Central Administrative Tribunal - Delhi
Sh. Rajiv Kumar Virmani vs Union Of India Through on 27 April, 2015
Central Administrative Tribunal Principal Bench, New Delhi. RA-89/2015 in OA-2256/2013 New Delhi this the 27th day of April, 2015. Honble Mr. Shekhar Agarwal, Member (A) Honble Dr. Brahm Avtar Agrawal, Member (J) Sh. Rajiv Kumar Virmani, Office Superintendent in Office of CIT-IV, New Delhi R/o Gali No.1, New Ashok Nagar, Sonepat, Haryana. .. Review Applicant Versus 1. Union of India through The Secretary, Deptt. of Revenue, Central Board of Direct Taxes, 460, Hotel Samrat, Chanakyapuri, New Delhi-1. 2. The Chief Commissioner of Income Tax, Central Revenue Building, Indraprastha Estate, New Delhi. .. Respondents ORDER (By Circulation)
Mr. Shekhar Agarwal, Member (A) This Review Application has been filed for review of our order dated 19.09.2014 in OA-2256/2013, the operative part of which reads as follows:-
10. We, therefore, partly allow this OA and direct that only the following remarks of the Reviewing Officer from the APAR of 1.4.2009 to 31.3.2010 of the applicant be expunged:-
The reporting officer himself used to tell me when asked for reasons in delay and incorrectness of reports such as dossier/audit that the staff dealing with it is not upto mark.
11. Rest of the remarks will remain as they are. We direct the respondents to carry out the above expunction within a period of eight weeks of receipt of a certified copy of this order. There shall be no order as to costs.
2. In his review application, the review applicant has stated that the remarks in his APAR do not per se establish that he had applied pressure in service matters. The remarks merely state that the applicant was not averse to doing so. The respondents have not brought out any material on record to support these remarks. After giving dictionary meaning of the word pressure the applicant has stated that the respondents miserably failed to prove that pressure was exerted by him for grant of earned leave. As per their own case it was only Sh. Bisht, Joint Secretary, ITEF who had been repeatedly requesting the Reviewing Authority for grant of earned leave to him. The applicant has contended that ITEF is an association of the non-gazetted staff members, which is engaged, inter alia, in attempting redressal of scores of minor individual grievances of the non-gazetted employees through peacefully and politely taking up their cases with appropriate authorities. CCS(Conduct) Rules do not prohibit invoking help of staff associations by employees in pursuit of redressal of their individual problems. The respondents have wrongly treated the request made by ITEF as pressure and this has formed the basis of the adverse remarks. Further, the applicant has stated that ITEF cannot be termed as political or outside. Thus, there was hardly any justification for the remarks recorded in the APAR. Moreover, no memo or show cause notice was issued to the applicant in this connection before recording such remarks. As such, they are not sustainable. Further, the applicant has stated that the adverse remarks in the APAR is a very serious matter having prejudicial bearing upon the career advancements and prospects of a government servant. As such, they deserve to be expunged. The respondents have made a big issue of the applicant applying for earned leave in the peak month of March completely forgetting that he was not engaged in any assessment work. His job was mainly preparation of statements. On the basis of these arguments, the applicant has prayed that his review application be allowed.
3. We have considered the submissions of the applicant. A mere reading of the same makes it abundantly clear that the review applicant has not pointed out any error in the judgment apparent on the face of the record. He is questioning our finding on the issue of retaining the adverse remarks pertaining to exerting pressure for sanction of earned leave and is trying to re-argue the matter in the garb of review application. This is obviously beyond the scope of a review application. If the applicant is aggrieved by our findings, appropriate course of action for him would be to challenge the same in higher judicial forum. If we were to accept his contention, we would be rehearing the case and sitting in appeal over our own judgment, which is not permissible. In this regard, we place reliance on the judgment of Honble Supreme Court in the case of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma, (1979) 4 SCC 389 in which the Apex Court referred to an earlier decision in the case of Shivdeo singh Vs. State of Punjab, AIR 1963 SC 1909 and observed as under:-
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. 3.1 Similarly in the case of Ajit Kumar Rath Vs. State of Orissa and Others, AIR 2000 SC 85 the Apex Court reiterated that power of review vested in the Tribunal is similar to the one conferred upon a Civil Court and held:-
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 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 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] 3.2 In the case of Gopal Singh Vs. State Cadre Forest Officers Assn. and Others [2007 (9) SCC 369], the Apex Court held that after rejecting the original application filed by the appellant, there was no justification for the Tribunal to review its order and allow the revision of the appellant. Some of the observations made in that judgment are extracted below:-
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.
4. In view of the above, we do not find any merit in this Review Application and the same is dismissed in Circulation. No costs.
(Dr. Brahm Avtar Agrawal) (Shekhar Agarwal)
Member (J) Member (A)
/Vinita/