the service in the respondent-Department as a Junior Engineer on 19.02.1977. He was promoted to the rank of Assistant Engineer on 1.07.1988, and to the rank of Executive Engineer in May 2005. He retired from service on 31.01.2010 on attaining the age of superannuation. During his service period, a criminal case was filed against the applicant by the CBI in the year 2004. On 22.08.2010, the CBI Court directed for reinvestigation of the matter. Subsequently, the CBI Court convicted the applicant under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988, sentencing him to one year of imprisonment along with a fine of Rs. 1,000/-. Thereafter, vide order dated 05.02.2016, the applicant filed an appeal before the High Court. The High Court, vide order dated 04.05.2016, suspended the sentence. While the proceedings were ongoing before this Tribunal in OA 3517/2013, the respective counsels failed to apprise the Tribunal of the latest stage of the criminal proceedings before the Learned Special Judge. This has been explicitly mentioned in paragraph 8 of the order dated 14.11.2017 in the OA.

The respondents filed a Review Application No. 60/2018 seeking modification of the order dated 14.11.2017 because new facts have come into light and this Tribunal on 06.09.2019 took note of the new facts mentioned by the respondents in para 2 of the RA order which is reproduced below:-

“2. The review applicants have sought to review of the aforesaid order of the Tribunal on the grounds that the parties could not be brought to the notice of the Tribunal order F.No.14/13/6/4/2004-VS.I dated 28 June, 2017 passed by the President imposing the penalty of "withholding of 100% of monthly pension otherwise admissible to the CO" nor could they apprise the Tribunal of the present stage of the criminal proceedings in the Court of ld. Special Judge.”

This Tribunal declined to interfere with the order of this Tribunal dated 14.11.2017 and rejected the RA on 06.09.2019.

The present MA for implementation of the order dated 14.11.2017 was filed by the applicant in the month of May 2024. The learned counsel for the applicant in the MA pleads for implementation of the order dated 14.11.2017 stating that despite 7 years have lapsed since passing order in the OA, the respondents have failed to implement the order. The applicant is a senior citizen who was retired in 2010 and since then he has been deprived of his legitimate retiral benefits including gratuity, commuted value of pension and associated benefits. In view of this, he pleads that the respondent should be directed to implement the order dated 14.11.2017.

Per contra, learned counsel for respondents submits that the respondents have already passed order dated 20.08.2017 imposing the penalty of withholding the 100% of monthly pension otherwise admissible to the applicant based on the conviction in the Criminal Court. The applicant was in the knowledge of this conviction and he never bothered to bring this to the notice of this Tribunal while the proceedings in the OA was going on. Because of this concealment of the fact, the Tribunal has passed the impugned order dated 14.11.2017. He submits that when a particular order has been obtained with concealment of the facts, the said order cannot be implemented. In support of his contention, the learned counsel for the respondents cites the judgment of the Hon’ble Apex Court in S.P. Chengalvaraya Naidu (Dead) by LRs Vs. Jagannath (Dead) by LRs and others, (1994) 1 SCC 1. He particularly refers to para 6 of the said judgment, which is reproduced as follows:-

“The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Ex. B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Ex. B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.”

He further cites the judgment of the Hon’ble Delhi High Court in Union of India Vs. Jagat Ram Trehan & Sons, AIR 1996 DELHI 191 order dated 01.01.1996. In para 3 (9) (3) of the said order, the issue has been framed in the following manner:-

“(3)Whether it was open to the Union of India, as a judgment-debtor, to raise the question that the award and decree were nullities, in an application under Section 47 Civil Procedure Code ?”

The Hon’ble High Court has given its finding in para 21 which reads as follows:-

“21) Points 3.4 That question is whether a plea that the award is void can be raised in execution proceedings. On this question respondent contended that the award must have been objected to under Sections 17,30 and 33 or by appeal against the Order rejecting objections and if that was not done, it was not open to raise the question in execution proceedings. This contention, in our view, is not correct. That Section 47 applies to execution proceedings taken pursuant to a decree making an award a rule of Court cannot be doubted. The decided cases, referred to below, also hold it is open to the executing court under Section 47 to declare that the award is passed without jurisdiction and that therefore the decree passed thereupon is also null and void and not executable. (See in this connection: Ran Singh vs. G.A. Coop Service Society, Sabawwa Hanmappa vs. Basappa Andemappa (Ilr 1955 Bombay 386); E.D. Sasson and Co. Ltd.- Shivji Ram - Devi Das - Judgment-debtors (AIR 1929 Lahore 228); Gopi Ram Jaithu Ram vs. Rami Dos Sri Kishan (AIR 1934 Lah. 49) and Donald Graham & Co. vs. Kewalram and others (AIR 1921 Sind 132). We have therefore no hesitation in holding that this Ea is maintainable under Section 47 to declare the award and the consequent decree as nullities.”

Learned counsel for respondents submits that the facts of the aforesaid cases are similar as in the present case. There was a particular decree obtained from a Court without jurisdiction and, therefore, the decree passed thereupon was considered null and void and not executable. In the instant case, learned counsel for respondents submits that the order in the OA No.3517/2013, dated 14.11.2017 was obtained by concealing the fact regarding the criminal convictions well as the order passed by the respondents in withholding his pension 100% which was passed in 2017 prior to the final decision in the said OA. In view of this he submits that the order dated 14.11.2017 is not executable.

In rejoinder, learned counsel for applicant submits that both the parties were responsible in not bring the fact that the criminal court has convicted the applicant vide its order dated 05.04.2016. Hence the respondents cannot now take the stand that it was the applicant alone who concealed the facts regarding the criminal conviction of the applicant by the Criminal Court.

Analysis:

7.1 Here the issue is the executability of the order dated 14.11.2017 in OA No.3517 of 2013 in view of the penalty order dated 28.06.2017 passed by the respondents. The implication of order dated 14.11.2017 is that the Tribunal ordered the respondents to release all retirement benefits. But, the order by the respondents dated 28.06.2017 effectively runs counter to the order dated 14.11.2017, though, it was passed subsequently. Neither the applicant nor the respondents brought to the notice of the Tribunal regarding the order dated 28.06.2017 nor the penalty in the criminal case pertaining to the applicant. Because of this, the order dated 14.11.2017 was passed. I am restraining myself to opine whether the order dated 14.11.2017 was due to concealment of the fact about order dated 28.06.2017 or due to conniving by both the parties. Nevertheless, it was passed without the fact of passing order dated 28.06.2017 being brought to the notice of Tribunal. If order dated 14.11.2017 is ordered to be executed, then in effect it will nullify order dated 28.06.2017, which was never challenged nor it was the subject matter of the OA No.3517/2013. Moreover, the applicant in the present OA waited for 7 years after passing of the order dated 14.11.2017 for execution, without furnishing any valid reason. It is again not clear nor it was brought out by the applicant, whether order dated 28.06.2017 has been challenged or not. Under such circumstances, I am of the opinion that the applicant has not approached this Tribunal in the present OA with clean hands. It has cleverly concealed the above facts to get the order of the Tribunal dated 14.11.2017 executed, when such order is not in realm of “executable”, because of apparent ‘concealment’ of facts by either of the parties while this order was passed post the respondents’ action vide order dated 28.06.2017. The two judgments cited by the learned counsel for the respondents are not directly applicable. Rather, those judgments refer to deliberate acts of fraud or concealment of facts to obtain a particular decree in favour of the petitioner. Here, the fault lies with both the applicant as well as the respondents.

In view of the above analysis, I decline to entertain the present MA. It is, therefore, dismissed. No order as to costs.