T.R. Ravi, J.:— The Original Petition has been filed by a stranger to the proceedings, challenging the order dated 10.01.2020 in O.A. No. 824 of 2019 on the file of the Central Administrative Tribunal, Ernakulam Bench (hereinafter referred to as the Tribunal). This Court granted leave to the petitioners to file the Original Petition by order dated 18.11.2020. The petitioners challenge Ext.P20 order issued by the Tribunal and Ext.P25 order issued by the 3 respondent.
2. Respondents 1 and 2 filed the Original Application before the Tribunal alleging that their employer (BSNL) has been delaying the payment of salary from February, 2019 onwards and that amounts due to the various financial institutions which were being deducted from the salary of the applicant are not being remitted to their credit since May, 2019, resulting in threat of coercive action for recovery, by the said financial institutions. The applicants before the Tribunal have stated that loans have been availed from the Employees Co-operative Society Ltd. and the Government Employees Co-operative Bank, Thiruvalla and amounts were being deducted from their salary for payment to the financial institutions on a monthly basis. Even though the grievance projected appears to be that salary is denied and remittance towards loans are not being made, the prayers made in the Original Application would make it appear that the applicants are praying for disbursal of the amounts deducted from their salary, instead of the specific direction seeking the respondents to remit such amounts to the financial institutions. The financial institutions have also not been made party to the proceedings, though in our opinion, they were necessary parties, having regard to the prayers made in the Original Application. The Original Application was disposed of by the Tribunal by order dated 10.01.2020, directing the employer BSNL not to make any deduction from the salary of the applicants henceforth towards the loans availed by them and to pay the entire salary due to the applicants from December, 2019, so that they can pay their outstanding dues to the Bank and other financial institutions from their salary.
3. It is aggrieved by the above direction that the petitioner, who is one of the institutions to which amounts are due from the applicants, has approached this Court. The petitioner contends that under Section 37 of the Co-operative Societies Act, applicants before the Tribunal had executed the agreements in favour of the petitioner Bank, authorising their employer to deduct from their salary the amounts specified in the agreement and pay the same to the petitioner towards the amounts owed by the applicants to the petitioner.
4. Heard Sri. S. Subhash Chand on behalf of the petitioner, Sri. Vishnu S. Chempazhanthiyil on behalf the 1 respondent and Sri. T. Sanjay, Standing Counsel for respondents 3 to 7. The notice issued to the 2 respondent has not returned after service. In the light of the orders that we propose to issue, we are of opinion that it is not necessary to wait for completion of notice on the 2 respondent.
5. The 1 respondent has filed a preliminary objection that the original petition is not maintainable before this Court in the light of the judgments of this Court in W.P. (C) No. 20979 of 2010 and O.P. (KAT) No. 1286 of 2003, wherein this Court relying on the judgment of the Hon'ble Supreme Court in Rajeev Kumar v. Hemraj Singh Chauhan reported in [(2010) 4 SCC 554], has held that the grievance of third parties, who are not parties before the Tribunal, have to be raised before the Tribunal itself and they cannot be permitted to approach this Court under Articles 226 and 227 of the Constitution of India, treating the High Court as a court of first instance. The learned counsel for the petitioner on the other hand submits that the above decisions cannot in any way fetter the right of the petitioners to approach this Court, invoking its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India, particularly, having regard to the fact that the party respondents have committed fraud on the Court while obtaining orders from the Tribunal in O.A. No. 824 of 2019 and before this Court in O.P. (CAT) No. 36 of 2020, without making the petitioners as parties to the case, knowing fully well that the petitioners are necessary parties.
6. In Rajeev Kumar supra [(2010) 4 SCC 554], the Hon'ble Supreme Court considered the effect of the Larger Bench judgment of the Hon'ble Supreme Court in L. Chandra Kumar v. Union of India reported in [(1997) 3 SCC 261] and after referring to paragraph 93 of the Larger Bench judgment, in paragraph 11 it was held as follows;
“11. On a proper reading of the abovequoted two sentences, it is clear:
(a) The Tribunals will function as the only court of first instance in respect of the areas of law for which they have been constituted.
(b) Even where any challenge is made to the vires of legislation, excepting the legislation under which tribunal has been set up, in such cases also, litigants will not be able to directly approach the High Court “overlooking the jurisdiction of the Tribunal”.
7. A Division Bench of this Court in the judgment in Gireesh Babu M.B. v. Pavithran T.T.V. reported in [2013 (3) KHC 165] followed the judgment in Rajeev Kumar supra [(2010) 4 SCC 554] and held that persons who are not parties before the Tribunal ought to have approached the Tribunal instead of approaching the High Court by treating it as a court of first instance. The effect of the judgments in Rajeev Kumar supra [(2010) 4 SCC 554] and Gireesh Babu supra [2013 (3) KHC 165] came up for consideration before a Full Bench of this Court in Haris K.M. v. Jahfar K. reported in [(2020) 4 KLJ 846]. The Full Bench in paragraph 9, 11 and 27 held as follows;
“9. On a consideration of the totality of these circumstances, the principles laid down in Rajeev Kumar (Supra) and Gireesh Babu (Supra) will not in any way affect the rights of persons who were parties in one or other O.A.'s, to get impleaded in the original petition, even though they were not parties in the particular original application from which the original petition arises. The rights of such persons cannot be treated at par with the rights of persons who were strangers to the proceedings. None of these persons can or need to approach the Tribunal with a review petition or any other petitions, since they are beneficiaries of the judgment of the Tribunal. Even the strangers to the O.A's who would stand affected by the decision of this Court in the O.P. would have a right to seek for impleadment since the respondents before the Tribunal were impleaded in a representative capacity and every person similarly situated is deemed to have been represented before the Tribunal. Hence Haris too has a right to be impleaded and heard, in defense of the order of the Tribunal.
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11. We are not considering the merits of the claim for impleadment alone, but a reference of a Division Bench as to whether the cited decisions of this Court and of the Hon'ble Supreme Court would act as an inviolable rule that none who are parties before the Tribunal could approach this Court, either as petitioners or seek impleadment as respondents; in the latter case for resisting or supporting the order of the Tribunal. We do not and cannot contemplate all of the situations that may arise. For clarity we consider a few, which could in normal circumstances arise, which only occur when there is outright rejection or acceptance of the claims raised in the Original Application, before the Tribunal.
(a) When the Original Application is dismissed by the Tribunal:
The applicants before the Tribunal can no doubt approach this Court and challenge the decision of the Tribunal. All the same, persons seeking similar reliefs as the Applicants, are not entitled to get themselves impleaded in the original petition filed by the Applicants, merely to ensure that they too get the benefit of the order of this Court, if there is reversal of the order of the Tribunal. Such persons have to necessarily approach the Tribunal with a review or a fresh original application and only thereafter can they approach the High Court, based on the decision of the Tribunal. At the same time, persons identically situated to the respondents in the above said illustration, who were not parties before the Tribunal, will not be entitled to seek impleadment in the original petition filed by the Applicants, to support the dismissal of the Original Application, since that is a case covered by Rajeev Kumar (supra).
(b) When the Original Application is allowed by the Tribunal:
The respondents in such cases can approach this Court and file an original petition to challenge the judgment of the Tribunal. However, in such original petitions, persons similarly placed like the successful applicants before the Tribunal cannot seek impleadment and claim the same relief as the Applicants. Nor can they get impleaded, for the purpose of supporting the order of the Tribunal. The remedy available to such persons is either to approach the Tribunal with a fresh original application or to wait for the result of the original petition, since they cannot be allowed to bypass the Court of first instance. Whether they choose to file an original application while the original petition is pending or they file it after the original petition is dismissed, it would be for the Tribunal to consider whether they are guilty of delay or laches. As regards, persons similarly situated as respondents, their remedy is not to approach this Court and get impleaded in the original petition filed by the respondents. They will have to seek a review of the judgment before the Tribunal. Such situation is similar to the one in Gireesh Babu (supra).
(c) A unique situation that may arise is the one which has occasioned this reference, the facts of which have already been detailed earlier. In such situations, we are of the opinion that all persons who were respondents before the Tribunal in any of the original applications, which has been jointly dismissed by a common judgment, are entitled to get themselves impleaded in an original petition filed against the judgment in one such original application, since they are all persons entitled to be treated as parties to the “proceedings” and are not persons who have bypassed the court of first instance. This would also apply to persons who are interested and are affected, but were not physically present before the Tribunal, since they are deemed to be represented by those respondents impleaded, in a representative capacity, that too after a paper publication. So also, those petitioners in I.A.1294 of 2018, who are similarly situated to such respondents, who also had approached the Tribunal for similar reliefs and have either succeeded before the Tribunal or their original application is pending consideration, are also persons entitled to get themselves impleaded, to support the decision in the original application, since such persons cannot be treated as having bypassed the court of first instance and at the same time are likely to be affected by the decision in the original petition.
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27. In the manner in which we have understood the decisions in Rajeev Kumar (supra) and Gireesh Babu (supra), we are not in a position to accept the propositions of law laid down in S. Prabha (supra) and Rajesh (supra) and we overrule the judgments in so far as they hold that that the original petition was maintainable directly to the High Court at the instance of third parties. With all due respect to the Division Bench, we are of the opinion that entertaining the original petition at the instance of third parties, was against the dictum laid down in Rajeev Kumar (supra) and Gireesh Babu (supra). We are of the considered opinion that both the Division Benches in S. Prabha (supra) and Rajesh (supra), if they were in disagreement with the judgment of the Division Bench in Gireesh Babu (supra) ought to have referred the matter to a Full Bench.”
(emphasis supplied)
8. Even though the Full Bench has stated in paragraph 11 that it is not possible to contemplate all the situations that may arise, we are of the opinion that the present case is one in which the petitioners will have to approach the Tribunal as the court of first instance and place their grievance before the Tribunal. In Gireesh Babu supra [2013 (3) KHC 165], the Division Bench has in paragraph 6 noted as follows;
“6. Incidentally, the Apex Court had also noted in Rajeev Kumar that the Tribunal has also the power of review. We do not see that expression, as excluding any other mode available before the Tribunal, for grant of relief, to persons who were entitled to be heard, if found so; yet, not heard before the verdict was handed down by it.
9. In the light of the dictum laid down by the Apex Court and by the Division Bench and Full Bench of this Court in the aforesaid decisions, we find that there is considerable force in the preliminary objection raised by the 1 respondent that the petitioner is not entitled to approach this Court as the Court of first instance. However, that is not to say that we approve of the conduct of the 1 respondent in having not made the petitioner as party to the proceedings.
10. It can be seen that the Division Bench in Gireesh Babu (Supra) had contemplated not only the remedy of review, but also left open any other mode available before the Tribunal for grant of relief to persons who are entitled to be heard, but were not heard while rendering the impugned judgment. Apparently, the Division Bench had made the observation, being aware of the legal position that a power of review is not necessarily an inherent power and the same will have to be exercised within the four corners of the statutory provision which is the source of the power.
11. On the question of other remedies being available to a person who, though entitled to be heard before an order affecting him is issued, was neither made a party nor heard, the Hon'ble Supreme Court has held that the Courts in India are invested with powers to recall their orders in certain situations, in exercise of their inherent powers. In paragraph 19 of the decision in Sunitadevi Singhania Hospital Trust v. Union of India, reported in [(2008) 16 SCC 365], the Apex Court held as follows:
“19. It is true that the period of limitation specified in terms of sub-section (2) of Section 129-B of the Customs Act, 1962 is required to be observed but the Tribunal failed to notice that it has inherent power of recalling its own order if sufficient cause is shown therefor. The principles of natural justice, which in a case of this nature, in our opinion, envisage that a mistake committed by the Tribunal in not noticing the facts involved in the appeal which would attract the ancillary and/or incidental power of the Tribunal necessary to discharge its functions effectively for the purpose of doing justice between the parties, were required to be complied with.”
12. Earlier, in the decision in Indian Bank v. Satyam Fibres (India) Pvt. Ltd. ., reported in [(1996) 5 SCC 550], the Hon'ble Supreme Court in paragraphs 20 to 23, dealt with the inherent power of Court in cases of fraud and stated the law as follows:
“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 practising 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 lis) 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 patrocinari debent).
21. In Smith v. East Elloe Rural Distt. Council [[1956] A.C. 736 : (1956) 1 All ER 855 : [1956] 2 WLR 888] the House of Lords held that the effect of fraud would normally be to vitiate any act or order. In another case, Lazarus Estates Ltd. v. Beasley [[1956] 1 Q.B. 702 : (1956) 1 All ER 341 : [1956] 2 WLR 502] (QB at p. 712), Denning, L.J. 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 CPC, 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 powers 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 tribunals 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 administration of the court's business.
23. Since fraud affects 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. (See : Benoy Krishna Mukerjee v. Mohanlal Goenka [AIR 1950 Cal 287]; Gajanand Sha v. Dayanand Thakur [AIR 1943 Pat 127 : ILR 21 Pat 838]; Krishnakumar v. Jawand Singh [AIR 1947 Nag 236 : ILR 1947 Nag 190]; Devendra Nath Sarkar v. Ram Rachpal Singh [ILR (1926) 1 Luck 341 : AIR 1926 Oudh 315]; Saiyed Mohd. Raza v. Ram Saroop [ILR (1929) 4 Luck 562 : AIR 1929 Oudh 385 (FB)]; Bankey Behari Lal v. Abdul Rahman [ILR (1932) 7 Luck 350 : AIR 1932 Oudh 63]; Lekshmi Amma Chacki Amma v. Mammen Mammen . [1955 KLT 459].) The court has also the inherent power to set aside a sale brought about by fraud practised upon the court (Ishwar Mahton v. Sitaram Kumar [AIR 1954 Pat 450]) or to set aside the order recording compromise obtained by fraud. (Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh [AIR 1958 Pat 618 : 1958 BLJR 651]; Tara Bai v. Krishnaswamy Rao [AIR 1985 Kant 270 : ILR 1985 Kant 2930].”
13. Apart from contending that Ext.P20 order of the Tribunal has been issued as a result of a fraud played by the applicants on the Court, Sri. S. Subhash Chand, learned counsel for the petitioner has also raised a contention that Exts.P20 and P25 can only relate to the deductions from the salary and do not in any way relate to deductions that may be made from the pensionary benefits due to respondents 1 and 2. We find considerable force in the above said contention raised by the counsel. In paragraph 7 of Ext.P20 which contains the operative portion of the order, the Tribunal has specifically directed that no further deductions from the salary of the applicants before the Tribunal shall be made towards the loans availed by the applicants and that the entire salary due to the applicants from December, 2019 onwards should be paid. The order further says that if the entire salary is paid to the applicants, it would facilitate them to directly pay off the amounts outstanding to the concerned financial institutions in time. It is thus clear that the Tribunal had only restrained making of further deductions from the salary and nothing more. So also, Ext.P25 issued by the BSNL to the petitioner herein refers to the order of the Tribunal dated 10.01.2020 in O.A. No. 824/2019 and says that the previous agreement signed by the AO (Estt.) of the BSNL office for making monthly recovery stands null and void and recovery from the applicants before the Tribunal is not possible on implementation of the order of the Tribunal. Ext.P25 has been issued only on the basis of the order of the Tribunal and it cannot be understood to mean that the BSNL is not entitled to make any recovery from the pension or other retirement dues payable to the applicants before the Tribunal, if they are otherwise entitled in law. Ext.P25 can only be understood to be an information from the BSNL to the petitioner regarding the directions contained in Ext.P20 order of the Tribunal which restrains the BSNL from making any deductions from the salary. We also note that Section 37 of the Co-operative Societies Act, under which agreements are executed by the members of the Society in favour of the Society, authorising their employers to make deductions from the salary payable to them and to pay the amount so deducted to the Society, refers only to ‘salary’. Since the applicants before the Tribunal have already retired from service, the question of deduction from the salary no longer arises. We hence make it clear that Exts.P20 and P25 will not in any way affect the right, if any, of the petitioner to recover the amounts due to them from the applicants before the Tribunal, from the retirement/pensionary benefits.
14. Having said so, we feel that it may not be proper on our part to relegate the petitioners to the Tribunal by merely observing that the remedy is to file a review before the Tribunal. Instead, we leave open all the remedies of the petitioner before the Tribunal, including the remedy by way of review as well as the remedy to approach the Tribunal for recalling its order, since the petitioner has taken a contention that the orders were obtained by playing fraud on the Tribunal as well as this Court.
15. The writ petition is hence disposed of, with liberty to the petitioner to approach the Central Administrative Tribunal, Ernakulam Bench by filing either a petition for review of its order dated 10.1.2020 in O.A. No. 824 of 2019 or with any other application, including an application for recalling the order above stated. In case such petition is filed beyond the period of limitation that is prescribed, it will be open to the petitioner to seek condonation of the delay in filing such applications and the petitioner will be entitled to plead that the period taken for prosecution of this original petition before this Court is liable to be excluded for calculation of the period of delay as envisaged in Section 14 of the Limitation Act. If such a petition is filed by the petitioner, the Tribunal may dispose of the same at the earliest, in accordance with law and having regard to the observations contained in this judgment. It is made clear that we are not making any observation regarding the correctness or otherwise of the contentions of the parties, which are left to be considered and decided by the Tribunal.
16. In the circumstances of the case, there will be no order as to costs.
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