Central Administrative Tribunal - Delhi
Shri Gulshan Kumar Batra vs The Hon Ble Lt. Governor Of Delhi on 12 August, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI R.A. No. 48/2012 IN O.A. No.2522/2010 Reserved on:06.08.2013 Pronounced on:12:08:2013 HONBLE SHRI G. GEORGE PARACKEN, MEMBER (J) HONBLE SHRI SHEKHAR AGARWAL, MEMBER (A) Shri Gulshan Kumar Batra SREO (Retd.) R/o C-8/6, 2nd Floor, Mainwali Nagar, New Delhi-110087. ..Review Applicant By Advocate: Mrs. Meenu Mainee. Versus 1. The Honble Lt. Governor of Delhi Raj Niwas, Raj Niwas Road, Delhi-110054. 2. The Chief Secretary, Govt. of NCT of Delhi, Delhi Secretariat, I.P. Estate, New Delhi-110002. 3. Secretary, Labour & Employment, Govt. of NCT of Delhi, Delhi Secretariat, I.P. Estate, New Delhi-110002. Respondents By Advocate: Shri N.K. Singh for Mrs. Avnish Ahlawat. ORDER
By Shri G. George Paracken:
This Review Application has been filed by the Original Applicant in OA No. 2522/2010 which was disposed of vide order dated 04.01.2012. The operative part of the said order reads as under:
11. We have heard the learned counsel for the parties. No doubt, there is a delay of about 13 years in initiating the departmental proceedings against the applicant. The main ground taken by the applicant to challenge the Respondents action in initiating the departmental proceedings against him also of delay. Now the first question is whether the delay was unexplained or undue. The second question is with regard to the gravity of the alleged misconduct committed by the applicant. As regards the question of delay is concerned, of course, the Apex Court in Bani Singhs case (supra) has held that unexplained long delay is good and sufficient reason to set aside the memorandum of charge. However, the question is whether the delay was totally unexplained. Even though the alleged incident had taken place during the period from September 1996 to January 1998, it came into light only when the Sub Divisional Magistrate Najafgarh filed a complaint against the applicant to the SHO Najafgarh. Thereafter, an FIR No.145/06 under Section 420/468/471/34 IPC dated 17.2.2006 was registered against him. The criminal case filed against him subsequently is in progress. The department has, however, decided to hold an enquiry under the powers conferred upon it under the CCS (CCA) Rules, 1965 while the aforesaid criminal case is pending. It is seen that there was no deliberate attempt on the part of the respondents, not to take any action against the applicant against the alleged misconduct committed by him. It has been held clearly in the case of N.Radhakrishnas case (supra) that it is not possible to lay down any pre-determined principles applicable to all cases and all situations where there is delay in concluding the disciplinary proceedings. Again, in the case of P.V.Mahadevan, the Apex Court has allowed the petition on the ground that explanation offered by the respondents in initiating the departmental enquiry against the petitioner therein after a long delay was not at all convincing. But that is not the case in the present case. As regards the gravity of the case is concerned, in our considered view, it is quite serious. According to the statement of imputation, applicant has committed gross misconduct with the malafide intention as he ignored the fact that the application for mutation was filed by Sh. Surender Singh on behalf of Sh. Sunder Singh, but the fathers name and address of Surender Singh and his relationship with Sunder Singh was not mentioned. Applicant has also ignored the contents of the application as well as sale deed which mentioned that the suit land has been sold by Sh. Jasbir Singh through his attorney Sh. Rakesh Chopra. When it was clear from the record that Sh. Rakesh Chopra was himself the Bhoomidhar and any sale deed or application for mutation from a person stating Sh. Rakesh Chopra to be his attorney, was enough to raise the doubt about the legality of the transaction.
12. In the above facts and circumstances of the case, we would not like to interfere with the departmental proceedings initiated against the applicant, even though it was just few days before his retirement from service. Since the allegation against him was of grave nature, it is necessary that he has to come out clean in the departmental proceedings. Moreover, there is also a criminal case pending against him on the basis of the complaint made by the SDM on 16.2.2006. We, therefore, dismiss this OA. However, since the applicant has already retired from service, we direct the respondents to conclude the enquiry as early as possible so that the applicants claim for full pension as well as for release of the withheld post-retiral dues can be settled earlier. We also direct the applicant to give full cooperation in the enquiry proceedings being held against him so that the matter could be decided without any further delay. There shall be no order as to costs.
2. The Review Applicant has sought review of the aforesaid order on the following main grounds:
(A) In the Written Submissions, the Petitioner had fully explained with the help of Respondents documents themselves, that not only the cause of action had arisen in 1996, which was very much in the knowledge of the Respondents, but they did not take any action to initiate the disciplinary proceedings against the Petitioner till February 2010. The documents produced by the Petitioner with the written submissions is the Appellate Order in Appeal No.14/1997 which was preferred by Shri Rakesh Chopra, who was aggrieved by the mutation order which had been passed by the Petitioner in the year 1996. Shri Rakesh Chopra had challenged the order of mutation passed by the Petitioner by preferring an appeal which was ultimately allowed by the Appellate Authority vide order dated 31.3.1997 in which the Appellate Authority had passed the following order in the operative part of the judgment:-
The entire occurrence of events leading to serious misconduct on the part of different officials should be referred to appropriate administrative authority to initiate action as per CCS (CCA) Conduct Rules against them. From the aforesaid order of the Appellate Authority it is clear that amongst employees against whom the disciplinary action was directed to be taken by the Appellate Authority, the Petitioner was one of them but no action whatsoever had been taken and even the FIR was filed in the year 2006 i.e. after 9 years. The Petitioner had also filed a copy of the judgment of the Appellate Authority along with written submissions. Unfortunately, the written submissions along with judgment of the Appellate Authority have completely escaped the notice of this Honble Tribunal although as per directions of this Honble Tribunal, the Petitioner had drafted and presented the written submissions to the Court Master on 1.12.2011, after having served a copy of the same on the learned counsel of the Respondents, but the said submissions along with relevant documents which were filed within 2 days of the directions of this Honble Tribunal have not been taken into consideration and, therefore, the following observations of this Honble Tribunal at page 11 of the judgment, is erroneous:-
even though the alleged incident had taken place during the period from Sep 96-Jan 1998, it came into light only when the subject when the Sub-Divisional Magistrate Najafgarh filed the complaint against the Petitioner in Najafgarh. Thereafter, an FIR No.145/2006 u/s 420/468/471 IPC dated 17.2.2006 was registered against him. The aforesaid error/omission coupled with omission to take into consideration the written submissions filed on the directions of this Honble Tribunal bring the Review Petition within the ambit of the Order 47 Rules 1 of CPC.
(B). Another error which is apparent on the face of the record is that this Honble Tribunal in page 11 lines No.12 & 13 of the judgment, has been pleased to observe as under:-
It is seen that there was no deliberate attempt on the part of respondents not to take any action against the applicant against the alleged misconduct committed by him. The above observations are erroneous because, in accordance with law, the delay which is unexplained, is the culpable delay irrespective of the fact whether the delay is deliberate or otherwise. Generally speaking, the delay is normally on account of routine/carelessness on the part of officials but the law has not taken into consideration any deliberate delay while quashing the disciplinary proceedings on the basis of unexplained delay. In case of various Supreme Court judgments on this issue, the disciplinary proceedings have been quashed on the ground of unexplained delay.
Since the judgment rendered by this Honble Tribunal is treated to be law and will be referred/quoted in several similar cases in which disciplinary proceedings are challenged on the ground of unexplained delay, the word deliberate used in this judgment may cause prejudice to the Petitioners and will certainly culminate in injustice because delay whether deliberate or otherwise, is not the criteria. The criteria is unexplained delay. Even at the risk of repetition, the Petitioner, with respect, submits that the Honble Supreme Court has qualified the delay with the adjective of unexplained but there is nothing to distinguish the delay whether deliberate or otherwise. The aforesaid observation is erroneous and, therefore, it needs to be omitted in the judgment, whether it affects the ultimate decision of this Honble Tribunal in the O.A. or otherwise, is not relevant.
C. In the last paragraphs of the judgments, this, Honble Tribunal has been pleased to observe that:
In the above facts and circumstances of the case, we would not like to interfere with the departmental proceedings initiated against the Applicant even though it is just a few days before his retirement from service. In this regard, it is respectfully submitted that the impugned memorandum charge-sheet was served upon the Petitioner on the last day of his retirement and not just a few days, which has erroneously come on record. This is a factual error which will not affect the final decision but it is necessary to correct the same to straighten the records.
(D). That the Petitioner is fully aware that this Honble Tribunal has finally dismissed the OA on the ground of seriousness of the allegations, as also short delay taking into consideration the FIR having been filed in 2006 and the aforesaid errors are according to Petitioner, on the face of the record which may or may not ultimately affect the decision but even then it is necessary to rectify the errors in the judicial order passed by this Honble Tribunal.
3. We have heard the learned counsel for the parties and perused the record. After going through the RA, we find that out of the three grounds taken by the Applicant seeking review of this Tribunals order dated 16.10.2012, the first two are not tenable because they have been considered by this Tribunal in detail in para 11 of the afore-quoted order. Moreover, it has been clearly held in para 12 that there is also a criminal case pending against the Applicant on the basis of the complaint made by the SDM on 16.2.2006. Of course, the third ground that the observation of this Tribunal that the departmental proceedings against the Applicant were initiated just a few days before his retirement from service instead of last day of his retirement from service is wrong. But such an observation does not make material difference in adjudicating the OA.
4. The scope of Review Application is very limited. It shall be within the parameters of Order 47 Rule 1 CPC, 1908 which is as under:-
1. Application for review of judgment.- (1) Any person considering himself aggrieved,
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or (C) by a decision on a reference from a Court of Small Causes, and who, from 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 decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review..
5. In Parsion Devi and Others vs. Sumitri Devi and Others [1997 (8) SCC 715], the Apex Court has held as under:-
"Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47, Rule 1 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise"."
6. In Ajit Kumar Rath Vs. State of Orissa (1999 (9) SCC 596), 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 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.
7. In the present case, we do not find any such eventualities to review the aforesaid order dated 04.01.2012. In our considered opinion, the Review Applicant is only trying to reargue the matter which is not permissible under the Rules governing Review.
8. In view of the above position, we allow this Review Application to the limited extent of substituting the words just a few days occurring in the last paragraph of the order dated 04.01.2012 by the words last day of his retirement which does not require any rehearing of the OA. Accordingly, this Review Application is disposed of. There shall be no order as to costs.
(Shekhar Aggarwal) ( G. George Paracken ) Member (A) Member (J) Rakesh