Central Administrative Tribunal - Mumbai
Shri Prakash Vasant Ratnaparkhi vs M/O Finance on 14 February, 2018
i RP No.03/2018 CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAI BENCH, MUMBAI R.P.No.03/ 2018 in ORIGINAL APPLICATION No.633/2015 Dated this pes fi , the day of February, 2018 CORAM: HON'BLE SHRI ARVIND J.ROHEE, MEMBER (J) & HON'BLE MS. B.,BHAMATHI, MEMBER (A) Union of India Through Principal Chief Commissioner of CGST and Central Excise, Mumbai, 115, GST Bhavan, MK Road, Mumbai 400020 & Ors .... Applicants in RA/ Respondents in OA (By Advocate Sh. V. S. Masurkar) Versus. Prakash Vasant Ratnaparkhi and 10 others. .. Respondents in RA/ Applicants in OA. (By Advocate Sh. S. V. Marne) 2 RP No.03/2018 (ORDER ON REVIEW APPLICATION BY CIRCULATION) ~ ORDER | PER:-HON'BLE Ms.B.BHAMATHL MEMBER (A)
The present Review Application is preferred by the applicant u/s 22(3)(f) of AT Act, 1985 seeking review of the order of the Tribunal in OA 633/2015 dated 21.06.2017 as follows:
"Pray that this Hon'ble Tribunal be pleased to review its judgment and order dated 21.06.2017 being "Exhibit RP-1" hereto and after examining the legality, validity and propriety thereof, be pleased to recall the judgment and order dated 21.06.2017 and be pleased to dismiss the OA No.633/2015 filed by Shri PV.Ratnaparkhi & 10 others."
2. The Review Petitioners have raised the following grounds for Review:
5. The Review Petitioners are relying upon the detailed note with regard to the brief facts for defending the cases on the same issue before the different CAT/Court cases filed by the Superintendent for grant of 3° MACP in the grade pay of Rs.6600/- is reiterated herein above, as if the same is reproduced in 'Verbatim in'the Review Petition. Hereto annexed and marked aS Ex-RP-2 the brief note for quick reference so as to avoid repetition of the same contention again and again.
6, There is an error apparent on the face of the record and therefore the present RA is filed. The errors which are apparent on the face of records are narrated herein below: ~~ {A) The Petitioners states that the learned Tribunal heavily relied upon the judgment in the case of R.Chandrasekaran, i.e., para 2.7 to para 2.11, 3.1, 5,6,7,3,15,19 & 20. However the correct position is that the DOPT in the case off R.Chandrasekaran has been withdrawn the benefits granted to him and thus the respondents are not entitled for any benefits (the para 15,16,17 & 18 of the Annexure RA-2 are relevant in this respect.
(B) It is seen that the Hon'ble Tribunal has finalized the case 3 RP No.03/2018 without considering all the facts which have already been placed before it. Further, they have finalized the case on the basis of interim reply filed by the Petitioners without affording opportunity of filing detailed parawise reply to the OA, even when the issues have already been finalized -by the DOPT vide letter dated 26.05.2015 and 20.06.2016 and also by Ministry of Finance (para 14 and 15 of Annexure RA-2) are relevant in this respect. (C)The petitioners have already placed before the learned Tribunal that the speaking orders have been passed as early as 14.06.2016 on identical cases but the learned Tribunal did not consider it and the reasons stated therein.
(D}The petitioners state thatthe directions issued by the Ministry of Finance dated 26.05.2015 have been withdrawn since the DOPT in its subsequent clarification dated. 02. 05.2016 has intimated that the grant of NFSG with GP of Rs. 5400 in PB-2 on completion of 4 years in the grade of Superintendent would be counted as one financial upgradation under the MACPS and had accordingly directed the Ministry to submit the same before the Hon'ble Madras High Court. Therefore, the Ministry has withdrawn the letter dated 26.05.2015 directing the Chief Commissioner, 'Chennai Zone to implement the decision of the Hon'ble Madras High Court.
7. The review applicants respectfully submit that the judgment and order dated 21.06.2017 may be reviewed in the interest of justice. In support of their contention the respondents are relying upon the judgment Hon'ble Supreme Court in the case of (A) Surjeet Singh V/s Union of India reported in (1997) 10 SCC 591. The ratio is reproduced for quick reference: -
"Tribunal has wrongly stated that if they commit mistake, it is for this Court to correct the same. That view of the Tribunal is not conductive 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 flaw by way of review of the its order/directions."
(B} Ajit Kumar Rath V/s State of Orissa: reported i in AIR 2000 {SC} 85 para 30 has endorsed the view of the'availability of review in a Tribunal. The power can be exercised by the 'Tribunal on an application of the party on the discovery of new and important matter of evidence which after the exercise of due diligence was not within the knowledge of the Department and it could not be produced at the time of hearing. (C)in another matter reported in 1998 AIR SCW 2701 Revenue Divisional Officer and other V/s A.Aruna and others, the Apex Court holds that review jurisdiction can be exercised by the authorities to prevent miscarriage of justice.
8. Petitioner submits that the action of the petitioner is strictly in accordance 4 RP No.03/2018 with jaw and the decision taken by the petitioner are as per law, equity, fair & just, therefore the order of 'Hon'ble Tribunal, Mumbai, deserves to be reviewed on this ground alone."
3. Among the contentions in the RP is the reliance on Exhibit RA-2 which is an undated, unsigned note submitted purported to be containing the main cause of filing the Review Petition containing facts already agitated in the OA, which the Tribunal has not considered while adjudicating the OA. This record is used to show that in the case of R.Chandrasekaran, the benefits have been withdrawn by DOP. Further, a certain speaking order passed on 14.06.2016, in this connection, was brought to the notice of the Tribunal in the OA. Even then the Tribunal relied upon the judgment in the case of R.Chandrasekaran, to grant relief to applicants in OA which is the error apparent on the face of record and hence this RP.
4. A perusal of record shows that van affidavit in reply" was filed on 14.03.2016 by learned counsel for respondents in OA (Review Petitioner). The applicants did not prefer to file rejoinder, apparently seeing the contents of the reply, which we shall detail later in this order as pleadings were treated as completed on 07.11.2016. Both counsels were heard finally on 07.06.2017 and the OA was reserved for orders. The OA records show that the respondents only sought to file/filed "affidavit in reply" to main OA. There is no reference anywhere to treat the reply dated 14.03.2016 as an interim reply. This was their 5 RP No.03/2018 only and final reply. There was also no prayer before the Tribunal to produce any form of additional reply/additional typed set between 14.03.2016 to 07.06.2017. On 26.04.2016 CFR only filed MA 461 of 2016 for deletion of R-1 and there was not a breath about filing further reply. As per Review Petitioners RA-2 was in their possession, but which they failed to bring on record, for reasons best known to them. In fact they chose not to annex any document whatsoever to their only reply nor did they refer to the contents of the above unsigned note in the affidavit in reply. "The format they chose to file reply was also not parawise. The applicants in the OA naturally, chose to file no rejoinder. It was in this factual background, as borne out from records that the OA was heard/reserved.
5. We now draw our attention to the relevant paras of the reply statement in the OA, which will amply demonstrate our findings at Para 4 above, which reads as followst-
"6. The Brief history of the present case is as follows:
G.Quoting the case of R.Chandrasekaran, applicants of the instant OA are claiming that they are similarly placed to Shri R.Chandrasekaran and sought similar benefit. "In this context, it is submitted that the case of Shri. R.Chandrasekaran was 'referred to DOPT for their advice, DOPT clarified that applicant, i.e., Shri R.Chandrasekaran is entitled for grant of 3° MACP in the GP of Rs.6600/-- under MACP Scheme.
(H) The Hon'ble High Court, Madras vide order dated 08.12.2014 in case 60. ; RP No.03/2018 of R.Chandrasekaran has advised the concerned Department to issue a fresh circular to codify all the circulars issued earlier, explaining the nature and scope of the MACPS and as to whether non-functional scale would be counted or not. Accordingly, the matter has again been referred to DOPT on 21.07.2015 for clarification. it is learnt that file is under examination in consultation with the Department of Expenditure.
In the absence of DOPT's concurrence in the matter, the respondents are hot in a position to clarify. whether DOPT's opinion in the case of R.Chandrasekaran is applicable to other officers.
in view of the above 'submissions, the OA may be dismissed as pre mature since the matter is referred to DOPT for consideration for grant of GP of Rs.6600/--as 3" financial upgradation under MACPS to eligible officers." Peete
6. The reply statement in the OA was brief and cursory and did not contain even the parawise comments in reply to the OA. Para 6 A to H in the reply statement only contains "The brief history of the case"
in which no averment is made as.per the grounds made out as an after thought in the Review Petition. "There is, inter alia, no reference that it is an interim reply and therefore not a para-wise reply. It has no reference that DOPT has withdrawn the benefits granted to Chandrasekaran. There is no 'reference to the speaking order dated 14.06.2016. The applicants found no need to file rejoinder and case was finally heard when pleadings were treated as completed.
7. Hence, after full hearing of both the learned counsels, in which learned CFR averred nothing outside the submissions in the reply statement, the operative part of the order in the OA starting para-18 onwards reads as follows: _ "45. {tis noted that in a similar matter a group of OAs. le No. 95/2014, 7 RP No.03/2018 $8/2015, 125/2014, 126/2014, 127/2014 and 733/2014 decided on 6.7.2015 (all Supra) were disposed by this Tribunal by a common order passed in ail the above OAs., in' respect of six applicants involved in each of the above OAs. The Tribunal directed respondent no. 3 to consider the cases of the applicants in the light of the Judgment passed by the Hon'ble High Court at Madras, as well as, communication dt. 26.3.2015 issued by the CBEC and pass a reasoned and speaking order granting reliefs as prayed for by the applicants, -if the applicants are covered by the said Judgment in the case of Shri 'Chandrasekaran. A time frame of 12 weeks were granted from the date of receipt of copy of the order in the said OAs. There is no reference by either of the parties in the present OA as to the status of the compliance of the order c of this Tribunal in the above OAs.
16. in OA No. 680/2015 decided on: 25. 1.2016, this Tribunal passed a similar order:-
"10. Accordingly, the respondent no. 2 is directed to consider the case of the applicants in OA no. 680/2015 the light of the judgment passed by the Hon'ble High Court of Madras as well as communication dated 26.03.2015 issued by the Central Board of Exicse and Customs, ..New "Delhi, addressed to the Chief Commissioner of Central-Excise, Chennai Zone, Chennai, and pass a reasoned and speaking order granting reliefs as prayed for by the applicants if the applicants are covered by the said judgment of the Hon'ble High Court of Madras within six weeks from the date of receipt of a copy of this order. The Original Application is disposed of with the above direction."
17. In another set is OAs. No. 210/2016 & 1751/2015, the CAT Chennai Bench passed similar order in similar matter, which reads as follows:- Oo "8, Per contra, the learned counsel for the respondents would submit that the factual scenario has to be analyzed by the respondent department thoroughly and then only a reply could be given. ae
5. The learned counsel for the 'applicants would submit that his clients would be satisfied if a direction is given to the respondent authority concerned to verify as to whether the factual matrix involved in this case is similar to the case of R. Chandrasekaran and #f it is so, they could also be extended with the same benefit of Ill MACP without raising objection that they were not parties to the High: Court proceedings.
6. We could sée considerable force in the submissions of the learned counsel for the applicants that what is applicable for 8 RP No.03/2018 R.Chandrasekaran is also applicable to the applicants provided their cases are also similar to the case of R.Chandrasekaran despite the fact that they were not parties to the High Court proceedings under article 14 of the Indian Constitution in matters of this nature simply the department cannot carve out exception and that too when already Central Excise Office sponsored the applicants names for ill MACP. -As Such,we hereby give a direction to the respondent authority concerned, which includes the Pay and Accounts Officer also that if the cases of the applicants are similar to the case of R. Chandrasekaran,then they are also to be given with the benefit of Ill MACP and accordingly it shall be processed within a period of six weeks from the date of receipt of a copy of this order." --
18. We note that there is no reference that the order of the Tribunals in the above OAs at paras 15, 16 & 17 of this order have been challenged by either party. The orders were passed in 2015 and 2016 and there is no reference, specifically, to the status of compliance of the orders in the OAs. The only development is that a general reference (post judgment of the Hon'ble High Court of Madras) is pending with DOPT since 2015.
19. The Tribunal is ted to believe that the respondents have not been quick to act or obtain decision on the directions of the Tribunal in the said OAs and the matter appears to be pending even as late as June, 2017 when the present OA is being heard regarding 11 more similarly situated applicants. A waiting line/queue of pending orders has been created with a line of same orders for disposal in similar matters. The queue has practically not moved forward and remained static since 2015. Hence, we are not inclined to permit' respondents to take any further umbrage by merely directing them 'to passa reasoned and speaking order, as in the earlier OAs, so long as it is not denied by respondents, anywhere in the OA that present applicants are dissimilarly situated to that of Shri R.Chandrasekaran. The only view taken is that the reference is pending in DOPT in the light of the order in R.Chandrasekaran's case (supra).
20. Further, a view has already been taken after due Inter-Ministerial consultation following the judgment of the Hon'ble High Court of Madras. Inter-Ministerial consultations means that the decision is not a decision in personam, but a decision in'rem, Hence, having complied with the order the Hon'le High Court of Madras, the Judgment of the Hon'ble High Court being a judgment in Rem leaving no scope for further dilly dallying by respondents to pass a similar order in favour of present applicants not distinguished in the OA by respondents as being dissimilar. The judgment of the Hon'ble High Court of Madras (and Hon'ble High Court of Punjab & 9 RP No.03/2018 Haryana, as referred in the order of the Hon'ble High Court of Madras) has attained finality. Any similar. direction in the light of earlier OAs is not warranted, in such a situation, in the interest of justice and resolving and not keeping disputes pending, where they qualify to be disposed of finally."
8. In view of the above, it is clear that Review Petition has brought on record contents of RA-2 which were not averred/annexed before the Tribunal in the OA, although the entire contents of RA-2 predate the order in OA dated 21.06.2017. Hence, the contents of RA-2 was not outside their knowledge. But for reasons best known to them, they did not bring it to the knowledge of the Tribunal when OA was being contested/adjudicated. Hence, this Tribunal cannot be called to review its order which was passed based on written and oral submissions and reasons made available, on the basis of the affidavit in reply, which was deemed sufficient and not insufficient at that juncture by Review Petitioners themselves. The Tribunal went by what was on record.
9. It is nothing but sheer falsity on the part of Review Petitioners to state that the contents of RA-2 was made available in the OA or that the contents of RA-2 were made available in any form in the OA. Hence, relying on the judgment in Surjeet Singh (supra) at Para 7(A) of this RP, the respondents have committed the impropriety of claiming that it was a mistake on the part of the Tribunal that it did not take into consideration RA-2 which is now established to be non existent/fictitious document of the OA records, when it was heard and 10 RP No.03/2018 reserved for orders.
10. Itis evident that the Review Petitioners have not approached the Tribunal with clean hands and for this reason alone the RP is fit to be dismissed. R-1 is directed to carry out an inquiry into the matter and taken action against all those responsible for filing this Review Petition, alleging mistake on the part of the Tribunal on the grounds made out in the Review Petition.
11. Had the Tribunal been apprised of the contents of RA-2 at the time of passing the order in OA, the same would have been duly considered by the Tribunal. Hence, it is clear that the Review Petition is filed on the basis of undated, known material, which due to glaring omissions on the part of respondents and sheer lack of due diligence could not be placed before the Tribunal at the time of adjudication of OA 633/2015.
12. It is established in the course of passing this order on the Review Petition that mistake if any was committed by the Review Petitioners and the OA met the fate at the hands of the Tribunal, as per the facts and circumstances and legal position presented before the Tribunal by learned CFR in OA. 'The order under Review was brought upon themselves by their own act of omission. They were hoist with their own petard as Shakespeare would say in Hamiet. In such a situation, the Review Petitioners are indulging in wanton waste il RP No.03/2018 of the time and resources of the Tribunal by coming in the garb of a Review of an order without "any patent error on the part of the Tribunal, whereas the grave error | was on the part.of the Review Petitioners.
13. The decision of Hon'ble 'Supreme Court, in the case of Ajit Kumar Rath (supra) relied upon by Review Petitioners does not nelp to advance their case. In the judgment, it is categorically stated that "A review cannot be claimed or asked 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", The extracts of the same judgment relied upon at Para 7B by the Review Petitioners cannot be countenanced, since" A: is. crystal clear that it is the respondents, who failed to exercise . due * diligence. The judgment in Ajit Kumar Rath (supra) is. liable to throw out of its purview all those, like Review Petitioners, who seek Review knowing fully well that they did not display diligence in contesting the OA. No review is permissible on the basis of the said unsigned, undated document, flashed out in a Review Petition for the first time.
14. The reliance on the Revenue Divisional Officer and other V/s A.Aruna and others (supra) 'holding that the review jurisdiction 12 RP No.03/2018 can be exercised by the authorities fo prevent miscarriage of justice is now merely a matter of how the Review Petitioners themselves prefer to adopt a course of action in accordance with law, since the Review Petition is held not maintainable. They must look for other alternative legal remedies, other than' Review 'having aborted justice and as a self-corrective measure, : for "failing ; to duly protect Government interests at the relevant-point in time.
15. Per contra, the Hon'ble. Supreme Court in the case of State of West Bengal and Ors.-vs- Kamal Sengupta and Another reported in 2008 (3) AISLJ 231 has held as follows:-
"S. in the matters concerning review the Tribunal is guided by Rule 47(1) of CPC. The parameter of a review 'application is limited in nature. The Apex Court has laid down the contours of a review application in the State of West Bengal and Ors. Vs Kamal Sengupta and Another (Supra).
At para 28 the Hon'ble Apex Court has laid down eight factors to be kept in mind which are as follows:.
(1) The power of the Tribunal to review is akin to order 47 Rule 1 of CPC read with Section 114.
(2) The grounds enumerated in order 47 Rule 1 to be followed and not otherwise: .-
(3) "that any other sufficient reasons" in order 47 Rule 1 has to be interpreted in the light of other specified grounds.
(4) 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 onthe face of the record.
(5) An erroneous decision cannot be correct under review.13 RP No.03/2018
(6) An order cannot be reviewed on the basis of subsequent decision/judgment of coordinate/ larger bench or a superior Court.
(7) The adjudication has to be with regard to material which were available at. the time of initial. decision subsequent event/developments 2 are not. error r apparent. ~ (8) Mere discovery of new/i imp shea matter or evidence i is.
not sufficient ground for. review. The p ty also has to show 'that such: matter or evidence was not within. its: knowledge © . and even after. the. exercise of due' diligence the same. could Ao, not. tbe e produced earlier before the Tribunal." PTE E eof ne
16. RA-2 may be important, but it is not a new matter. It was a belated discovery of a matter already known to the Review Petitioners during the OA. RA-2 relied upon in the Review Petition, filed as an undated unsigned document makes mockery of a genuine Review Petition. The above judgment at para 5(8) above rules out any scope for review.
17. From the above discussions, it is obvious that there is no substance in the present RA. Keeping the averments in the Review Petition in view, keeping the wanton nature of the submissions of Review Petitioners alleging mistake on the part of the Tribunal to cover up Review Petitioners' own acts omission resulting from lack of due diligence, the Tribunal is constrained to impose a cost of Rs.10,000/- on the Review Petitioners, even: as: the RA is dismissed by circulation.
The amount imposed as costs shall be e paid to the State Legal Services 14 RP No.03/2018 Authority within one week from the date of receipt of certified copy of Wee this order.
i " RA etn adlny i (B. BHAMATHI) (A.J. ROHEE) MEMBER (A) MEMBER (3) yA' 02.2018 M.T. PE es Y