Judgment :- Harish Tandon, J. Amidst the pendency of the contempt petition, an application for recalling of the order dated 15th June, 2012 passed in W.P.No. 18415 (w) of 2011 is taken out by the respondents. This Court proposes to hear out the application for recalling in preference to a petition for Contempt’s of Court. The salient facts, which this Court feels to address, the issues are adumbrated herein below: The writ petition being W.P.No. 18415 (w) of 2011 was filed by Assistant Primary Teacher challenging the decision of the Director of Pension, Provident Fund and Group Insurance, West Bengal in deducting a sum of Rs. 1,45,844/- from the retiral benefits unilaterally. It is stated in the writ petition that the service of the petitioner was approved as Assistant Primary Teacher and after rendering a qualifying service of nearly 33 years attained superannuation on 31st August, 1991. The scale of pay, from time to time, was revised in terms of ROPA 1981 and 1990 which was duly recorded in service book by the District Inspector of Schools. After submitting all the papers before retirement, the pensionary payment order was issued wherefrom it appears that a sum of Rs.1,45,844/- was deducted as “overdrawal”. In Paragraph 8 of the writ petition, it is averred that the petitioner met with the Assistant Inspector of School and the District Inspector of Schools to ascertain the reason as to why such amount has been deducted unilaterally. It is categorically stated in Paragraph 9 of the writ petition that the Sub-Inspector of Schools forced the petitioner to submit an undertaking for deduction of the excess amount from his gratuity. In Paragraph 12 thereof, it is categorically stated that because of the change of option, the service of the petitioner was extended which cannot be said to be on misrepresentation or fraud committed by the employee. At the time of admitting the writ petition, directions were given for filing the affidavits by the parties on 11th January, 2012. The writ petition, thereafter, came up for final hearing on 15th June, 2012 when the respondents were not represented. The Court proceeded to pass the order directing the authorities to pay the amount deducted from the retiral benefits after recomputing the pensionary payment order along with an interest @ 4% from the date of attainment of superannuation till its actual payment. The Court proceeded to pass the order directing the authorities to pay the amount deducted from the retiral benefits after recomputing the pensionary payment order along with an interest @ 4% from the date of attainment of superannuation till its actual payment. Subsequently, the matter appeared on 6th December, 2012 for correction of the typographical error and by an order of the even date, the error in order dated 15th June, 2012 was corrected. Despite this order being communicated, the respondent authorities did not comply the said order which constrained the petitioner to file the contempt application before this Court. While entertaining the contempt application, this Court directed the petitioner to serve the copy of the contempt application upon the alleged contemnors by speed post and to file an affidavit of service on the next date. The contempt application further appeared on 8th August, 2013. This Court issued the contempt Rule upon the alleged contemnors as despite service, there was no appearance on their behalf. After the service of the contempt Rule, the alleged contemnors appeared duly represented by their Counsels and informed the Court that an application being C.A.N. No. 11773 of 2013 is filed for recalling the order dated 15th June, 2012 as the same was passed by grossly suppressing the material facts. When the said application was listed, the learned Counsel representing the alleged contemnor no.1 submitted that there is a fatal defect in the said application and sought leave to withdraw the same with liberty to file afresh on the self-same cause of action. Pursuant to the leave, the fresh application being C.A.N. 12176 of 2013 is filed by which the respondents prayed for recalling the order dated 15th June, 2012 passed in W.P. No. 18415 (w) of 2011. Paragraph 1 & 2 of the said application contains the statement of facts of the writ petition and direction by this Court to exchange affidavits. In Paragraph 3 thereof, the respondents say that the petitioner is not entitled to get the benefit of ROPA 1990 unless he refunds the amount received for the overstay in service beyond the age of 60 years. Reference is made to several litigations filed before this Court and the orders passed therein. In Paragraph 3 thereof, the respondents say that the petitioner is not entitled to get the benefit of ROPA 1990 unless he refunds the amount received for the overstay in service beyond the age of 60 years. Reference is made to several litigations filed before this Court and the orders passed therein. Paragraph 4 contains the statement that the petitioner submitted the undertaking for adjustment of the amount of Rs.1,44,844/- and have suppressed the said fact in the writ petition which amounts to fraud upon the Court. Paragraph 5 contains the submissions that the learned Advocate for the respondents was not properly instructed at the time of the disposal of the writ petition and, therefore, all the facts could not be placed before the Court. In the backdrop of the aforesaid facts, the respondents sought for recalling the order dated 15th June, 2012 having obtained by suppressing the facts amounting to fraud. Mr. Kamalesh Bhattacharya, the learned Advocate for the respondents submits that if the order is passed by practicing fraud upon the Court, it should be immediately recalled upon detection thereof as the person cannot be allowed to take benefit of an order obtained as such. He further submits that the fraud upon the Court is always viewed seriously and once commission of fraud is brought to the notice of the Court, the Court should recall the order. In support of the aforesaid contentions, he placed reliance upon a judgment of the Supreme Court in case of A.V. Papayya Sastry v. Govt. of A.P. reported in (2007) 4 SCC 221 and United India Insurance Co. Ltd. –v- Rajendra Singh & Ors; reported in (2000) 3 SCC 581 . He, therefore, submits that there is no impediment on the part of the Court to recall its order obtained on fraud. The learned Advocate for the petitioner of the writ petition submits that all the facts were duly narrated in the writ petition and, therefore, it cannot be said that there was any suppression of facts by his client. He further submitted that an opportunity to file an affidavit-in-opposition was given by this Court at the time of admitting the writ petition but the petitioner choose not to file the same; even did not appear when the writ petition came up for final disposal. He further submitted that an opportunity to file an affidavit-in-opposition was given by this Court at the time of admitting the writ petition but the petitioner choose not to file the same; even did not appear when the writ petition came up for final disposal. Lastly he submits that the petitioner is, in effect, seeking a review of the order in the guise of recall which is impermissible. Having heard the respective submissions, the first and foremost question begging an answer is whether there was a suppression of the material facts amounting to fraud inviting the Court to recall its order. Before proceeding to deal with the legal aspect, it would be apposite to narrate the facts discernible from the pleadings of the parties. It was categorically stated in the writ petition that the petitioner exercised the change of option which was permissible at the relevant point of time without making any false or misrepresentation or practicing fraud either on the respondents or the Court. There is a categorical averment in Paragraph 9 of the writ petition about furnishing the undertaking which, according to the petitioner, was done under duress or force in order to get the retiral benefit promptly. The facts stated, in extenso, in the recalling application though not averred as such but there is a reflection of those facts in the writ petition. It is a settled law that if a case of fraud or misrepresentation of such dimension is discovered, the very basis of the order passed by the Court is affected. The Court can recall its order provided such fraud is clear on the face of the record. It is no longer res integra that the fraud and equity cannot dwell together. The fraud vitiates all solemn act. If the fraud or coercion is alleged in the petition, it must be set out with full particulars required under Order VII Rule 4 of the Code. Since the fraud affects the solemnity, regularity and orderliness of the proceeding of the Court, the Court have inherent power to set aside an order obtained by fraud. Fraud is an act of deliberate deception with the design to secure something by taking unfair advantage of another and fraud one gains at the loss of another. Since the fraud affects the solemnity, regularity and orderliness of the proceeding of the Court, the Court have inherent power to set aside an order obtained by fraud. Fraud is an act of deliberate deception with the design to secure something by taking unfair advantage of another and fraud one gains at the loss of another. There is hardly any quarrel to the aforesaid propositions that once it is successfully proved that the order is an outcome of fraud, the Court shall recall its order as such order cannot be said to be legal, valid and in consonance with law as held in A.B. Papayya (supra) in these words: “26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of “finality of litigation” cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants. 27. In S.P. Chengalvaraya Naidu v. Jagannath this Court had an occasion to consider the doctrine of fraud and the effect thereof on the judgment obtained by a party. In that case, one A by a registered deed, relinquished all his rights in the suit property in favour of C who sold the property to B. Without disclosing that fact, A filed a suit for possession against B and obtained preliminary decree. During the pendency of an application for final decree, B came to know about the fact of release deed by A in favour of C. He, therefore, contended that the decree was obtained by playing fraud on the court and was a nullity. The trial court upheld the contention and dismissed the application. The High Court, however, set aside the order of the trial court, observing that “there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence”. B approached this Court. 28. The trial court upheld the contention and dismissed the application. The High Court, however, set aside the order of the trial court, observing that “there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence”. B approached this Court. 28. Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as “wholly perverse”, Kuldip Singh, J. stated: (SCC p. 5, para 5) “The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.” (emphasis supplied) 29. The Court proceeded to state: (SCC p. 5, para 6) “A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.” 30. The Court concluded: (SCC p. 5, para 5) “The principle of ‘finality of litigation’ cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants.” 31. In Indian Bank v. Satyam Fibres (India) (P) Ltd. referring to Lazarus Estates and Smith v. East Elloe Rural Distt. Council this Court stated: (SCC pp. 562-63, para 22) “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. 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.” (emphasis supplied) 32. In United India Insurance Co. Ltd. v. Rajendra Singh by practicing fraud upon the Insurance Company, the claimant obtained an award of compensation from the Motor Accident Claims Tribunal. On coming to know of fraud, the Insurance Company applied for recalling of the award. The Tribunal, however, dismissed the petition on the ground that it had no power to review its own award. The High Court confirmed the order. The Company approached this Court. 33. Allowing the appeal and setting aside the orders, this Court stated: “15. It is unrealistic to expect the appellant Company to resist a claim at the first instance on the basis of the fraud because the appellant Company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the Company to file a statutory appeal against the award. Not only because of the bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then. 16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim. 17. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim. 17. The allegation made by the appellant Insurance Company, that the claimants were not involved in the accident which they described in the claim petitions, cannot be brushed aside without further probe into the matter, for the said allegation has not been specifically denied by the claimants when they were called upon to file objections to the applications for recalling of the awards. The claimants then confined their resistance to the plea that the application for recall is not legally maintainable. Therefore, we strongly feel that the claim must be allowed to be resisted, on the ground of fraud now alleged by the Insurance Company. If we fail to afford to the Insurance Company an opportunity to substantiate their contentions it might certainly lead to a serious miscarriage of justice.” The expression ‘fraud’ has been succinctly explained by the Supreme Court in case of Meghmala –v- G. Narasimha Reddy reported in (2010) 8 SCC 383 in the following: “33. Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of courts of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The expression “fraud” involves two elements, deceit and injury to the person deceived. It is a cheating intended to get an advantage. [Vide Vimla (Dr.) v. Delhi Admn., Indian Bank v. Satyam Fibres (India) (P) Ltd., State of A.P. v. T. Suryachandra Rao, K.D. Sharma v. SAIL and Central Bank of India v. Madhulika Guruprasad Dahir.] 34. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. Suppression of a material document would also amount to a fraud on the court. (Vide S.P. Chengalvaraya Naidu, Gowrishankar v. Joshi Amba Shankar Family Trust, Ram Chandra Singh v. Savitri Devi, Roshan Deen v. Preeti Lal, Ram Preeti Yadav v. U.P. Board of High School & Intermediate Education and Ashok Leyland Ltd. v. State of T.N.) 35. In Kinch v. Walcott it has been held that: “… mere constructive fraud is not, at all events after long delay, sufficient but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury”. Thus, detection/discovery of constructive fraud at a much belated stage may not be sufficient to set aside the judgment procured by perjury. 36. From the above, it is evident that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken away. In such an eventuality the questions of non-executing of the statutory remedies or statutory bars like doctrine of res judicata are not attracted. Suppression of any material fact/document amounts to a fraud on the court. Every court has an inherent power to recall its own order obtained by fraud as the order so obtained is non est.” It is, thus, clear that once the fraud is alleged, there should be a categorical statements that there is a willful and deliberate suppression of the material facts with an intend to gain something which could not otherwise be gained if those facts are brought before the Court. This Court does not find that there was any conscious and deliberate attempt on the part of the writ petitioner in suppressing the material facts with an intent to achieve something in his favour. This Court does not find that there was any conscious and deliberate attempt on the part of the writ petitioner in suppressing the material facts with an intent to achieve something in his favour. There is no hesitation in my mind that recourse to recall the order is devised to shed the lapses and latches on the part of the respondents for non-filing of the affidavit-in-opposition even permitted by the Court. What is intended to achieve is to revisiting and/or rewriting of the order disposing of the writ petition in the guise of recall. It is apparent from the conduct of the petitioner that a review is sought in the guise of recall which is impermissible. It has been held by the Apex Court in case of Delhi Administration vs. Gurdip Singh Uban reported in (2000) 7 SCC 296 that the Court should not permit hearing of an application for clarification, modification or recall if the application is in substance a clear move for review. Any attempt to seek the review of an order in guise of an application as one for clarification is deprecated as held in case of Common Cause reported in (2004) 5 SCC 222 . The same view is reiterated by the Supreme Court in case of Ram Chandra Singh vs. Savitri Devi reported in (2004) 12 SCC 713 which is further accepted and applied by the Supreme Court in a later decision rendered in case of State of Haryana –vs- M.P. Mohla reported in (2007) 1 SCC 457 . Before concluding, this Court cannot resist its temptation to refer the recent judgment of the Supreme Court rendered in case of State of Punjab & others etc. –v- R. Masih (white washer) Civil Appeal No. 11527 of 2014 dated December 18, 2014 wherein it is held that where the payments have made mistakenly by the employer in excess of the entitlement of the employee, recovery from a retired employee or the employees who are due to retire within one year of the order of recovery is impermissible in law. It is apt to quote Paragraph 12 of the said judgment which runs thus: “It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. It is apt to quote Paragraph 12 of the said judgment which runs thus: “It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class –III and Class-IV service (or Group ‘C’ and Group ‘D’ service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover.” This Court, therefore, does not find that the application seeking recall of the order dated 15th June, 2012 holds any substance. The application is thus dismissed. However, in the circumstances of this case, there shall be no order as to costs. The contempt application shall be listed after two weeks.