Central Administrative Tribunal - Delhi
Union Of India Through vs Vineet Ohri on 24 December, 2008
Central Administrative Tribunal Principal Bench RA No.124/2008 In OA No.1025/2007 New Delhi this the 24th day of December 2008. Honble Mr. Shanker Raju, Member (J) Honble Mrs. (Dr.) Veena Chhotray, Member (A) 1. Union of India through the Secretary, Ministry of Finance, Department of Revenue, North Block, New Delhi-110001. 2. Chairman and Member (Vig.), Central Board of Excise and Customs, Ministry of Finance, Department of Revenue, North Block, New Delhi-110001. -Review Applicants/ Original respondents. (By Advocate Shri R.V. Sinha) -Versus- Vineet Ohri, R/o D-1033, New Friends Colony, New Delhi. -Respondent in RA/ Original Applicant (By Advocate Shri A.K. Behera with Shri P.K. Singh, Advocate) O R D E R Mr. Shanker Raju, Member (J):
An order passed on 4.12.2007 in OA-1025/2007 on the basis that no pseudonymous and anonymous complaint could result in disciplinary proceedings, the memorandum issued to applicant for a major penalty was set aside.
2. Respondents preferred Writ Petition (Civil) No.5496/2008 before the High Court of Delhi. By an order passed on 31.7.2008 Writ Petition was dismissed, as withdrawn, with liberty to the petitioners (review applicants herein) to file a review application. It was also directed that the review should not to be dismissed on the ground of delay by the Tribunal.
3. Learned counsel of review applicants in RA contends that CVCs instructions dated 29.6.1999 and 31.1.2002 have been considered but the latest instructions of 11.10.2002, which do not bar, in certain cases, holding of disciplinary proceedings on anonymous complaint, was taken into consideration, as there has been due diligence on the part of the respondents not to have brought to the notice of the Tribunal the circular of October 2002 by the CVC, there exists a factual error and a mistake in fact.
4. Learned counsel would also state that mistake in law whereby the judgments cited by the learned counsel of the respondents/review applicants were not considered also constitutes a valid ground for review.
5. Learned counsel while referring to paragraph-17 of the order passed in OA, states that Annexure A-27 to the OA has only sought an explanation from the applicant, which was forwarded, seeking his version and after that on CVCs advice the competent disciplinary authority ordered an enquiry, as such there is erroneousity in fact and an error apparent on the face of the record.
6. Learned counsel would further contend, relying upon the decision of the Apex Court in Surjit Singh v. Union of India, 1997 (10) SCC 592, that in the matter of review if a patent error is brought to the notice of the Tribunal, it is duty bound to correct if with grace.
7. Learned counsel would also contend that the issue of pseudonymous complaint was only a passing reference in the OA of applicant. It is also stated that the payments were made by the applicant only after the investigation was started and the instructions of Customs and Central Excise dated 18.1.2007 have not considered the instructions issued by the CVC in October 2002.
8. Whereas the learned counsel of respondent in R.A./original applicant states that circular of Customs and Central Excise dated 18.1.2006 was very specific and overrides any general instructions. Moreover, the CVC circular of October 2002, despite within the knowledge of the review applicants even after due diligence could not be brought to the notice of the Tribunal and for which there is not even a whisper or justification in the RA. Accordingly, it is stated that an attempt has been made by the review applicants/respondents in the OA to re-agitate the issue, which they have failed during the course of the arguments in the OA. Accordingly, learned counsel of the respondent in RA prays for dismissal of the RA.
9. On careful consideration of the rival contentions of the parties, in the context of power of review vested in the Tribunal under Section 22 (3)(f) of the Administrative Tribunals Act, 1985, the following principles have been issued, for entertaining the review by the Apex Court in State of West Bengal v. Kamal Sengupta, 2008 (9) SCALE 504:
28. The principles which can be culled out from the above noted judgments are :
(i) The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a Civil Court under Section 114 read with Order 47 Rule 1 of CPC.
(ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise.
(iii) The expression "any other sufficient reason" appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds.
(iv) An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(f).
(v) An erroneous order/decision cannot be corrected in the guise of exercise of power of review.
(vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a coordinate or larger bench of the Tribunal or of a superior Court.
(vii) While considering an application for review, the Tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.
(viii) Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court/Tribunal earlier.
10. Applying the aforesaid to the conspectus of the present case for showing an error apparent on the face of record a long drawn process has been adopted by the respondents, the error was not self evident and was made to be discovered allegedly, which is not a ground of review the order.
11. As regards consideration of CVC instructions of October 2002, it is a mere discovery but the parties seeking review has not shown that this piece of evidence was not within their knowledge and even after exercise of due diligence it could not be brought to the notice of the Tribunal. Moreover, the Tribunal has taken note of it while stressing upon a specific circular of Customs and Central Excise issued on 18.1.2006, where all the instructions of CVC were taken into consideration and thereafter a decision has been arrived at to quash the disciplinary proceedings.
12. As none of the grounds raised are apt in law, as declared by the Apex Court in Kamal Sengupta (supra), an attempt has been made by the learned counsel for the review applicants to re-agitate the matter, which is not permissible in review. Erroneousity in law is subject to judicial proceedings before the higher forum.
13. Moreover, the High Court of Delhi while giving liberty to the review applicants to file review only directed us not to dismiss it on the ground of delay, as the merits of the RA are considered, the same is a valid compliance of the direction of the High Court.
14. In the result, for the foregoing reasons, RA is dismissed. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.