Central Administrative Tribunal - Delhi
Union Of India Through The General ... vs Shri Radhey Shyam on 29 October, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI RA No.68 of 2013 IN OA No.1097 of 1993 Orders reserved on :8.10.2013 Orders pronounced on :29.10.2013 HONBLE SHRI G. GEORGE PARACKEN, MEMBER (J) HONBLE SHRI SHEKHAR AGARWAL, MEMBER (A) 1. Union of India through the General Manager, North Western Railway, Jaipur. 2. The Divisional Railway Manager, North Western Railway, Jaipur. 3. The Assistant Mechanical Engineer (Loco) North Western Railway, Jaipur. (Review Applicants (respondents in OA) (By Advocate : Shri R.L. Dhawan) versus Shri Radhey Shyam s/o Shri Ram Lal, R/o Ashok Kumar Ka Makan, Mangal Puri Labour Colony, New Delhi. .Review Respondents (Applicant in OA) (By Advocate : Shri R.K. Shukla) O R D E R SHRI SHEKHAR AGARWAL, MEMBER (A):
This Review Application has been filed by the respondents in the OA for review of our Order dated 5.2.2013 passed in OA No.1097/1993. The operative part of the said order reads as follows:-
24. In view of the above discussion of law and fact, the impugned order of removal dated 06.01.1992 read with Appellate order dated 18.06.1992 are hereby quashed and set aside. Consequently, the order of the reviewing/revisionary authority dated 15.07.1992 passed by the DRM, Jaipur is also held to be illegal and null and void. The respondents are directed to reinstate the applicant as a temporary Railway servant from the date of his illegal removal, i.e., 06.01.1992 with all consequential benefits with continuity of service etc. However, in the peculiarity of the facts and circumstances of the case we direct the respondents to pay only 50% of the total back wages which he would have been entitled to, had he not been illegally removed w.e.f. 06.01.1992 till the date of payment. Respondents are also directed to take steps to consider and regularize the temporary services of the applicant from the date when a similarly situated junior of the applicant was also considered and regularized. Respondents are further directed to do the needful within a period of 03 months from the date of receipt of a certified copy of this order. The OA thus stands allowed in terms of the above directions. In the facts and circumstances of the case, there shall be no order as to costs.
2. The Review Application has been filed mainly on the following grounds.
(i) There was an error of fact apparent on the face of records when this Tribunal have in paragraph 17 of the said Order held that the OA applicant was not at all guilty of producing a bogus casual labour card and that the Inquiry Officer had exonerated him of the only charge leveled against him in the chargesheet. In fact, the OA - applicant had been charged with cheating the administration and claiming that he had worked with PWI Kanwat from 6.9.1980 to 18.4.1982. Thus, the charge against the OA applicant was not of producing the bogus casual labour card but of making a false claim.
(ii) There was an error apparent in the judgment when this Tribunal have held that the Disciplinary Authority had punished the OA applicant without supplying him a copy of the disagreement note. Actually, there was no disagreement note as the Disciplinary Authority had punished the OA applicant after accepting the findings of the Inquiry Officer. Moreover, in the OA, the OA applicant had never taken this ground that he had been punished without supplying him a copy of the disagreement note. Since no such ground had been taken in the OA, the Tribunal could not have so held. Relying on the judgment of the Honble Supreme Court in the case of State of Jammu & Kashmir vs. Ajay Dogra (SLJ 2011 92) SC 255), the learned counsel for the review applicants stated that in this case the Apex Court had held that the Court could not consider a matter without pleadings and no relief can be given if not asked for.
(iii) There was an error in the judgment when this Tribunal held that the OA applicant appears to have worked for the period in question under PWI, Kanwat. The Inquiry Officer had in fact held that it was doubtful whether the OA applicant had worked during the aforesaid period with PWI Kanwat.
(iv) There was an error in the judgment when this Tribunal held that the inquiry officer had given perverse and contrary findings that the OA applicant was guilty of accepting wages from the review applicants without signatures and that this was not the charge in the chargesheet. In fact, the Inquiry Officer had given a specific finding that it was doubtful whether the OA applicant worked with PWI Kanwat.
(v) The Honble Delhi High Court have held in the case of Automobile Authority of India (Upper India) vs. Presiding Officer, 2006 VI AD (Delhi) 180, that burden is on workman to prove his employment by cogent and reliable evidence. In the instance case, after Inquiry Officers findings, it was the OA- applicants duty to substantiate his claim by producing reliable and cogent evidence. On the contrary, this Tribunal have held in paragraph 22 of the judgment that the review applicants were precluded from contending that the OA - applicant did not work with them during the relevant period.
(vi) The Tribunal have directed the review applicants to pay 50% back wages for the intervening period. This is an error of law apparent on the face of record because in the case of UOI vs. K.V. Jankiraman, (1993 SCC (L&S) 387), the Honble Supreme Court have laid down that the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period. In this case, the OA was first dismissed on 23.9.1998. Thereafter, it was restored 11 years later on a Misc. Application No.1418/2009. By this order of the Tribunal, great loss will be caused to the State exchequer.
(vii) There was an error of law in the judgment because the Tribunal have given directions for re-instatement/regularization of the OA applicant. Since the removal order has been quashed on technical grounds, it should have been left to the disciplinary authority to decide whether further inquiry was necessary or not.
3. The OA applicant has not filed any reply to the Review Application. However, counsel for the OA applicant was present during the arguments and he vehemently opposed the Review Application.
4. We have heard both sides and have perused the material on record.
5. In our opinion, except for ground (i), all other grounds taken by the Review Applicants are not maintainable in review. Thus, ground (ii) taken by the Review Applicants is that this Tribunal had erred in holding that a disagreement note should have been given to the applicant and prescribed procedure under the rules should have been followed thereafter because the Disciplinary Authority had actually agreed with the findings recorded by the Inquiry Officer and, therefore, there was no need for disagreement note. However, we find from the facts of the case that while the charge found to be proved against the OA applicant by the Inquiry Officer was that the applicant was guilty of taking payment against his work without putting signature on record, the Disciplinary Authority had found the charge of securing appointment by furnishing false particulars against the OA applicant to have been proved. Clearly this was not borne out by the Inquiry Report and hence, if the Disciplinary Authority wanted to proceed with this finding, it was necessary for him to supply a disagreement note to the OA applicant. Even the Honble Delhi High Court in their judgment in Writ Petition (Civil) No.3511/2012 dated 8.11.2012 have observed that the Tribunal need to consider whether the review applicants have followed the prescribed procedure when the Disciplinary Authority disagreed with the findings of the Inquiry Officer or not. Thus, in this regard, we do not find any error in the Order of the Tribunal.
6. Ground No.(iii) taken by the review applicants is that this Tribunal had wrongly held that the OA applicant appears to have worked for the period in question in PWI Kanwat whereas the Inquiry Officer had in fact found that this was doubtful. We notice from the inquiry report that the Inquiry Officer had stated in his report that it appears that Shri Radhey Shyam S/o Shri Ram Lal had worked with PWI Kanwat. But his record was destroyed/tampered with preplan as well as unlawful act or without name, work was taken from him. The reality of the facts as well as proper authentication can be ascertained from signature of the concerned person put on the card. I would, therefore, like to request that proper arrangement he made to this verification. Thus, the finding of the Tribunal does not appear to be erroneous on the face of record.
7. The review applicants have also taken ground (iv) that the Tribunal have erred in saying that the OA applicant was guilty of accepting wages from the review applicants without signatures and this was not the charge in the chargesheet. In our opinion, this ground of the review applicants is factually incorrect. The charge in the chargesheet was that the OA applicant had secured appointment by furnishing false particulars. The charge found to have been proved against him by the Inquiry Officer was that he was guilty of taking payment against work without putting his signature on record. Thus, the finding of the Tribunal is factually correct.
8. The ground nos.(v), (vi) & (vi), in our opinion, are not based on error apparent on the face of record. In fact, the review applicants are questioning the conclusions arrived at by this Tribunal in the Order. If we agree to their prayer, we would be going into the merits of the case again and re-writing another judgment of the same case. By doing so, we would be acting as our own appellate authority, which is not permissible in review. In the case of Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma, [AIR 1979 SC 1047], the Honble Supreme Court has observed as follows:-
"It is true as observed by this Court in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909, there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which is inherent in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all matters or errors committed by the Subordinate Court."
Again in the case of Ajit Kumar Rath vs. State of Orissa and others, 1999 (9) SCC 596, the Honble Supreme Court has observed as follows:-
"The provisions extracted above indicate that the power of review available to the Tribunal is the same as has been given to a court under Section 114 read with Order 47 CPC. The power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression "any other sufficient reason" used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the rule.
Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of the liberty given to the Tribunal under the Act to review its judgment."
[Emphasis added] In the case of Gopal Singh vs. State Cadre Forest Officers Assn. and others, (2007 (9) SCC 369), the Honble Supreme Court observed as follows:-
"The learned counsel for the State also pointed out that there was no necessity whatsoever on the part of the Tribunal to review its own judgment. Even after the microscopic examination of the judgment of the Tribunal we could not find a single reason in the whole judgment as to how the review was justified and for what reasons. No apparent error on the face of the record was pointed, nor was it discussed. Thereby the Tribunal sat as an appellate authority over its own judgment. This was completely impermissible and we agree with the High Court (Justice Sinha) that the Tribunal has traveled out of its jurisdiction to write a second order in the name of reviewing its own judgment. In fact the learned counsel for the appellant did not address us on this very vital aspect."
Thus, on the basis of the above citations, we come to the conclusion that it was not open to the review applicants to question the merits of the decision taken by this Tribunal. In fact, they could have only pointed out any error apparent on the face of record, which has not been done in any of these grounds.
9. As far as ground (i) is concerned, we find from paragraph 17 of the said Order that this Tribunal has held as follows:-
17. Next the Enquiry Officer says that alternatively the work from the applicant was taken in somebody elses name (Benami). In view of these highly revealing established facts the Enquiry Officer came to the conclusion that the applicant was not at all guilty of producing a bogus casual labourer card. Thus, the applicant was exonerated by the Enquiry Officer for the only charge levelled against him in the charge-sheet in question.
10. From the Original Application file, we find that the charge against the OA applicant was as follows:-
CHARGE The allegations of cheating with the administration is leveled against Sri Radhey Shyam s/o Shri Ram Lal (Substitute) Temporary status Loco Jaipur.
PARTICULAR OF THE CHARGES The charge of cheating with the administration os leveled on Shri Radhey Shyam S/o Sh. Ram Lal, Substitute (Ty Status) Loco Jaipur.
He was recruited, on the basis of earlier particulars, in respect of working along with other workmen with PWI Kanwat that he worked with him before 14.7.81.
He had produced casual labour card in respect of support of working before 14.7.81 that he worked from 6.9.80 to 18.4.82 on the remains date.
On the complaint of recognized union, investigation was made by this office and it was found that given particulars of working is not correct. Hence the substitute got employment by way cheating with administration producing wrong particulars.
By way of aforesaid act you failed to maintain integrity and such work which is unpleasant of Railway Employee.
Hence, you had violated rules 3 (I) (III) of Railway Servant Conduct rules.
11. Thus clearly the charge against the OA applicant was not of producing a bogus casual labour card. Therefore, this factual error has crept into the Order of this Tribunal. However, in our opinion, the final findings of the Tribunal are not based entirely on this observation and other aspects of the charge against the OA applicant have been gone into. This error has in our opinion not made any difference to the final outcome of the OA. We, therefore, do not see this as a sufficient ground for accepting the review.
12. Thus, this Review Application is devoid of merit and is accordingly dismissed. No costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN)
MEMBER (A) MEMBER (J)
/ravi/