Orissa High Court
Central Reserve Police Force And Others vs Upendra Panda on 10 November, 2017
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
RVWPET NO. 268 OF 2016
WITH
MISC CASE NO. 282 OF 2016
In the matter of an application under Order XLVII, Rule 1 of the
Code of Civil Procedure for review of order dated 04.03.2016
passed in W.P.(C) No.1566 of 2016 and in the matter of an
application under Section 5 of the Limitation Act.
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Central Reserve Police Force
AFR and others ......... Petitioners
Versus
Upendra Panda ......... Opp.Party
For petitioners : Mr. Bimbisar Das,
Central Government Counsel.
For opp.party : M/s. N.R. Routray, Smt.
J. Pradhan, T.K. Choudhury,
S.K. Mohanty and P.R.J. Dash,
Advocates
PRESENT:
THE HON'BLE DR. JUSTICE B.R.SARANGI
DECIDED ON :: 10.11.2017
DR. B.R. SARANGI, J. The opposite party-writ petitioner, who was
working as Assistant Sub-Inspector in 12th Battalion, CRPF,
Sambalpur, was subjected to disciplinary proceeding. He
2
requested the inquiry officer to allow him to engage Sri Ganeswar
Padhi, a retired Head Post Master to act as a Defence Assistant.
Such request was rejected by order dated 23.12.2015 on the
ground that the Defence Assistant, sought to be engaged, was not
from the Unit/Force as required under Circular Order No.
05/2011. The opposite party then filed W.P.(C) No. 1566 of 2016
seeking to quash the order dated 23.12.2015 refusing to engage
Defence Assistant and participate in the inquiry, the order dated
26.12.2015directing to proceed with the proceedings on the basis of the available documents and calling for the witnesses to depose their statements to complete departmental enquiry procedure, and the order dated 20.01.2016 directing the opposite party-writ petitioner to appear before the departmental inquiry and proceed with the hearing by deposing the statement of the witnesses concerned to enable for completion of the departmental enquiry proceedings.
2. This Court by order dated 04.03.2016, relying upon the judgment dated 03.03.2009 rendered in W.P.(C) No. 2772 of 2009 (Sohar Ranjan Pattnaik v. Union of India and others), as agreed to by the learned Central Government Counsel that the claim made by the writ petitioner was squarely covered by the said 3 judgment, disposed of the writ application by quashing the orders issued by the authority on 23.12.2015, 26.12.2015 and 20.01.2016 in Annexures - 4, 5 and 8 respectively allowing the writ petitioner to engage Defence Assistant to conduct his case and further to continue the departmental proceedings afresh from the stage of preliminary enquiry. Such order dated 04.03.2016 passed in W.P.(C) No. 1566 of 2016 has been sought to be reviewed by means of this application, which has been filed after lapse of 199 days excluding the limitation period of 30 days. Consequentially, Misc. Case No. 282 of 2016 has been filed for condonation of delay in filing the review petition under Section 5 of the Limitation Act. The reasons for delay in approaching this Court have been mentioned in paragraph-4 of the said misc. case which read thus:
"That after disposal of the writ petition, the copy of the order was forwarded to the DIG (Law) Directorate vide letter dated 06.04.2016. Thereafter, the legal opinion and certain clarifications as required by the Ministry and Law & Justice vide Signal No.J.II-226/16-LWP dated 08.06.2016 were submitted Signal dated 11.07.2016 and 19.07.2016 for further instruction from the Law Directorate. The Law Directorate vide Signal No. J.II.226/2016-LWP-9 dated 19.08.2016 intimated the DIG of Police, CRPF, Odisha Sector that the Ministry of Home Affairs & Ministry of Law and Justice have advised to file a Review Application with delay condonation petition, if required. After receipt of the said information, the DIG of Police, CRPF, Odisha Sector intimated the learned Assistant Solicitor General of India about the opinion of the Ministry to file a Review Petition vide their letter dated 4 23.08.2016. After receipt of the aforesaid letter, the Asst. Solicitor General wrote to the DIG of Police, CRPF asking him to contact the present Central Govt. Counsel for filing of the necessary Review Petition and the Dy. Commandant (Law) on behalf of the IGP, Odisha Sector, CRPF vide dated 26.09.2016 requested the present Central Govt.
Counsel to prepare the Review Application. As such the review petition is filed with a delay of 182 days."
3. On perusal of the application for condonation of delay, it reveals that the reasons have been assigned as bureaucratic movement of the file and as such each day's delay has not been explained as required under law. While construing Section 5 of the Limitation Act, it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for filing of review gives rise to a right in favour of the petitioners which is binding between the parties. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown, discretion is given to the Court to condone delay and proceed with the matter. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice.
4. The apex Court has considered the application for condonation of delay and laid down the law in Union of India v. Nripen Sarma, AIR 2011 SC 1237; Amalendu Kumar Bera v. 5 State of West Bengal, 2013 (4) SCC 52; and Officer of the Chief Post Master General v. Living Media India Ltd., 2012 AIR SCW 1812. Relying upon such judgments, a Division Bench of this High Court (of which this Court is a member) in Writ Appeal No. 171 of 2017 (Union of India v. Kahnei Charan Biswal) refused to condone delay of 637 days in filing the appeal.
5. In State of Orissa v. Bishnupriya Routray, 2014 (II) ILR-CUT-847, this Court also refused to condone the delay of 706 days in preferring the appeal. Against the said judgment though SLP was filed, the same was dismissed by the apex Court because of non-furnishing the cause to condone the delay. In the case in hand, delay of 199 days has been caused only for bureaucratic movement of the file and as such each day's delay has not been explained as required under law. Therefore, this Court is not inclined to condone the delay.
6. Apart from the condonation of delay, on perusal of the order dated 04.03.2016 passed in W.P.(C) No. 1566 of 2016, it is seen that the said order has been passed after hearing the Central Government Counsel and he had categorically agreed that the case of the opposite party-writ petitioner was squarely covered by the judgment of this Court rendered in W.P.(C) No. 2772 of 2009 6 (Sohar Ranjan Pattnaik v. Union of India) disposed of on 03.03.2009. Since the review petitioners, as opposite parties in the writ petition, were represented by learned Central Government Counsel and on his concession the matter was disposed of by the impugned order, in the considered view of this Court, they cannot turn around and seek review of the same.
7. It is well settled principle of law laid down by the apex Court that review cannot be sought as a matter of course. It can be made if it satisfies the scope and ambit of Order 47 Rule 1 of CPC, though the same is not strictly applicable to the writ proceedings but its principle applies. Such question had come up for consideration in RVWPET No. 275 of 2011 (Suresh Kumar Agarwal v. Bimala Bhue and others) disposed of on 08.11.2017, wherein a Division Bench of this High Court (of which this Court is a member) has elaborately discussed the scope of review, which is very limited in nature. As the instant review application filed by the petitioners also does not come within the ambit and scope of the Order 47 Rule 1 CPC, this Court is also not inclined to review the order so passed on 04.03.2016.
8. In addition to what have been stated above, it is needless to say that, for the first time, a new plea has been taken 7 in the application for review that in view of the Circular Order no. 05/2011 the benefit is not admissible to the opposite party. That was never brought to the notice of the Court by the learned Central Government Counsel, who was appearing for the opposite parties in the writ petition (who are petitioners in review petition). Therefore, such a new ground, as taken in the review application, cannot be the basis for review of the order dated 04.03.2016, which was passed with the agreement of the parties in view of the ratio decided by this Court in Sohar Ranajn Pattnaik (supra).
9. For all the above reasons, this Court does not find any merits, either in the application for condonation of delay, or in the application for review. Accordingly, the same are hereby dismissed. However, there shall be no order as to cost.
Sd/-
DR. B.R.SARANGI, JUDGE Orissa High Court, Cuttack The 10th November, 2017, GDS/Ajaya True Copy Sr. Steno