Ram Kishan Arora vs State of Uttarakhand and Others

Sudhanshu Dhulia, J.—Rejoinder affidavit filed in Court today is taken on record.

Heard Sri M.C. Pant, Advocate for the Petitioner, Sri N.P. Sah, Standing Counsel for the State of Uttarakhand as well as Sri B.P.S. Mer, Advocate for Respondent Nos. 2 to 4.

The Petitioner was a conductor in Uttar Pradesh State Road Transport Corporation way back in the year 1996, while he was on duty in a bus, a checking was made and it was discovered that there were 35 passengers in the bus who were not having valid tickets. The inspection team further found that these passengers though had given money to the conductor their tickets had not been given to them. On these set of facts, a departmental proceeding was initiated against the Petitioner. The charges against the Petitioner stood proved and since it was a case of serious misconduct, his services were dismissed vide order dated 7.11.1997.

Aggrieved, the Petitioner made a reference before the Labour Court under the provisions of U.P. Industrial Disputes Act. The Labour Court vide its order dated 28.5.1999 set aside the order of termination of the Petitioner and directed his reinstatement in service. This order was challenged by the Respondent Corporation before this Court by means of a writ petition. The writ petition was partly allowed inasmuch as the Court though did not disturb the findings of the disciplinary authority regarding misconduct on the part of the alleged workman/Petitioner, yet came to the conclusion that the punishment of dismissal was more than what was justified, and hence instead of dismissal order, order of reinstatement with stoppage of 2 increments with cumulative effect and without back wages was passed. In other words, the order of Labour Court was interfered with in a limited way. This order was challenged before the Hon''ble Apex Court by the Respondent Corporation by means of an SLP and after granting leave to the corporation the appeal was allowed and the order of the High Court as well as that of Labour Court was set aside on principle that once the findings of disciplinary inquiry were held to be correct regarding the misconduct of the Petitioner, High Court was not justified under the circumstances in reducing the quantum of punishment. The Hon''ble Apex Court thus held the dismissal of Petitioner from service to be a proper punishment under the circumstances. The matter thus attained finality.

The Petitioner, all the same, has now started a second round of litigation. He now contends that the entire case of corporation was based on fraud and misrepresentation, as the Petitioner has obtained certain documents, under the Right to Information Act, which reveal that the enquiry officer was biased against the Petitioner. It is too late in the day to agitate this issue as the matter has already reached finality by the decision of the Apex Court. Moreover, this Court is of a clear opinion that it is not a case where the issue can be reopened on the basis of fraud and misrepresentation, as alleged by the Petitioner. No interference is called for from this Court.

The Petitioner has relied upon a decision of Supreme Court in A. V. Papayya Sastry v. Government of A.P. and Ors. 2007 (2) SCC 956 (SC) and more particularly paragraph Nos. 38 and 39 of the said judgment, which read as follows:

The matter can be looked at from a different angle as well. Suppose, a case is decided by a competent Court of Law after hearing the parties and an order is passed in favour of the applicant/Plaintiff which is upheld by all the courts including the final Court. Let us also think of a case where this Court does not dismiss SLP but after granting leave decides the judgment to which Article 141 of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order.

The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practicing or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with the law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the Court of first instance or by the final court. And it has to be treated as non est by every Court, superior or inferior.

There can be no quarrel on the aforesaid submissions made by the Petitioner, however, as it has already been stated above this is not a case where an order has been obtained by way of fraud or misrepresentation. It is quite another thing for the Petitioner to allege that based on the evidence before the court, the orders could not have been passed or the same has been passed because of wrong appreciation of the evidence. All the same, since the matter has attained finality, this Court refuses to re-appreciate the matter on its merits.

Writ petition is liable to be dismissed and is hereby dismissed.

No order as to costs.

Interim order, if any, stands vacated.