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TMI Blog2006 (12) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... xamined 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 practicing 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 v. 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held that there was no concluded contract as the petitioner's/ non-applicant's proposal for voluntary retirement was withdrawn before acceptance.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 applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter to this Court for being heard and disposed of on merits. In terms of the directions issued by the Supreme Court, the matter was head and disposed of vide judgment dated 7th October, 2005. 7. From the documents placed on record and admitted before this Court, the petitioner/non-applicant had during the period 16.61995 - 15.12.1998 and thereafter from 8.3.1999 - 8.9.1999 had worked in RITES. It is obvious that the petitioner could not have mentioned these facts in the Writ Petition which was filed on 22nd September, 1993. However, these facts relating to the employment of the petitioner/non-applicant with RITES should have been brought to the notice of this Court when the matter was heard. It is also apparent that the petitioner/non-applicant did not bring these facts to the notice of the Supreme Court when the appeal was disposed of vide Order dated 31st March, 1999. Even after the judgment was passed and specific directions for payment of arrears of salary was made for the entire period w.e.f September 1993, the petitioner/non-applicant did not move any application or inform this Court about the employment. There is no doubt that the petitioner/non-applicant had delib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether it is true or false. In the present matter, vital and relevant material facts were concealed. The Petitioner/non-applicant was fully aware that true facts were not brought to the notice of the Court. Thus actual fraud has been established and it is not a case of mere constructive fraud. 9. Failure to point out the factum of employment cannot be regarded as a mere secondary fact that was immaterial or irrelevant for granting relief. The facts concealed were not collateral or extraneous. In Story's Equity Jurisprudence, 14th Edition, Vol.1, as quoted in Hamza Haji (supra) it has been observed: Fraud indeed, in the sense of a Court of Equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another, or by which an undue and unconscientiously advantage is taken of another. 10. Thus omission and concealment which involves breach of legal or equitable duty and confidence justly reposed, is equal to fraud. Similarly, the Supreme Court in Bharau Dadu v. State of Maharashtra reported in MANU/SC/0495/2005 : AIR2005SC3330 has held that suppr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orked during the period 16.6.1995 - 15.12.1998 and 8.3.1999 - 8.9.1999. The first option is the only option that we, with some colour and anguish, adopt. 12. In Rajabhai Abdul Rehman Munshi v. Vasudev Dhanjibhai Mody reported in (1964) 3 SCR 481 it has been observed (at p. 488): Exercise of the jurisdiction of the Court under Article 136 of the Constitution is discretionary: it is exercised sparingly and in exceptional cases, when a substantial question of law falls to be determined or where it appears to the Court that interference by this Court is necessary to remedy serious injustice. A party who approaches this Court invoking the exercise of this overriding discretion of the Court must come with clean hands. If there appears on his part any attempt to overreach or mislead the Court by false or untrue statements or by withholding true information which would have a bearing on the question of exercise of the discretion, the Court would be justified in refusing to exercise the discretion or if the discretion has been exercised in revoking the leave to appeal granted even at the time of hearing of the appeal. The observations made above, equally apply whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Cooperative Society Limited v. State of Rajasthan reported in (2005) 12 SCC 149). Therefore, we do not find any merit in the contention raised by the petitioner/non-applicant that the respondent-applicant had filed a SLP against the judgment dated 7th October, 2005 and the same was dismissed. Admittedly, the SLP was dismissed in January, 2006 and the fact that the petitioner/non-applicant had taken employment in RITES came to the knowledge of the respondent-applicant only in May, 2006. 15. In the facts and circumstances of the case, we allow the application and recall our order/judgment dated 7th October, 2005. Writ Petition filed by the petitioner/non-applicant will be treated as dismissed. The cheques given by the petitioner/non-applicant will be returned by the respondent-applicant and will not be encashed. In view of the Order passed above, we are not passing a specific order imposing costs on the petitioner/non-applicant though the facts require imposition of exemplary costs. CM No. 7456 OF 2006 IN WP(C) No. 4458 OF 1993 In view of the order passed above, the application has become infructuous and is accordingly dismissed. - - TaxTMI - TMIT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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