Vasantha v. Chinthamani Co-operative Supermarket & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 10.07.2012CORAMTHE HONOURABLE MR.JUSTICE S.MANIKUMARW.P.No.34085 of 2004Tmt.Vasantha... Petitioner..Vs..1. The Special Officer, Chinthamani Co-operative Supermarket, Chennai – 1.2. The Registrar, Co-operative Society, Kilpauk, Chennai – 10.... RespondentsPrayer: This Writ Petition is filed under Article 226 of theConstitution of India, seeking for a writ of mandamus, directingthe respondents t consider the petitioner's representations dated27.02.2003, 18.10.2003 and 19.10.2004 to settle the entire amountand other benefits for quick disposal.For Petitioner: Mr.K.L.SekarFor Respondents: Mr.Ravi Bharathi (for R1)O R D E RThe petitioner, has sought for a writ of mandamus,directing the respondents to consider her representations dated27.02.2003, 18.10.2003 and 19.10.2004 addressed to the respondents,to settle the entire retiral benefits.2. According to her, at the time of filing of the writpetition, she was working as a Sales Woman in Chinthamani Co-operative Super Market, Chennai. She married one Mr.Gunasekaran on01.05.1987, who was also working as a Sales Man in the same supermarket. The marriage was performed at Thirupathi, as per the Hindurites and customs and that they were living together as husband andwife. Her husband Gunasekaran became ill and he died on26.03.2002. Therefore, she obtained a legal heir certificate andapplied to the Special Officer, Chinthamani Co-operative SuperMarket, Chennai, the 1st respondent for pension, gratuity, P.F.,and Security Deposits. She also received a No Objection letterfrom her brothers-in-law.3. It is the further case of the petitioner thataccepting her claim, pension was sanctioned and on the date of https://hcservices.ecourts.gov.in/hcservices/ filing of the writ petition, she was receiving a sum ofRs.1,125/-, as monthly pension. Provident Fund amount to the tuneof Rs.39,397/-, was also received. The petitioner has furthercontended that when her husband Gunasekaran was working in the 1strespondent Co-operative Super market, he had joined Group InsurancePolicy and after his death, Group Insurance amount Rs.1,00,000/-was sanctioned. But the first respondent disbursed onlyRs.20,000/- from the Group Insurance amount and the balance amountof Rs.80,000/- was not paid. Other fixed deposits amount andbenefits were also not disbursed. In such circumstances, thepetitioner sent representations dated 27.02.2003, 18.10.2003 and19.10.2004, respectively to the respondents. As there was noresponse, left with no other alternative, the petitioner haspreferred the present writ petition. In addition to the abovepleadings Mr.K.L.Sekar, learned counsel for the petitionersubmitted that the pension is being paid periodically. He furthersubmitted that during the pendency of the writ petition, thepetitioner took voluntary retirement. However, there are nomaterial documents to substantiate the same. 4. The Joint Director – Special Officer, the Park TownCo-operative Wholesale Stores Ltd., Chennai, in his counteraffidavit has submitted that the petitioner was a Sales woman inthe 1st respondent store. The 1st respondent has furthersubmitted that one Mr.Gunasekaran was employed in the 1strespondent store. He expired on 26.03.2002. After his death, thepetitioner claiming herself to be the wife, produced a legal heircertificate and sought for retiral benefits. She claimed that hermarriage with the said Gunasekaran, took place on 01.05.1987.Based on the legal heir certificate produced by the petitioner, apart of the Group Insurance amount of Rs.20,000/- out ofRs.1,00,000/- from family benefit fund, was disbursed. However,when the records pertaining to the Service Register of thepetitioner and the Employees State Insurance declaration form-I,were perused, it revealed that the petitioner herself has declaredN.Manickam as her husband and not Gunasekaran. She has also giventhe particulars of her children. Even the said Gunasekaran, whohad expired on 26.03.2002, during his life time in the ESIDeclaration Form-I, had nominated only his father R.Natarajan, asthe nominee to receive the terminal benefits 5. The 1st respondent has further submitted that thelegal heir certificate dated 29.07.2002 has been issued by theTahsildar, Purasaiwalkam, Perambur Taluk, Chennai – 12, withoutdisclosing the other legal representatives. It is also submittedin the counter affidavit that no certificate of marriage withdeceased Gunasekaran or any decree, to substantiate her divorcewith her husband N.Manickam, were produced. It is furthersubmitted that if the petitioner had really married Gunasekaran ason 01.05.1987, she would not have nominated Mr.N.Manickam, ashusband to receive the terminal benefits. https://hcservices.ecourts.gov.in/hcservices/

6. According to the 1st respondent, when the fraudcommitted by the petitioner came to light, disbursement of theremaining amount was stopped. In addition to the above, thelearned counsel for the 1st respondent has refuted payment ofprovident fund amount. 7. Learned counsel further submitted that the petitionerhas not approached this Court with clean hands and hence she is notentitled to the equitable remedy, under Article 226 of theConstitution of India. He also further submitted that thepetitioner has to be punished for perjury against 1st respondentand a judicial enquiry under Section 197 r/w 340 Cr.P.C., may alsobe ordered. Recovery of the part amount paid, has also been soughtfor. In support of the above contentions, the learned counsel forthe 1st respondent, invited the attention of this Court to theentries made in the Service Register of the petitioner dated06.01.1988, service register of the deceased Gunasekar dated01.01.1988, copy of the declaration made by the petitioner underESI Act, regarding nomination of the petitioner dated 19.11.1984,nominating her husband N.Manickam, to receive the benefits and thecopy of ESI Corporation declaration Form dated 24.09.1984,regarding nomination, submitted by the deceased Gunasekaran,nominating his father to receive the benefits. For the above saidreasons, he prayed for dismissal of the writ petition.8. Heard the learned counsel for the parties and perusedthe materials available on record.9. Perusal of the copy of the Service Register of thepetitioner enclosed at Page No.1 of the typed set of papers showsthat the Service Register has been opened on 06.01.1988. It issettled position that entries in the Service Register are made onlyon the basis of the declaration of the employee concerned. In thecertified copy of the declaration form (Regulation No.11 and 12)dated 19.11.1984, i.e., the date of appointment, submitted beforethe ESI Corporation, the petitioner has given the followingparticulars Name of :N.ManickamAge in yearsNominee35 10.07.1951Father's/Husband's :N.Manickam Addressname N.ManickamRelationship of nominee20, J.T.Durairaj Nagar,with the insured person : HusbandAminjikarai, Madras - 2910. The petitioner has declared her husband N.Manickam as thenominee. Thus, it is evident from the service register dated06.01.1988 and the declaration Form-I (Regulation 11 and 12) underThe ESI Corporation Act submitted on 19.11.1984, respectively, thepetitioner, has declared Mr.N.Manickam as her husband. https://hcservices.ecourts.gov.in/hcservices/

11. As rightly pointed out by the learned counsel for the 1strespondent, the legal heir certificate dated 29.07.2002, issued bythe Tahsildar, Purasaiwalkam, Perambur Taluk, Chennai videProceedings in Nee.Mu.No.26014/2002, does not contain the names ofother heirs. The petitioner has obtained the abovesaid certificatestating as if, she is the only legal heir, to late Gunasekaran. 12. The deceased Gunasekaran in his ESI Corporationdeclaration Form dated 24.09.1984, i.e., the date of appointment,has furnished the following particulars.Name of :R.NatarajanAge in yearsNominee65 yearsFather's/Husband's : Addressname No.3, ThanthoniRelationship of nomineeAmman Koil St.,with the insured person : FatherAgaram, M.S.82The deceased Gunasekaran has nominated his father to receive hisfamily fund. 13. When the petitioner in the declaration submitted foropening the service register, as on 06.01.1988, has declaredN.Manickam as her husband and also nominated him to receive theprovident fund and retiral benefits, it is not known as to when shegot divorce from her husband N.Manickam. 14. As per the entries in the declaration form-1 (Regulation11 and 12) dated 19.11.1984, the date on which, she was appointed,the petitioner had a son and two daughters. Her mother was alsostated to be living with her. The claim of marriage on 01.05.1987,with N.Gunasekaran, appears to have been made, only for the purposeof claiming the retiral benefits, due and payable to N.Gunasekaran.In law, the petitioner cannot be a wife of two persons viz.,Mr.N.Gunasekaran, as well as N.Manickam and that would be amountingto polyandry. With a view to receive the terminal benefits due andpayable to Mr.Gunasekaran, she has obtained a legal heircertificate dated 29.07.2002, from the Tahsildar, Purasaiwalkam,Perambur Taluk, Chennai, vide Proceedings in Nee.Mu.No.26014/2002.As rightly pointed out by the learned counsel for the 1strespondent, when the serious discrepancy in the declaration formmade at the time of opening of the service register and theDeclaration Form 1 (Regulation 11 & 12) submitted to the ESICorporation dated 19.11.1984, has come to light, the 1st respondenthas stopped payment of the balance of Rs.80,000/- from and out ofthe Family Benefit Fund. The authorities ought to have verifiedthe Service Register and the Declaration Form of the petitioner, aswell as the records pertaining to the said Gunasekaran, at the timeof authorising pension. In any event, rectification of themistake, has been done. https://hcservices.ecourts.gov.in/hcservices/

15. The averments and the material on record shows thatthe petitioner has approached the authorities as well as thisCourt, for disbursement of retiral benefits contrary to herdeclaration about her marital status with N.Manickam. It isapparent that the claim of the writ petitioner is not bonafide.Remedy under Article 226 of the Constitution of India can beextended to only those, who approach this Court with clean hands.In this context, it is relevant to extract few decisions.(a) In Arunima Baruah v. Union of India reported in 2007 (6)SCC 120, the Supreme Court held as follows:"12. .......It is also trite that a person invokingthe discretionary jurisdiction of the court cannot beallowed to approach it with a pair of dirty hands. Buteven if the said dirt is removed and the hands becomeclean, whether the relief would still be denied is thequestion.13. In Moody v. Cox [(1917) 2 Ch. 71: (1916-17)All ER Rep 548 (CA)], it was held: (All ER pp. 555 I-556D)"When one asks on what principle this issupposed to be based, one receives in answer the maximthat anyone coming to equity must come with clean hands.I think the expression “clean hands” is used more oftenin the textbooks than it is in the judgments, though itis occasionally used in the judgments, but I was verymuch surprised to hear that when a contract, obtained bythe giving of a bribe, had been affirmed by the personwho had a primary right to affirm it, not being anillegal contract, the courts of equity could be soscrupulous that they would refuse any relief notconnected at all with the bribe. I was glad to find thatit was not the case, because I think it is quite clearthat the passage in Dering v. Earl of Winchelsea [(1787)1 Cox Eq Cas 318: 2 Bos & P 270], which has been referredto, shows that equity will not apply the principle aboutclean hands unless the depravity, the dirt in question onthe hand, has an immediate and necessary relation to theequity sued for." 14. In Halsbury’s Laws of England, 4th Edn.,Vol. 16, pp. 874-76, the law is stated in the followingterms:“1303. He who seeks equity must do equity.—Ingranting relief peculiar to its own jurisdiction a courtof equity acts upon the rule that he who seeks equitymust do equity. By this it is not meant that the courtcan impose arbitrary conditions upon a plaintiff simplybecause he stands in that position on the record. Therule means that a man who comes to seek the aid of acourt of equity to enforce a claim must be prepared tosubmit in such proceedings to any directions which theknown principles of a court of equity may make it properto give; he must do justice as to the matters in respect https://hcservices.ecourts.gov.in/hcservices/ of which the assistance of equity is asked. In a court oflaw it is otherwise: when the plaintiff is found to beentitled to judgment, the law must take its course; noterms can be imposed.** *1305. He who comes into equity must come withclean hands.—A court of equity refuses relief to aplaintiff whose conduct in regard to the subject-matterof the litigation has been improper. This was formerlyexpressed by the maxim ‘he who has committed iniquityshall not have equity’, and relief was refused where atransaction was based on the plaintiff’s fraud ormisrepresentation, or where the plaintiff sought toenforce a security improperly obtained, or where heclaimed a remedy for a breach of trust which he hadhimself procured and whereby he had obtained money. Laterit was said that the plaintiff in equity must come withperfect propriety of conduct, or with clean hands. Inapplication of the principle a person will not be allowedto assert his title to property which he has dealt withso as to defeat his creditors or evade tax, for he maynot maintain an action by setting up his own fraudulentdesign.The maxim does not, however, mean that equitystrikes at depravity in a general way; the cleanlinessrequired is to be judged in relation to the reliefsought, and the conduct complained of must have animmediate and necessary relation to the equity sued for;it must be depravity in a legal as well as in a moralsense. Thus, fraud on the part of a minor deprives him ofhis right to equitable relief notwithstanding hisdisability. Where the transaction is itself unlawful itis not necessary to have recourse to this principle. Inequity, just as at law, no suit lies in general inrespect of an illegal transaction, but this is on theground of its illegality, not by reason of theplaintiff’s demerits.”(b) In Udayami Evam Khadi Gramodyog Welfare Sanstha v. State ofU.P., reported in 2008 (1) SCC 560, at Paragraph 16, held asfollows:"15. A writ remedy is an equitable one. A personapproaching a superior court must come with a pair ofclean hands. It not only should not suppress any materialfact, but also should not take recourse to the legalproceedings over and over again which amounts to abuse ofthe process of law. 16. Though there is no proof that the petitioner, isbeing paid monthly pension, on the facts and circumstances of this https://hcservices.ecourts.gov.in/hcservices/ case, this Court is of the view that when the petitioner hasreceived certain payments by producing documents like a legal heircertificate from the Tahsildar, contrary to the entries made in theservice register dated 06.01.1988 and the Declaration Form(Regulation 11 and 12) of the ESI Corporation dated 19.11.1984, itis open to the respondents to take appropriate action for stoppingpension, if they so desire, after providing a reasonableopportunity. The question of taking criminal action, is left opento the authorities to decide. Fraud cannot be allowed to beperpetuated. However, in so far as the amounts already received bythe petitioner, recovery at this juncture would cause hardship asthe petitioner is also stated to have retired some time back. Thepetitioner has not made out a case for issuance of a Mandamus. Forthe reasons stated supra, the writ petition is dismissed. NoCosts.sd/- Assistant Registrar /True Copy/ Sub Assistant RegistrararsTo1. The Special Officer, Chinthamani Co-operative Supermarket, Chennai – 1.2. The Registrar, Co-operative Society, Kilpauk, Chennai – 10.1 CC to Mr.M.Ravibharathi, Advocate, SR.40359 1 CC to Mr.K.L.Sekar, Advocate, SR.40127 1 cc To The Government Pleader, SR.40403W.P.No.34085 of 2004SRA(CO)SRA(03/08/2012)