Shivpyar Tripathi vs State of Bihar & Ors

Heard learned counsel for the petitioner; State; E.P.F.O. and respondent no. 5.

Pursuant to order dated 16.07.2018, the respondent no. 5 is also present in Court.

The respondent no. 5 was directed to be present in Court to explain her conduct which has been noted in the order dated 16.07.2018. However, no

show cause on her behalf has been filed in such terms, though, a counter affidavit has been filed on her behalf.

The Court is surprised. When a person is called to explain his/her conduct, it presupposes filing of a show cause. Counter affidavit is only with regard

to reply to the contentions and averments made in the writ petition or in the pleadings to which the counter affidavit is being filed. When a person is

called to explain his or her conduct, there is no question of any counter affidavit, as it is a charge to which the person has to reply by filing proper

show cause. This is a major lapse on the part of the respondent no. 5. Firstly, she chose to ignore the communication of the Court for appearing and

explaining matters and thereafter instead of explaining her conduct, she filed a counter affidavit. The Court was, thus, of the opinion that strict order

was required to be passed for such blatant defiance of the order of the Court. However, on apology tendered by her in person and also for the reason

that it was her counsel and not her, who was responsible for not filing a show cause instead of counter affidavit, which the Court records was a grave

lapse on the part of the learned counsel concerned, being an officer of the Court and a qualified legal practitioner, the Court, taking a lenient view in

the matter and accepting the unqualified apology tendered by her and the assurance that in future such conduct shall not be repeated, does not propose

to proceed further on the issue and the same stands consigned.

Coming to the merits of the matter, from the pleadings on record, especially the reply filed on behalf of the petitioner today, it appears that he had

not disclosed payment of Rs. 13,452/- made on 02.01.2014, with regard to his E.P.F. payment due to which the authorities had paid him Rs. 18,000/-

during the pendency of the writ petition, which was in excess of what was actually due to him. The admitted position today is that only Rs. 16,204/-

was payable to the petitioner but he was paid Rs. 18,000/- as the authorities had initially proceeded on the basis of the averments made in the writ

petition

Having regard to the aforesaid, the Court cannot over emphasize the fact that in judicial proceedings, especially while moving the High Court under

its extraordinary prerogative and discretionary writ jurisdiction under Article 226 of the Constitution, the foremost requirement is that the person

coming to Court does so with clean hands by disclosing all relevant facts and materials without any suppression. Payment of Rs. 13,452/- having

already been credited into his account in January, 2014 and the writ petition being filed in May, 2016, without disclosing the aforesaid fact, certainly

indicates lack of bona fide.

For the reasons aforesaid, besides being obliged to return the excess payment, the Court deems it appropriate to also impose cost on the petitioner.

Accordingly, let Rs. 2,000/- be returned through Bank draft in favour of the Regional Provident Fund Commissioner, E.P.F.O., Patna. The same be

done within two weeks from today and receipt filed in the Registry of the Court. Further, for such conduct, cost of Rs. 5,000/- is imposed on the

petitioner to be deposited in the Juvenile Justice Fund of the State Social Welfare Department and receipt filed thereafter in the Registry of the Court.

If compliance of the order is not made and receipt not filed latest by 25th August, 2018, Registry shall place the matter before the Bench for further

orders.

The writ petition stands disposed off in the aforementioend terms.

Personal appearance of the respondent no. 5 is