KULDIP GANDOTRA Vs. UNION OF INDIA

JUDGEMENT

(1.) 1. Fraud and justice never dwell together (fraus et jus nunquam cohabitant) and fraud and deceit defend or excuse no man (fraus et dolus nemini patrocinari debent) are two doctrines which are applied by the Courts to recall earlier orders/judgments.

(2.) Since fraud strikes at the very root of an Order/judgment and effects solemnity, and the Rule of Law, Courts have exercised their inherent power whenever it is brought to their notice that fraud has been practiced. The above principles have been recently reiterated by the Supreme Court in the case of Hamza Haji versus State of Kerala and another reported in (2006) 7 SCC 416, wherein the entire case law on the subject has been extensively examined and considered. In the said case, it has been held that a second review application in law is not maintainable but a Court can exercise it's power as a court of record to nullify a decision procured by playing a fraud. A decision procured by fraud must be set at naught and no person who is guilty of having come to Court with unclean hands and practising fraud should be allowed to take advantage and benefit of an order/judgment obtained and tainted by fraud. Power to recall is somewhat different and distinct from power of review. Power of recall is an inherent power, whereas power of review must be specifically conferred on the authorities/Court (Refer Budhiya Swain versus Gopinath Deb reported in (1994) 4 SCC 396 for the distinction between the two and when power to recall can be exercised).

(3.) The petitioner/non-applicant has succeeded before this Court in the judgment dated 7th October, 2005. The Writ Petition was allowed and it was held that there was no concluded contract as the petitioner's/ non-applicant's proposal for voluntary retirement was withdrawn before acceptance. Accordingly, the petitioner/non-applicant had continued in service of the applicant-respondent. In these circumstances, option was given to the petitioner/non-applicant to refund the amount received under the Voluntary Retirement Scheme to the applicant-respondent with interest and thereafter the applicant-respondent was directed to pay salary, allowances and other retirement benefits to the petitioner/non-applicant with interest calculated on pro-rata basis. It was left open to the respondent-applicant to take action in accordance with law on the question whether the departmental proceedings should be initiated.