Bharat Sanchar Nigam Limited through Chairman-Cum- Managing v. Birendra Prasad Sinha

Patna High Court CWJC No.15137 of 2012 (9) dt.07-08-2013 2 passed within three months, the dues of the respondent be released with 8 % from the date of retirement. The petitioners had contended that they were justified in withholding the amount under Rule 69 (c) of the C.C.S. (Pension) Rules 1972 on account of pendency of criminal case bearing no. RC 38 (5) 93 which provides that no gratuity shall be paid until the conclusion of the departmental and judicial proceeding and issuance of final order thereof. The Tribunal has opined that considering the superannuation of the respondent on 31.01.2002, 10 years prior to the order, the petitioners having not been able to conclude the proceedings, the appellants were directed to conclude the proceeding within a maximum period of three months, failing which they were required to release the dues of the applicants with interest @ 8% from the date of retirement. Counsel for the petitioners submitted that the allegations against the respondent were serious for having caused revenue loss of approximately 33 lakhs to the department. The matter has been investigated by the Central Bureau of Investigation after which the Vigilance case was lodged. The respondent has been charge sheeted. It was not within the control of the petitioners to expedite the Vigilance case which lay with the C.B.I. alone. The grant of relief contrary to the statutory provisions was therefore not justified. Counsel for the respondent supported the order Patna High Court CWJC No.15137 of 2012 (9) dt.07-08-2013 3 urging that there are no allegations against him for delaying the Vigilance case. He cannot be left at the mercy of the petitioners in the guise of statutory powers. The respondent was suspended on 03.07.1993 under Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules 1965 in contemplation of a departmental proceeding. Charges were framed and served on 14.07.1993. Written statement of defence was submitted on 16.07.1993 denying the charges. After considering the written statement suspension was withdrawn on 17.07.1993. The departmental proceedings were then abandoned by the petitioners. The charges both in the departmental proceedings and criminal case are the same. We had called for a report from the concerned Court before which the Vigilance case is pending. The report of the Special Judge CBI-III, Patna, states that charges were framed on 19.05.2005 and since then the case was pending for prosecution evidence. Of the 36 witnesses cited in the charge- sheet only 7 have been examined till date. It is apparent the delay in the progress of the trial is exclusively attributable to the prosecution itself. In the nature of the allegations, it is also apparent that the prosecution witnesses primarily would be consisting of departmental witnesses. We do not appreciate the conduct of the petitioners in not placing the aforesaid facts before us and relying on Rule 69 (c) simplicitor. The petitioners falling within the category of “State” under Article 12 of the Patna High Court CWJC No.15137 of 2012 (9) dt.07-08-2013 4 Constitution had a primary duty to place the true and correct facts before us and render proper assistance for adjudication. Withholding of relevant information from the Court, amounts to trying to mislead the Court. The submissions by the counsel that he has not been made aware with regard to the details of the manner in which the Vigilance case was proceeding, the blame must be taken by the Officers of the Corporation. We are of the opinion that the order of the Tribunal was, but an observation for conclusion of the judicial proceedings pending in the Vigilance Court. It is not the case of the petitioners that they have made any application before the Tribunal for extension of time even. The petitioners cannot rely upon statutory provision to take advantage of their own lapses thus abusing the statutory powers. It was observed in (2007) 11 SCC 447 (Kusheshwar Prasad Singh V. State of Bihar) as follows:- “14. In this connection, our attention has been invited by the learned counsel for the appellant to a decision of this Court in Mrutunjay Pani V. Narmadda Bala Sasmal wherein it was held by this court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin Maxim commodum ex injuria sua nemo habere debet (no party can take undue advantage of his own wrong).

15. In Union of India V. Major General Madan Lal Yadav the accused army personnel himself was responsible for delay as he escaped from detention. Then he raised an objection against initiation of proceedings on the ground that such proceedings ought to have been Patna High Court CWJC No.15137 of 2012 (9) dt.07-08-2013 5 initiated within six months under the Army Act, 1950. Referring to the above maxim, this Court held that the accused could not take undue advantage of his own wrong. Considering the relevant provisions of the Act, the Court held that presence of the accused was an essential condition for the commencement of trial and when the accused did not make himself available, he could not be allowed to raise a contention that proceedings were time-barred. This Court (at SCC p. 142, para 28) referred to Broom’s Legal Maxims (10th Edn.), p. 191 wherein it was stated: “It is a maxim of law, recognized and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognized in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure.”

16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, “a wrongdoer ought not to be permitted to make a profit out of his own wrong.” We find no reason to interfere with the order dated

03.04.2012 passed by the Tribunal. The application is dismissed. P.K./- (Navin Sinha, J) (Vikash Jain, J)