Bhagwan Singh vs Accounts Officer

THIS is an application for review of the order dated 15.1.1998 passed in Appeals No. 219/97 and No. 221/97 by this Commission, whereby this Commission set-aside the order of the District Forum, Rewa, holding that in the matter of retiral benefits of a State Government servant and the claim for payment of General Provident Fund does not lie within the jurisdiction of the Forum as there is no hiring of service as such it does not fall within the purview of ''service'' as defined in Section 2(1)(o) of the Consumer Protection Act, 1986 (for short the ''Act'').

LEARNED Counsel placing reliance on a decision of Supreme Court in Indian Bank v. M/s. Satyam Fibres (India) Private Limited, 1997 (2) CPR 187, submitted that all Courts and Tribunals, Statutory or Administrative possess power to recall their judgments and orders, hence, this Commission in exercise of inherent powers can recall the orders under review. Relying on a decision of National Commission in case of Regional Provident Fund Commissioner v. Shiv Kumar Joshi, I (1996) CPJ 199 (NC), learned Counsel submitted that the Commissioner constituted under the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952 extend out services within meaning of Section 2(1)(o) of the Act to the subscriber. Therefore, when there is delay in settling a claim of provident fund, that would be deficiency in service and the District Forum can redress the grievance. We have given our careful consideration to the submissions made and are of the view that they are devoid of merit. It is well settled that the Courts do not possess inherent power to review their orders. The power to review has to be conferred by law either specifically or by necessary implication. See, Patel Narshi Thakershi & Ors. v. Pradumansinghji Arjunsinghji, AIR 1970 SC 1273. In a recent decision in case of New India Assurance Company Limited v. Surya Credit Limited & Anr., III (1998) CPJ 19 (NC), National Commission, after examining the provisions of the Act and placing reliance on Supreme Court decision in Patel Narshi Thakershi & Ors. (supra), held that no power either specifically or by necessary implication has been conferred upon the FORA constituted under the provisions of the Act to review their order.

The Himachal Pradesh State Consumer Disputes Redressal Commission in case of Hans Raj v. Union of India, II (1998) CPJ 194, after considering the provisions of the Act and in view of the pronouncement of the Supreme Court in Patel Narshi Thakershi & Ors. (supra) has observed that the review is not maintainable as the power to review must be conferred by a law either specifically or by necessary implication.

THE principle laid down by the Supreme Court in case of Indian Bank (supra), is that the Authorities, be they Constitutional, Statutory or Administrative possess power to recall their judgments or orders if they are obtained by fraud. It would be appropriate to refer Paras 20, 21, 22 and 23 which we quote : "20. By filing letter No. 2775 of 26.8.1991 along with the Review Petition and contending that the other letter, namely, letter No. 2776 of the even date, was never written or issued by the respondent, the appellant, in fact, raised the plea before the Commission that its judgment dated 16.11.1993, which was based on letter No. 2776, was obtained by the respondent by practicing fraud not only on the appellant but on the Commission too as letter No. 2776 dated 26.8.1991 was forged by the respondent for the purpose of this case. This plea could not have been legally ignored by the Commission which needs to be reminded that the Authorities, be they Constitutional, Statutory or Administrative (and particularly those who have to decide a list possess the power to recall their judgments or orders if they are obtained by fraud as fraud and justice never dwell together (Fraus et jus nunquam cohabitant). It has been repeatedly said that Fraud and deceit defend or excuse no man (Fraus et dolus nemini patrocitiaa debent). 21. In Smith v. East Elloe Rural District Council, the House of Lords held that the effect of fraud would normally be to vitiate any act or order. In another case, Lazarus Estate Limited v. Beasiey, Denning, LJ. said ''No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.'' 22. THE judiciary in India also possesses inherent power, specially under Section 151, Civil Procedure Code, to recall its judgment or order if it is obtained by fraud on Court. In the case of fraud on a party to the suit or proceedings the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent power are powers which are resident in all Courts, especially of superior jurisdiction. THEse powers spring not from legislation but from the nature and the constitution of the Tribunal or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly ad ministration of the Court''s business. 23. Since fraud affect the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order."

The Andhra Pradesh State Consumer Disputes Redressal Commission in Lalitha Enterprises v. Madduri Eswari & Ors., II (1998) CPJ 669, placing reliance on the decision of Supreme Court in case of Indian Bank (supra), has observed that order can be reviewed only where party is guilty of misrepresentation or fraud.

IN view of the settled position of law, we are of the view that under consumer jurisdiction the judgment and order can be recalled by the District Forum or the Commission under inherent powers where the party is guilty of misrepresentation or fraud. In the case in hand there is no allegation of fraud or misrepresentation, therefore, we are clearly of the view that no review is permissible. Consequently the application for review is not maintainable and is liable to be dismissed. In view of this it is not necessary for us to delve into the question whether the Accountant General renders service and the Consumer Forum has jurisdiction to redress the grievance if any dispute is raised by State Government servant. The applicant if so advised may approach the National Commission or may avail such remedy which may be available to him under law. In the result, the application for review is dismissed. Application dismissed. ________________