Central Administrative Tribunal - Delhi
Dr. M.R.Diwan (Ifs (Retd.) Adv. vs Union Of India & Ors on 30 July, 2014
Central Administrative Tribunal Principal Bench New Delhi R.A.No.53/2014 in O.A.No.3660/2012 Order Reserved on: 18.07.2014 Order pronounced on 30.07.2014 Honble Shri V. Ajay Kumar, Member (J) Honble Shri V. N. Gaur, Member (A) Dr. M.R.Diwan (IFS (Retd.) Adv. Applicant (In person) Versus Union of India & Ors. .. Respondents (By Advocate: Shri R.K.Sharma) O R D E R By V. Ajay Kumar, Member (J):
The present RA has been filed by the applicant in OA, under Section 22(3)(f) of the Administrative Tribunals Act, 1985 read with Rule 17 of the Central Administrative Tribunal (Procedure) Rules, 1987 seeking review of the Judgement dated 31.10.2013, passed in OA No.3660/2012.
2. The Judgement in OA No.3660/2012 was delivered by a Coordinate Bench consisting of Honble Shri Justice Syed Rafat Alam, Chairman and Honble Dr. B.K.Sinha, Member (A). However, vide Order dated 06.05.2014 of the said Bench, this RA along with CP No.129/2014 was directed to be listed before another Bench in which both of them are not members. It is also brought to our notice that the Honble Chairman, passed orders on 09.05.2014, on administrative side, directing the Registry to list the matters before Court Hall No.4. Accordingly, both the CP and RA have been listed before this Bench. Vide Order dated 15.05.2014, in view of filing of the RA seeking review of the Order dated 31.10.2013 in OA No.3660/2012, the CP was closed as the same was also filed against the same order.
3. Though normally the Review Applications are heard by the same Bench which passed the Judgement, which is sought to be reviewed, but in view of the aforesaid circumstances, the RA has been taken up for hearing.
4. The applicant, who is a retired IFS Officer, having aggrieved by the Order dated 25.09.2012 of the respondents in awarding the punishment of forfeiture of full pension and entire gratuity on permanent basis upon him, filed OA No.3660/2012. The reliefs prayed in the said OA are as under:
a) Call for the entire records of the case;
b) Quash and set aside the office impugned charge Memo dated 15.11.1993 and impugned penalty order dated 25.09.2012 with all its consequences;
c) Declare that the action of the respondents in issuing the impugned charge memo and penalty order as illegal, arbitrary, malafide unjustified, without jurisdiction and untenable in law with all its consequences;
d) Direct the respondents to restore all the benefits to the applicant including the release of the Gratuity and Proper calculation of pension as stated in due & drawn statement (Annexure A-39 herein) after releasing the seniority above all those who were promoted to STS of IFS (On 26.7.1989 or 1.8.1978) after 1.3.1978 i.e. the date of promotion of the applicant and all due promotions upto the next higher grades i.e. S.G., CF, CCF, Add PCCF & PCCF w.e.f. 1.1.1982, 04.12.1985, 16.06.1992, 06.11.2002 & 4.2.2004 respectively as if no such aforementioned charge memo or penalty orders have ever been issued.
e) Allow costs of all the applications, present and all others relating to OR relying of the impugned charge memo dated 15.11.1993, since 10th Feb., 1992 i.e. the issuances of the order of suspension.
f) Direct the respondents to pay all the due amount along with interest @ 18% p.a. of salary dues, leave encashment, TTE bills, LTC, Medical reimbursement after releasing all due promotions w.e.f. the dates given to his junior officers (promoted to IFS from SFS to IFS on or after 1.3.1978 within a reasonable period as fixed by the Honble Tribunal.
g) Pass any other order or orders, which this Honble Tribunal may deem just & equitable in the facts and circumstances of the case to compensate the losses suffered not only by the applicant but also by his family members especially by his only daughter as stated in above paras.
5. This Tribunal, after hearing both sides, allowed the said OA by its Judgement dated 31.10.2013 and the operative para of the same, reads as under:
34. In totality of facts and circumstances of the case and in view of our above discussion, we allow the instant Original Application with the following directives:-
1. The impugned order dated 25.09.2012 is quashed and set aside being excessive and bad under law and the case is remanded to the disciplinary authority for taking a fresh decision on the quantum of punishment in the light of our discussion within.
2. The disciplinary authority is directed to complete the directions, as ordained above, within a period of two months from the date of receipt of a certified copy of this order.
3. There shall be no order as to costs.
6. The applicant in the OA, though the same was allowed in his favour as above, but having not satisfied with the same, filed the present RA. To a query from the Bench, the Review Applicant stated that Para 17 of the R.A. may be considered as the review grounds. The said para 17 reads as follows:
17. Keeping in view the submissions and judgments mentioned above and also going through the contents of the judgment dated 31.10.2013 given in OA No.3660 of 2012, he has found some glaring mistakes/errors of law and fact which are self evident on the face of the records, so thought if proper to bring to the kind knowledge/notice to this Honble Tribunal to provide justice to him by getting the review of the judgment dated 31.10.2013 and for that some of the glaring mistakes/errors are stated as below:-
A. Because the Honble Tribunal has committed a glaring mistake/error of law/fact both by not considering of judgment of the Honble Supreme Court dated 05.09.2013 given in the case of Union of India & ors versus B V Gopinathan & Ors., wherein it held:-
49. Although number of collateral issues had been raised by the learned counsel for the appellants as well the respondents, we deem it appropriate not to opine on the same in view of the conclusion that the charge sheet/charge memo having not been approved by the disciplinary authority was non est in the eye of law.
50. For the reasons stated above, we see no merit in the appeals filed by the Union of India. We may also notice here that CAT had granted liberty to the appellants to take appropriate action in accordance with law. We see no reasons to disturb the liberty so granted. The appeals are, therefore, dismissed. Further the Honble Tribunal has committed a glaring mistake/error of law by not considering of Judgement of the Honble Supreme Court dated 03.10.2013 given in the case of U.P.Power Corporation Ltd. and another versus Virendra Lal (Dead) through L.Rs, wherein it held:-
21 In the case at hand, there is no denial of the fact that the UPSEB has passed the order for deduction of 10% pension from the delinquent employee. Under the Regulations which we have reproduced hereinbefore there is a stipulation that an appeal or representation, as the case may be, from the order of the Chairman shall lie to the UPSEB. The Regulation clearly provides that in case of an Assistant Engineer the Chairman is the competent authority to pass the order of punishment and, therefore, by virtue of the order passed by the UPSEB remedy of appeal was denied to the delinquent employee. Under these circumstances, the view expressed by the High Court has to be regarded as flawless and, accordingly, we concur with the same. As in his case the order of punishment has been passes by the president and against his order there is no right of appeal. B. Because the Honble Tribunal has committed a glaring mistake / error of law / fact both by not considering of Judgment of the Honble High Court of Delhi of Union of India vs S.K. Srivastava WP(C) No.13223 of 2009 dated 18th Nov., 2009 & Union of India vs. B.V. Gopinath (W.P.(C) No.10452 of 2009 dated 28th July 2009 wherein it was held:-
The approval of the Disciplinary Authority is required to be taken before issuing a charge sheet to the Respondent. Further the Honble Tribunal has also committed a glaring mistake / error of law by not considering the Judgments of the Honble Tribunal as stated in para no.I.a.ii of O A No. 3660 of 2012 as following:-
S.K. Srivastava (O.A. No.1434 of 2008) dated 18.12.2008 B. V. Gopinath (O.A. No.800 of 2008) dated 05.02.2009 Keshavlal Trikamlal Maru (O.A. No.3271 of 2010) dated 29.08.11.
Shri Rajnish Kumar (O.A. No.2694 of 2009) dated 05.09.2011 S. Ramu & Others, (O.A. No.3732 of 2010), dated 26.08.2011.
Wherein it has concluded that issuance of the Memorandum of Charges without taking the prior approval of the Competent Disciplinary Authority has been held as illegal, nonest and without Jurisdiction thereby this Honble Tribunal Quashed and set aside the Charg Sheet/Memo issued without taking the PRIOR Approval from the Competent Disciplinary Authority. Further the Honble Tribunal also committed a glaring mistake / error of law / fact by not considering the contents of para no. 4,z..9 (O.A. No.3660 of 2012 at page no.27-28) clearly showing that the charge sheet/ charge memo dated 15.11.1993 issued to him was not having the prior approval of the competent disciplinary authority and is available at page no. 59 of the NOTE SHEET of the file from which charge sheet is issued, is reproduced here for ready reference as below:-
It is now submitted for orders, whether the approval of the Honble MEF should be taken since the Principal Bench, CAT has already granted a inter-locatory stay on the suspension order, claiming that the records did not show that the charge sheet was approved by the Minister. Further it was ascertained informally from the AVD section of DOPT that a draft charge sheet is always placed when approval of the Minister is taken for initiation of disciplinary proceedings against any All India Services officer. No such approval is on the file. However this is only an error and nor illegal, submitted for approval pl Sd/-..
(A.V. SASI KUMAR) Desk Officer (Vig.) 30.11.1994 The same very fact is also clearly available at para no.2 of order dated 30.11.1994 at page no.151 of Annexure A, 32 in the O A No.3660 of 2012, the same is reproduced as below for ready reference:-
The second feature is that the charge sheet furnished to the applicant was not approved by the minister-in charge More over the same very fact is also clearly available at page no. 6 as Annexure C. ii. of the Affidavit dated 18.07.2013 (external page no. 297) submitted as per directions of this Honble Tribunal.
C. Because the Honble Tribunal has committed a glaring mistake / error of law / fact both by not cons idering the Judgment of the Honble Supreme Court and Full Bench decision of Honble Tribunal at the admission, regarding the application of Resjudicata, that it is the preliminary objection and has to be raised at the admission and be decided, if the same is not allowed after admission then the same can not be allowed. The Honble Tribunal has committed a glaring mistake by not taking into consideration the Orders stated above in para no. 11 (Annexure P-4) and orders dated 02.11.2012 and 20.11.2012 whereby the Honble Tribunal issued directions to file the counter and rejoinder by rejecting the objection of resjudicata raised by the respondents counsel. And by applying resjudicata on 31.10.2013, the Honble Tribunal has committed a serious error of law of Doctrine of binding Precedent as upheld by HSC in case of K. Ajit Babu and Others v. Union of India and Others, (1997) 6 SCC 473. Constitution Bench judgment in Union of India v. Raghubir Singh and Others 1989 AIR 1933, 1989 SCC (2) 754 and may others.
D. Because the Honble Tribunal has committed a glaring mistake / error of law / fact both by not considering the Judgment of the Honble Supreme Court as stated below:-
K. Sivaramaiah vs Rukmani Ammal on 20 November, 2003 2004 (1) CTC 238, (2004) 1 MLJ 149 SC, 2003 (10) SCALE 18 held :-
5. . A judgment given in a suit which has been permitted to be withdrawn with the liberty of filing a fresh suit on the same cause of action cannot constitute res judicata in a subsequent suit filed pursuant to such permission of the Court.. The above principle is recently upheld in Erach Boman Khavar vs Tukaram Sridhar Bhat & Ors. on 12 December, 2013 in C A No. 11005 of 2013 (Arising out of SLP (Civil) No.25369 of 2010.
E. Because the Honble Tribunal has committed a glaring mistake / error of law / fact both by not considering the Judgment of the Honble Supreme Court as stated in para no. 1.D and 4.1.a of O.A. No.3660 of 2012 and tried to give opinion even on those charges for which no show cause was ever issued and representation sought and decided and also decision of this Honble Tribunal taken in the case of Dr. Laxman Singh Meena Vs. UOI in O.A. No. 1433 of 2010 decided on 6.1.2012 as:-
12. In the facts and circumstances as mentioned above, we will set aside the order dated 08.11.2006 passed by the disciplinary authority, as also the orders dated 09.04.2007 and 06.01.2009 passed in appeal and revision/review respectively. The disciplinary authority is directed to re-examine the issue only as regards the allegations contained in the memorandum dated 02.12.2005 (Annexure A-12), for which alone the applicant was asked to give his explanation F. Because the Honble Tribunal has committed a glaring mistake / error of law / fact both by not taking into consideration the provisions of rule no.8(3) of the AIS (D&A) Rules, 1969 wherein it is mandatory that Enquiry Officer SHALL be a SENIOR Officer to the Charged Officer.
G. Because the Honble Tribunal has committed a glaring mistake/error of law/fact both, while making the incomplete, incorrect, half true, misleading and wrong observation in para no.8.ii in the judgment dated 31.10.2013 as following:-
The impugned Memo of Charge dated 15.11.1993 had been issued without the prior approval of the Minister of Environment & Forests, Union of India on behalf of the President, which is clearly illegal and without jurisdiction. This ground is supported by:
a) SK Srivastava in OA No. 1434/2008 decided vide order dated 18.12.2008 upheld by the HHC in WP (C;13223/2009 UOI vs SK Srivastava;
b) B V Gopinath in OA No.800/2008 decided vide the order dated 5.2.2009 as upheld in UOI vs B V Gopinath, WP (C) No.10452/2009 decided on 2009;
c) Keshavlal Trikamal Maru in OA No. 3271/2010 decided vide order dated 29.8.2011;
d) Rajesh Kumar in OA No.2694/2010 decided vide order dated 5.9.2011;
e) S Ramu & Others in OA No. 3732/2010 decided vide order dated 26.8.2011;
While the correct and true grounds are reproduced below:-
a.i) The application is made against the illegal and without jurisdiction Issuance of the Memorandum of Charges dated 15.11.1993 without taking the prior approval of the Competent Disciplinary Authority (State Government) OR the Joint Cadre Authority (JCA) i.e. Respondent No.2 who was State Govt. for any Joint Cadre, as the applicant being a member of Indian Forest Services which is one of the Three All India Services.
a.ii) {PRESUMING Respondent no.1 i.e. President is the Competent Disciplinary Authority. Though it is Not True, even then this application is also made against the illegal and without jurisdiction issuance of the Memorandum of Charges dated 15.11.1993 `without taking the prior approval of the Competent Disciplinary Authority i.e. President of India (Minister of Env. & Forests), which was the Competent Disciplinary Authority, until there was a Union Territory (UT) Cadre upto 3.4.1989 i.e., the date from which a Joint Cadre Authority (JCA) for the Joint (AGMUT) Cadre was formed in the instant case} That issuance of the Memorandum of Charges without taking the prior approval of the Competent Disciplinary Authority has been held as illegal and without jurisdiction by this Honble Tribunal by Quashing & setting aside the Charge Sheet/Memo issued without taking the PRIOR Approval from the Competent Disciplinary Authority in the cases of S.K.Srivastava (O.A.No.1434 of 2008) dated 18.12.2008 B.V.Gopinath (O.A.No.800 of 2008) dated 05.02.2009.
K.T.Maru (O.A.No.3271 of 2010) dtd. 29.8.2011 Rajnish Kumar (O.A.No.2694/2009) dated 5.9.2011.
S Ramu & Ors. (O.A.No.3732/2010), dated 26.08.2011.
5.2 Because the action of the Respondent no.1 in issuing the impugned charge memo dated 15.11.1993 without the prior approval of the Env. & Forests Minister on behalf of the Honble President (Presuming that He is the Competent Disciplinary Authority after 3.4.1989 i.e. the date wef the Joint Cadre Authority for Joint AGMUY Cadre was Constituted) is clearly illegal and without jurisdiction, hence makes the impugned charge memo viod ab initio as held by the Honble Tribunal in the cases of;-
S.K.Srivastava (O.A.No.1434 of 2008) dated 18.12.2008 B.V.Gopinath (O.A.No.800 of 2008) dated 05.02.2009.
Keshavlal Trikamlal Maru (O.A.No.3271 of 2010) dtd 29.8.11.
Shri Rajnish Kumar (O.A.No.2694 of 2009) dated 05.09.2011, S. Ramu & Others, (O.A.No.3732 of 2010), dated 26.08.2011 The orders in the Case of S.K.Srivastava & B V Gopinath have been upheld by the Honble Delhi High Court vide order dated 18/11/2009 (Union of India vs. S.K.Srivastava (WP(C) No.13223/2009) and Union of India vs. B.V.Gopinath (W.P.(C) No.10452/09) decided on 28th July, 2009 by concluding, the approval of the Disciplinary Authority is required to be taken before issuing a charge sheet to the Respondent. 5.4. Because the action of the Respondents in issuing the impugned charge memo dated 15/11/1993 without the prior approval of the Competent Disciplinary Authority i.e. State Government (JCA for a joint Cadre) is clearly illegal and viod ab initio. The CAT Guwahati Bench reported as SLJ 2003(1)-CAT-Guwahati-76 held that the State Govt. OR the Joint Cadre Authority is the ONLY Disciplinary Authority and the Centre Govt., is the Appellate Authority. And also as the case is squarely covered by the judgements stated in para no.5,2 above.
5.9. Because, the issuance of the impugned charge memo is clearly without jurisdiction as the same is not issued with the prior approval of the Minister under whom was working the Respondent no.2 (Addl. Secy, (I/C) UTS Division, Ministry of Home Affairs, Central Secteriate, North Block, New Delhi i.e. the JCA for IFS Officers) who was the ONLY Competent Disciplinary Authority upto 25.4.1995 (Annexure A-24). The case is squarely covered by the judgments stated in para no.5.2 above, hence deserve to be quashed and set aside.
From the comparison of above it is crystal clear that Honble Tribunal had committed a very very grave mistake by arriving at the conclusion that the Ministry of Environment and Forest is the Competent Disciplinary Authority, while the same is not correct as after the formation of the Joint Cadre Authority (JCA) vide Notification dated 03.04.1989 (Annexure-A-24 at pages 121-123 of the OA No.3660 of 2012).
H. Because the Honble Tribunal has committed a glaring mistake error of law/fact both, while making the incomplete, incorrect, half true, misleading and wrong observation in para no.8.viii in the judgment dated 31.10.2013 as following:-
The memorandum of charge dated 15.11.1993 was issued by respondent no.2 i.e. Additional Secretary In-charge (UTS Division), Ministry of Home Affairs i.e. JCA for AGMUT Cadre, whereas it should have been issued with the prior approval of the Minister under whom the respondent no.2 was working While the correct and true ground is reproduced below:-
5.9. Because, the issuance of the impugned charge memo is clearly without jurisdiction as the same is not issued with the prior approval of the Minister under whom was working the Respondent no.2 (Addl. Secy, (I/C) UTS Division, Ministry of Home Affairs, Central Secteriate, North Block, New Delhi i.e. the JCA for IFS Officers) who was the ONLY Competent Disciplinary Authority upto 25.4.1995 (Annexure A-24). The case is squarely covered by the judgments stated in para no.5.2 above, hence deserve to be quashed and set aside. From the comparison of above stated TWO paras it is crystal clear that the Honble Tribunal has committed a glaring mistake/error by quoting was issued instead of was NOT issued hence changing the concept 180 degree and has arrived the exact contrary/opposite conclusion, hence needs the REVIEW for doing justice.
I. Because the Honble Tribunal has committed a glaring mistake/error of law/fact both, in para no.17 and 18 in the judgment dated 31.10.2013. by considering the judgment of M.Nagabhushana versus State of Karnataka & Others [AIR 2011(SC) 1113] and Bihar State Government Secondary School Teachers Association versus Bihar Education Service Association & Others [2012(11) Scale 291] while none of these was referred/relied neither by the applicant nor by any respondents. On the contrary the Honble Tribunal has not taken into consideration the judgements (Referred above in para no.16.II and in Affidavit dated 19.07.2013 as Annexure-j at page no.29) which were referred and relied by the applicant to refute the claim of the respondents of Resjudicata as these judgements are brought to the notice to the Honble Tribunal during argument at the time of admission and after that the Honble Tribunal was pleased to reject the claim of Resjudicata of the respondents and issued notice for filing counter and rejoinder vide order dated 22.03.2012 in O A No.925 of 2012 (Annexure P-4 (Colly.) herein, further again on 03.11.2012, 20.11.2012 directed the case for final hearing after rejecting the preliminary objection of Resjudicata of the respondents on 03.01.2013, 12.02.2013, 20.03.2013 and 06.05.2013.
J. Because the Honble Tribunal has committed a glaring mistake/error of law/fact both by assuming that the validity of the charge memo dated 15.11.1993 has been discussed and decided earlier, hence the principle of Res-judicata is applicable in O A No.3660 of 2012, insptie of the clear observation/admission of the HT in para no.4 of the judgment dated 31.10.2013 that the O A No.181 of 2002 was allowed ONLY on ONE point i.e. violation of PNJ and no other points/grounds were discussed and decided. The relevant extract of the same is reproduced below:-
4. .. The Tribunal relying upon the single ground that while the Disciplinary Authority had taken into consideration the recommendations of the UPSC and the advice tendered by the CVC before passing the order without having provided the applicant copies of the same with reasonable opportunity to him to defend himself or to offer his comments over this, found that this was fatal to the proceeding and, hence, the order. More over the validity of charge memo/sheet dated 15.11.1993 has never been discussed and decided in any case except in O A No.3660 of 2012 and the same fact is crystal clear from the contents of para no.15 of the judgment dated 31.10.2013.
K. Because the Honble Tribunal has committed a glaring mistake/error of law/fact both by assuming that if the junior officer gets promotion earlier than his senior, then he supersedes his senior and becomes senior to his senior in All India Services. The above concept is applicable in CCS BUT not in AIS, because the seniority in AIS is fixed from the date of selection and once it is fixed then the same continues through out the entire service period, accordingly even if a junior officer gets promotion earlier than his senior officer, even then he is placed below his senior officer. Under the above stated fact the HT has committed a glaring mistake/error by applying the Judgment of Pankajesh versus Tulsi Gramin Bank & Another [(1997) 7 SCC 68, (wherein the requirement is that the enquiry officer had to be higher in rank than the delinquent officer in para no.25 in this judgment But as per rule 8(3) of the AIS(D&A) Rules, 1969 states as below:-
Where a Board is appointed as the inquiring authority it shall consist of not less than two senior officers provided that at least one member of such a Board shall be an officer of the Service to which the member of the Service belongs AIS the enquiry officer had to be Senior Officer than the delinquent officer.
L. Whether the HT was correct in ignoring that as per the maxim delegatum non protest delegare, the statutory power must be exercised only by the body and office to whom it has been conferred and none else can discharge the function entrusted to it by law?. As the HT has held valid the Chargesheet/memo dated 15.11.1993 issued by Respondent no.I, in stead of Respondent no.2 i.e. JCA M. Whether the Honble Tribunal was correct in ignoring the judgment of the Honble Courts in the case of followings:-
Pradyat Kumar vs. Chief Justice of Calcutta [1956 AIR 285, 1955 SCR (2) 1331] wherein the Supreme Court observed that it is well recognized that the statutory functionaries exercising the power of delegation cannot be said to have delegated such functions merely by deputing responsible and competent officials to enquire and report. This is the ordinary mode of exercise of any administrative power?
Marathwada University vs. Seshrao Balwant Rao Chavan, (1989) 3 SCC 132, wherein the Honble Supreme Court has held that if a statutory power has been given to an Authority or Body, then the said statutory power has to be exercised by that Authority or Body alone and nobody else. The Court goes ahead to hold that if there is no provision in the statute for further delegation of the statutory power, there can be no such delegation.
On the strength of the above, the learned counsel for the applicant submitted that there could not be any sub-delegation of the power of Joint Cadre Authority. The above principle has been followed by the HT in the case of Shankarsan Dash I G P Versus Union of India & Ors. in OA No.2602/2012 on 13 December, 2013 when it held:-
19. We, therefore, hold that the impugned transfer order has been made by the incompetent body, i.e., Ministry of Home Affairs, as the Joint Cadre Authority is the only competent authority. .. we further hold that in the instant case, the impugned order of transfer dated 17.9.2012 is ab initio illegal as it has not been made by the competent body. ..
20. The impugned order dated 3.8.2012 is quashed and set aside;
(Dr. B.K.Sinha) (Syed Rafat Alam) Member(A) Chairman Dr. Ramesh Chandra Tyagi vs. Union of India and others 1994(2) SCC page 416 (para 5) which is as under:-
5. , there is no option but to hold that the order was not passed by the person who alone was competent to do so. The transfer order issued by the Director General, thus, being contrary to rules was non-est in the eye of law. Darshan Singh vs. St. of Haryana SLJ 2000(2) P&H 306 HELD:-
Non delegable powers cannot be delegated. N. Whether the Honble Tribunal was correct in doing injustice to the applicant by acting as legislation instead of acting as judicial form by granting power of delegation to the Respondent no.1 of Disciplinary Authority in place of respondent no.2 i.e. JCA (Contrary to the law laid down by the HSC stated in above paras), while holding valid the Charge sheet/memo dated 15.11.1993 issued by the respondent no.1 instead of respondent no.2 (JCA) to apply the principle of Resjudicata?. Now can it be expected from the HT to undo the injustice done to the applicant by reviewing the order dated 31.10.2013 in view of the law laid down by the HSC in the case of Surjit Singh & Ors. vs. Union of India & Ors.-(1997) 10 SCC 592 wherein it was held as below:-
The Tribunal has wrongly stated that if they commit mistake, it is for the Supreme Court to correct the same. That view of the Tribunal is not conducive to the proper functioning of judicial service. When a patent error is brought to the notice of the Tribunal, the Tribunal is duty-bound to correct with grace its mistake of law, by way of review of its order/directions. O. Whether the Honble Tribunal was correct in observing and concluding in para no.19 of the judgement as following?
19. We find it very difficult to believe that it was for the first time that the applicant came to know about the charge memo in the year 2011. Moreover, as would be apparent from the Table given above that as the charge memo has been the basis of all decisions having been assailed consistently, it is not now open for the applicant to re-open the question of legality of the charge memo as the bar under Section 11 of the Code of Civil Procedure, 1908 would fully apply, to our mind. While the applicants claim was as stated in para no.1.a.iii, 1.a.iv, 4.Z.9 and 4.Z.10 in the O A no.3660 of 2012 and the same is reproduced as following:-
1.a.iii) the applicant in connection with the said Memorandum applied for inspection of the file from which the said Memorandum had been issued, vide his RTI applications dated 4th May 2010, 2nd August 2010 and 12th Jan, 2011. The respondents vide their communication dated 03.02.2011, informed the applicant to obtain the required information about the file No.29033/01/1991-AVU from Shri Vijay Kumar (director Vigilance & CPIO) of Respondent no.1 directly as he is a public Authority under RTI, Act 2005. The applicant then approached him many times and ultimately, was allowed the inspection of the file No.29033/01/1991-AVU only on 27.04.2011. The applicant inspected two parts and selected 351 pages and deposited Rs.702/- as cost of photo copies @ Rs.2/- per paper. From the said inspection, the applicant came to know for the first time that approval of the President (Env. & Forests Minister) had not been taken before issuing the impugned charge memo against the applicant, thereby making the said charge memo without Jurisdiction, illegal and void ab initio.
1.1.iv) The applicant after obtaining and going through the Certified Photo Copies of the documents also came to know that vide order dated 30.11.1994 in O.A.No.1876 of 1994, this Honble Tribunal had made the observations that the Charge Memo dated 15.11.1993 is illegal and without Jurisdiction, hence is void ab initio as the same is issued without taking the prior approval of the President (Minister of Env. & Forests).
Contents of para no.4.Z.9 and 4.Z.10 of the O A No.3660 of 2012 be taken and read as part of this para specially following part:-
The related files and documents were not available with the applicant so a request was made to this Honble Tribunal on 13th May 2011 for providing certified copies of all the orders in O.A.No.1876 of 1994. The copies were made available on 7th July 2011. It is most relevant to state here that instead of filing a Review Application, the Respondents intentionally had filed the SLP after tempering/modifying their RECORDS and got the Order stayed and finally vide order dated 19.01.1996 allowed the SLP by the Honble Supreme Court. And from that SLP one important Point emerged clearly about the existence of the JCA (Respondent No.2.). More over the contents of para no.15 of the judgement dated 31.10.2013, no where show that the charge sheet dated 15.11.1993 has been challenged, discussed and decided on merit in any O A prior to O A No.925 of 2012 and in that case too the Honble Tribunal vide order dated 11.10.2112 (sic. 11.10.2012) has finally disposed the OA No.925 of 2012 as following:-
2. Accordingly the O A is permitted to be withdrawn with liberty to the applicant to file fresh Original Application challenging the subsequent order dated 25.09.2012 passed by the respondents along with the chargesheet. However, it would be open to the applicant to raise all the grounds while challenging the chargesheet and the punishment order.
7. Heard both sides and have been gone through the pleadings on record.
8. This Tribunal disposed of the OA No.3660/2012 by its Judgement dated 31.10.2013. The present RA has been filed on 10.03.2014. As per Rule 17 of the Central Administrative Tribunal (Procedure) Rules, 1987, No application for review shall be entertained unless it is filed within 30 days from the date of receipt of a copy of the order sought to be reviewed. The review applicant neither calculated the specific delay of number of days in filing the RA nor filed any separate MA seeking condonation of the said delay. However, as a part of the review prayer itself, he sought for condonation of delay in filing the RA while submitting that due to his eye problem and the connected operation, he could not file the RA in time. In these circumstances and in the interest of justice, and in view of the age of the applicant, the delay in filing the RA is condoned.
9. The scope and power of this Tribunal under Section 22(3)(f) of the Administrative Tribunals Act, 1985 is limited and akin to the power of a Civil Court under Section 114 read with Order 47 Rule 1 of CPC. As per the settled principles of law while exercising the power of review, correction of an erroneous view taken earlier is not permissible.
10. The Honble Apex Court in Ajit Kumar Rath v. State of Orissa and Others - (1999) 9 SCC 596 held that power of review available to the Tribunal under Section 22(3)(f) is not absolute and is the same as given to a Court under S. 114 read with Order 47 Rule 1 of CPC.. It has further held that the scope of review is limited to correction of a patent error of law or fact which stares in the face, without any elaborate argument being needed to establish it and that exercise of power of review on a ground other than those set out in Order 47 Rule 1 amounts to abuse of liberty granted to the Tribunal and hence review cannot be claimed or asked merely for a fresh hearing or arguments or corrections of an erroneous view taken earlier.
11. In Union of India v. Tarit Ranjan Das, - 2004 SCC (L&S) 160 the Honble Apex Court held that the scope of review is rather limited and it is not permissible for the forum hearing the review application to act as an appellate authority in respect of the original order by a fresh order and rehearing of the matter to facilitate a change of opinion on merits.
12. In State of West Bengal and Others v. Kamal Sengupta and Another (2008) 8 SCC 612 the Honble Apex Court after referring to Ajit Kumar Rathis case (supra) held that an order or decision or judgement cannot be corrected merely because it is erroneous in law or on the ground a different view could have been taken by the Court/Tribunal on a point of fact or law and while exercising the power of review the Court/Tribunal concerned cannot sit in an appeal over its judgment/decision.
13. The applicant, in the present Review is trying to re-agitate the issues which have been argued, considered and decided by this Tribunal while disposing of the OA.
14. Suffice it to examine one contention raised by the review applicant, in this regard. The Review applicant submitted that the Judgements of the Honble Apex Court in Union of India & Others v. B.V.Gopinath & Others, decided on 05.09.2013 (Civil Appeal No.7761/2013), AIR 2014 SC 88 and U.P.Power Corporation Limited and V. Virendra Lal (Dead) Through LRs, decided on 3.10.2013, (2013) 10 SCC 39, were handed over by him to this Tribunal on 30.09.2013 and 10.10.2013 respectively, in open Court, however, this Tribunal while disposing of the OA, 3660/2012 has not considered the said Judgements. It is further submitted that since he questioned the charge memo dated 15.11.1993, on the ground that the same was issued without proper approval of the competent authority, and that the Honble Supreme Court in Gopinaths case (supra) held that the charge sheet/charge memo issued without the approval of the disciplinary authority was non est in the eye of law, the same has bearing on his case and in spite of placing the same before this Tribunal before disposal of the OA, as the same has not been considered, it amounts to an error apparent on record and hence, the RA is liable to be allowed.
15. It is to be seen that this Tribunal while disposing of the OA, having considered the said ground raised by the review applicant, and also having considered the judgement of the Honble High Court in Union of India v. B. V. Gopinath (WP(C) No.10452 of 2009), which was upheld by the Honble Supreme Court on 05.09.2013, observed as follows:
16. From the above, it emerges clearly that the earlier five successive rounds of litigation have been decided on the basis of the Charge Memo dated 15.11.1993. Now, the applicant has sought to question that the charge memo had been issued without proper approval of the competent authority and without issue of show cause notice as also having considered the representation of the applicant. It is further contended that it is the JCA, which is the only disciplinary authority. We also take note of the fact that the issue of res judicata has been raised by the learned counsel appearing for the respondents on the ground that the charge memo dated 15.11.1993 has been consistently the platform for all these legal contestation in the five earlier successive rounds, which have been considered and decided. Therefore, its validity cannot be questioned at the present moment
16. Since the Judgement of the High Court in Gopinaths case (supra) has been upheld by the Supreme Court and hence even the non-consideration of the Supreme Court Judgement does not in any manner effect the findings recorded in the Judgment. Further, since the Tribunal for the reasons mentioned, categorically held that the validity of the charge memo cannot be questioned, the said judgement has no application.
17. The applicant contended that the finding of this Tribunal that the challenge to Charge Memo dated 15.11.1993 cannot be made in OA No.3660/2012, as the same is hit by the principle of resjudicata, is erroneous. In this regard, he submitted that this Tribunal while permitting him to withdraw the OA No.925/2012 on 11.10.2012, wherein he questioned the Order dated 25.09.2012, imposing a penalty of forfeiture of full pension and entire gratuity on permanent basis on him, given liberty to challenge the chargesheet also along with the penalty order, by raising all the grounds, and hence, his challenge to the said Charge Memo in OA No.3660/2012 is maintainable. It is to be seen that whenever any Court grants liberty to any litigant to question any order or agitate any issue, it goes without saying that the said liberty can be exercised, only, if permissible in the facts and circumstances of the case, and in accordance with law. This is more so when such a liberty is granted without examining any issue in detail before granting said liberty. In any event, the contention of the applicant is that not considering his challenge to the Charge Memo, is an erroneous finding of this Tribunal, which cannot be ground for seeking review of the said order. It is relevant to state that this Tribunal while disposing of the OA No.3660/2012, has quashed the penalty order dated 25.09.2012, for the reasons mentioned therein.
18. Similarly, the Judgement in Virendra Lals case (supra), wherein it was held that the penalty order passed by an appellate authority, depriving the right of appeal to the delinquent, is bad, has no application to the facts of the applicants case, since the rules applicable in both the cases are different and that under CCS (Pension) Rules, 1972 the President is the authority to impose any penalty on the applicant, who is a retired Government servant. Hence, non consideration of the said judgement, cannot be a valid ground for seeking review.
19. A bare perusal of the rest of the grounds raised by the applicant clearly indicate that he is trying to re-argue the OA afresh which is not permissible under the review jurisdiction of this Tribunal. If, the applicant is aggrieved in any manner, with the Judgement of this Tribunal in the OA, the remedy lies elsewhere, but not a review, unless he able to show any valid ground to invoke the review jurisdiction of this Tribunal.
20. For the aforesaid reasons, we do not find any valid reason for entertaining the present RA and accordingly the same is dismissed. No order as to costs.
(V. N. Gaur) (V. Ajay Kumar) Member (A) Member (J) /nsnrvak/