Central Administrative Tribunal - Jaipur
Gulab Bai vs M/O Railways on 26 March, 2024
1
MA No. 307/2022 in TA No. 1/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
MISC. APPLICATION NO. 307/2022
in
TRANSFERRED APPLICATION NO. 1/2019
Order Reserved on: 12.03.2024
DATE OF ORDER: 26.03.2024
CORAM
HON'BLE MS. RANJANA SHAHI, JUDICIAL MEMBER
HON'BLE MR. LOK RANJAN, ADMINISTRATIVE MEMBER
Smt. Gulab Bai Widow of Late Shri Kanhaiyalal Ji,
aged about 65 years, R/o Village Harna, Post Hindoli,
District Bundi (Raj.).
....Applicant
Shri Anupam Agarwal, counsel for the applicant.
VERSUS
1. Union of India through Secretary, Railway
Department, New Delhi.
2. The General Manager, West Railway, Church Gate,
Mumbai - 20.
3. The Divisional Railway Manager, D.R.M. Office,
Kota.
.... Respondents
Shri Lalit Mohan Bhardwaj, counsel for respondents
ORDER
Per: RANJANA SHAHI, JUDICIAL MEMBER The present Misc. Application has been filed by the applicant under Rule 24 of the Central Administrative Tribunal (Procedure) Rules, 1987 read with Section 22 2 MA No. 307/2022 in TA No. 1/2019 (3) (f) of the Administrative Tribunals Act, 1985 and Rule 17 of the Central Administrative Tribunal (Procedure) Rules, 1987 for recalling / reviewing of the judgment dated 13.05.2022 passed by this Tribunal in T.A. No. 1/2019 and also praying for withdrawal of the said original T.A. with liberty to file fresh / amended application.
2. Brief facts of the case are that the applicant is widow of the employee, who expired in the year 1972. The widow had filed SBCWP No. 325/2008 challenging the order dated 21.03.2003 with the prayer to give family pension and compassionate appointment to her son and the same was transferred by the Hon'ble High Court of Rajasthan, Jaipur Bench vide its order dated 30.10.2019 to this Tribunal, which was registered as TA No. 1/2019. The husband of the widow was Substitute Chainman with the respondent-railways. This Tribunal dealt with all the aspects and grounds taken therein and ultimately dismissed the said T.A. vide its order dated 13.05.2022. The operative para 7 and 8 of the order dated 13.05.2022 read as under: -
"7. Since the applicant has neither produced any rule in support of her claim nor any evidence to support her claim that her husband fulfilled the conditions if any prescribed under any of those rules, we are unable to grant the requests made in the T.A. This is not to speak of the inordinate delay of decades in the filing of this T.A. (and even the earlier Writ Petition before the Hon'ble 3 MA No. 307/2022 in TA No. 1/2019 High Court), which is, in itself a more than sufficient reason to dismiss the T.A., without having even a cursory look at the claims made in it.
8. The TA is, therefore, dismissed as it is with respect to a claim that is hopelessly barred by period of limitation prescribed under the Administrative Tribunals Act. We also do not find any merit in the claim for compassionate appointment made 4 decades after the death of an employee; and in the claim for family pension which is not supported by any evidence. No costs."
The applicant has filed the present Misc. Application for recalling / reviewing of the said judgment dated 13.05.2022 passed by this Tribunal and also for withdrawal of the original T.A., which has been adjudicated vide order dated 13.05.2022 by this Tribunal, with liberty to file fresh / amended application with better particulars, pleadings and documents.
3. In their reply, the respondents have taken preliminary objection stating that the present M.A. deserves to be dismissed on the ground of maintainability of this M.A. The respondents have averred in their reply that under the garb of filing a review application, applicant cannot be permitted to re-open the old case and overruled arguments for reopening the conclusions arrived at in a judgment. They have further stressed that the power of review cannot be confused with the appellate power which 4 MA No. 307/2022 in TA No. 1/2019 enables the superior courts to correct the errors committed by a subordinate court.
4. The respondents further state that the present matter is not maintainable as no such affidavit as prescribed under Rule 17(5) of CAT (Procedure) Rules, 1987, was filed along with the present M.A. Further, the scope of review / recalling the order / judgment is very limited and the same can only be entertained if there is any error apparent on the face of record, which the applicant have failed to point out in the instant case. They have also relied upon Section 114 of CPC, which is the substantive provision dealing with the scope of review. The respondents in para 6 of the reply have submitted that a glance of the aforesaid provisions makes it clear that the review application would not be maintainable; which can be seen as under: -
"(i) discovery of new and important matters or evidence which, after exercise of due diligence, were not within the knowledge of the applicant or could not be produced by him when the decree was passed or the order made.
(ii) on account of some mistake or error apparent on the face of the record; or
(iii) for any other sufficient reason."5
MA No. 307/2022 in TA No. 1/2019
5. The respondents state that it is settled proposition of law that "an error that is not sufficient and the one that has to be detected by the process of reasoning, cannot be described as an error apparent on the fact of record, for the court to exercise the powers of review". Further, in exercise of review jurisdiction, the court cannot re-appreciate the evidence arrived at a different conclusion even if two views are possible in the matter.
6. Heard both sides and perused the material available on record.
7. Through the present M.A., review of the judgment dated 13.05.2022 is sought under Section 22(3)(f) of the Administrative Tribunals Act, 1985 read with Rule 17 of the Central Administrative Tribunal (Procedure) Rules, 1987, which reads as follows: -
The Administrative Tribunals Act, 1985 "22. Procedure and powers of Tribunals.
(1) xxxxx (2) xxxxx (3) A Tribunal shall have, for the purposes of [discharging its functions under this Act], the same powers as are vested in a civil court under the Code of Civil Procedure, 1905 (5 of 1908) while trying a suit, in respect of the following matters, namely:-6
MA No. 307/2022 in TA No. 1/2019
(a) to (e) xxxxx
(f) reviewing its decisions;
(g) to (i) xxxxx"
The Central Administrative Tribunal (Procedure) Rules, 1987 "17. Application for review.-(1) No application for review shall be entertained unless it is filed within thirty days from the date of receipt of copy of the order sought to be reviewed.
xxxxx
5. No application for review shall be entertained unless it is supported by a duly sworn affidavit indicating therein the source of knowledge, personal or otherwise, and also those which are sworn on the basis of the legal advice. The counter affidavit in review application will also be a duly sworn affidavit wherever any averment of fact is disputed."
8. Going through the grounds taken by the applicant in the present M.A., we find that she is simply seeking re-adjudication of the matter / grounds which she had taken in the original T.A. After going through the judgment of this Tribunal dated 13.05.2022, it is seen that this Tribunal had at length gone into the merits of the case. In fact, this Tribunal even expressed sympathy for the old and handicapped widow but due to non-production of any rule in support of her claim nor any evidence in support of her claim, this Tribunal showed inability to grant the relief. This Tribunal mentioned in para 6 of the impugned order that since the applicant did not 7 MA No. 307/2022 in TA No. 1/2019 produce any rule, so the Hon'ble Members on their own searched for enabling circulars (through internet) and found one of the relevant rules, which was reproduced in para 6 of the impugned judgment, as follows: -
"4.5. Service of substitutes will count for pensionary benefits from the date of completion of four months (3 months in the case of teachers) continuous service provided it is followed by absorption in regular Group 'C' (Class III)/Group 'D' (Class IV) service without break."
The husband of the applicant was a substitute employee and as per the rules prevalent at the point in time, would have been entitled for pensionary benefits provided he had been absorbed in Group 'C' (Class III) / Group 'D' (Class IV) service without break, which was not the case of the husband of the applicant.
9. The applicant in the present application is placing reliance on an Office Order dated 29.07.1972 (Annexure MA/2), which is a seniority list of screened casual labour and substitutes and she is claiming parity stating that while her husband figures at Sl. No. 1 and one Shri Tribhuwan Nath figures at Sl. No. 10 but he was getting monthly pension on his superannuation in the year 2000, this cannot help the case of the applicant as it was only a seniority list of 8 MA No. 307/2022 in TA No. 1/2019 screened casual labour / substitutes drawn way back in 1972 and the husband of the applicant died in 1972 itself. Comparison with other employees in that list who had superannuated in the year 2000 i.e. almost rendering three decades of service after the death of husband of the applicant cannot be drawn on the grounds of parity. Learned counsel for the applicant has also placed reliance on Rule 18 (3) of Railway Services (Pension) Rules, 1993. These rules are of 1993 whereas the husband of the applicant died in 1972. The original TA which the applicant is seeking to be reviewed was also dismissed observing as under: -
"8. xxxxx We also do not find any merit in the claim for compassionate appointment made 4 decades after the death of an employee; and in the claim for family pension which is not supported by any evidence. No costs."
The documents relied upon by the applicant in the present M.A. does not qualify to be 'discovery of new and important matters or evidence'.
10. We also agree with the contention of the respondents that as mandated by Rule 17 (5) of the Central Administrative Tribunal (Procedure) Rules, 1987, the applicant failed to file any duly sworn affidavit as prescribed under the above Rules indicating therein the source of knowledge, personal 9 MA No. 307/2022 in TA No. 1/2019 or otherwise, which renders this application liable to be dismissed. Besides, we do not find any infirmity in the order dated 13.05.2022 passed by this Tribunal.
11. As to the endeavour of the applicant invoking Rule 24 of the Central Administrative Tribunal (Procedure) Rules, 1987, relevant to understand this provision in the light of K.K. Velusamy vs. N. Palanisamy, reported in (2011) 11 SCC 275, wherein the Hon'ble Apex Court has held that:
"12................................
(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is 'right' and undo what is 'wrong', that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, Section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances.
(c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.
10MA No. 307/2022 in TA No. 1/2019
(d) and (e) xxxxxx
(f) The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court."
12. The Hon'ble High Court of Judicature at Patna in the case of The Union of India & Ors. vs. Smt. Barafi Devi & Ors. (Civil Writ Jurisdiction Case No. 18237 of 2016) vide its order dated 24.01.2023, has observed that Rule 24 of the Central Administrative Tribunal (Procedure) Rules, 1987 is similar to the provisions contained under Section 151 CPC.
13. In the light of above, the contention of the learned counsel for the applicant that this Tribunal has unfettered powers bestowed by Rule 24 of the Central Administrative Tribunal (Procedure) Rules, 1987 to sit as appellate court in review or allow the withdrawal of the main application, which has already been adjudicated upon, with liberty to the applicant to file fresh application/OA, is simply misconceived. The applicant has made a failed effort to avoid res-judicata by seeking liberty from this Tribunal to file fresh application by withdrawing original T.A., which has 11 MA No. 307/2022 in TA No. 1/2019 already been adjudicated upon after considering all the grounds as well as merits.
14. In view of the observations made above, the present Misc. Application deserves to be dismissed and, accordingly, the same is hereby dismissed. No costs.
(LOK RANJAN) (RANJANA SHAHI) ADMINISTRATIVE MEMBER JUDICIAL MEMBER +/nlk/