Central Administrative Tribunal - Kolkata
Eastern Railway vs Manju Sarkar on 11 July, 2023
ame KOLKATA BENCH KOLKATA No. R A.350/14/2023 | (0.A.350/1381/2013) Coram For the . The Divisional Railway Manager, Sealdah, . The Senior Divisional Personnel Officer, Eastern Railway, Sealdah, Kolkata-70000 Review Applicants - Mr. R. Halder, courisel: : Hon' ble Mr.J ayesh Vv. Bhairavia, Judicial Member 1. The Union of India, Service through the General Manager, Fairlie Place, 17, N. 8. Road, - Kolkata -700001; Eastern Railway, Sealdah Division, Kolkata -70001 4; The Senior Divisional Engineer (C ), | Eastern Railway, Sealdah Division, 'Kolkata- 70001 4 . The Assistant Hnpinger-2° 2: Baste Railway, | :Sealdah Division,? Kolkata 27000 14 wh H -Versus: -? _ Smt. Manju Sarkar, wifeof Late Biplab Worked as Permanent Way Inspector _ 'under Assistant Engineer-2, Eastern © | Ranjan Sarkar, Aged about 48 years, | | 'Railway, Posted at Barrackpore and Residing at 2, Kadamtala Kanthdhar, Ichapur, Post Office Nababganj, P.S. Noapara, District-24 Parganas(North) \, . Pin -- 743144; - . \ Shri Jaydeep Sarkar, son of Late Biplab Ranjan Sarkar, Aged about 23 years, ~ Residing at 2, Kadamtala Kanthdhar, Ichapur, Post Office Nababgan], | P.S. Noapara, District-24 Parganas(Noth} Pin -- 743144; | i : . \ 4 i . ; . va i 1 R.A, 350/14/2023 in O.A. 350/1381/2013 IBRAR ny yur a . CENTRAL ADMINISTRATIVE TRIBUNAL 3 Date of order : 11.7.2023 © evap thaaees .Petitioners(original respondents) we leaeeeees Opponents (Original applicants) | le 2 R.A. 350/14/2023 in O.A. 350/1381/2013 _ For the opposite party : None ORDER (Oral)
(Disposed of by circulation) The present Review Application has been filed. by the original respondents in O.A.No.350/ 1381/2013 seeking review of the order dated 23.05.2023 passed by this Tribunal.
2. This Tribunal in terms of provision of Section 26 of the AT Act decided the point involved in the. O.A. vide order dated 23.5.2023 whereby the impugned second charge memorandum dated 20.10.2006 was set aside and consequently the | order dated 18.8.2012 passed by the Disciplinary Authority imposing the penalty of dismissal from service was quashed and set aside.
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3. - Ld. Counsel for the applicants ine the 'R. A: PE ays for modification of the order dated 93.05.2023 mainly on the: around tat ine:order passed by this Tribunal is "ES 1 he contrary to Railway rules and pro¢ediire. It'is stated that the 2° charge sheet was So a issued against the original applicant % as pet "the provision contained in RBE No. 171/1993 whereby it is permissible to: issue second charge sheet if sufficient reasons are mentioned for withdrawing the first char ge sheet and for issuance of a second one: The Railway respondents had furnished adequate and proper reasons for withdrawing the first charge' sheet and j issuance of a second charge sheet in communication dated 9.10.2006 (RA/2). Therefore, the order under review is required to be recalled since the said submission of the respondents have not been taken into consideration. Further, it is stated that the applicant had obtained appointment by producing fake certificate. The applicant in R.A. by referring to the . | judgment passed by the Hon'ble Apex Court submits that it is settled principle of law that where an applicant get an order by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eye of pe 3 R.A. 350/14/2023 in O.A. 350/1381/2013 law. Further, by relying upon the order passed by the Hon'ble Apex Court in the _ case of Union of India & ors. v: Dilip Biswas etc. Civil Appeal No. 12474 -- /12480/2017 decided on 11.9.2017, submits that the Hon'ble Apex court while considering the charge levelled against the respondents therein that they gained appointment without . there being any genuine appointment, the charge was established after. due: enquiry, held that even if there was any procedural irregularity, there was. no justification for quashing the order of termination. Accordingly, had 'allowed the appeal filed by the Union of India & ors. Therefore, the action taken by the respondents by "way of issuing the second chargesheet against the original applicant was just and proper and the O.A. is required to be reviewed accordingly. For the said reasons, the applicant in R.A. (original respondents) seeks review / modificatidn of the order dated 23.5.2023 passed in O.A. 350/1381/2013. wat tH, 4 oe a nate nee at me } Tu d h je me ae ; A rm ; erused the pleadings anilthe|p Baten ialgon fe Gor es
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5. It is worth to mention that, ite scope of: review of an order passed by courts/Tribunal is very limited and the applicants cannot seek review for correction of the view taken earlier or for rehearing of the matter. The scope for Review Application is clearly defined in various, orders of the Hon'ble Supreme Court. In the case of State of West Bengal & others y. Kamal Sengupta and another (2008) 8 SCC 612 the Hon'ble Apex Court held :-
"Tribunal-can exercise the powers of a Civil Court in relation to matters enumerated in clauses (a) to (i) of sub-section (3) of Section 22 of the Administrative Tribunals Act including the power of reviewing its decision. By referring. to the power of a Civil Court to review. its judgment/decision under Section 114 CPC read with Order 4 7 Rule ICPC" ' 4 R.A. 350/14/2023 in O.A. 350/1381/2013 The Hon'ble Supreme Court further laid down the principles subject to which the Tribunal can exercise the power of review. In this regard, 'it is appropriate to refer para 28 of the said judgment which reads as under :-
"(i) The power of the Tribunal to review its order/decision under Section 22(3)() of the Act is akin/analogous to the power of a Civil Court under Section 114 read with Order 47 Rule I CPC. |
(ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule I and not otherwise.
(iii) The expression "any other suffi icient reason" appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds. a
(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 reviev. oo
(vi) A decision/order cannot be reviewed under Section 22(3)() on the basis of subsequent decision/judgment of a coordinate or larger Bench of the Tr, ibunal or of a superior Court;
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(vii) While considering an. application Yor » review, the tribunal must confine its adjudication witlt reference "to: mater ial which was available at the time of initial decision. fi lie' "happening of some subsequent event or . development cannot be "taken" note of for declaring the initial order/lecision as vitiated by an err 'or r apparent _ ™
(viii) Mere discover 'y of new or impor taiit matter or evidence is not suffi icient ground for review, The par. ty 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 pr oduced before the Court/Tribunal earlier."
6. In Union of India v/s Tarit Ranjan Das 2004 SCC (L&S) 160 the Hon'ble Supreme Court while dealing with the order passed in Review Application held in paragraph 13 as under:
"The Tribunal passed the impugned order by reviewing the earlier order. "A bare reading of the two orders shows that the order in review application was in complete variation and disregard of the earlier order and the strong as well as sound reason contained therein wher eby the original application was rejected. The scope for _review ts 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 and rehearing of the matter to. facilitate a change of opinion on merits, The Tribunal seems to have transgressed its jurisdiction in Sele
7. 5 R.A. 350/14/2023 in 0.A. 350/1381/2013 dealing with review petition as if it was hearing original application. This aspect has also not been noticed by the High Court."
Further, Hon'ble Apex Court in R.A.(Cri.) No.453 of 2012 [Writ Petition .
(Cr.) 135 of 2008 - Kamlesh Verma vs. Mayawati and Ors. decided
-0n08.08.2013] held as under:-
"(13) In a review petition, it is not open to the Court to re-appreciate the evidence and. reach a different conclusion, even if that is possible.
Conclusion arrived at on -appreciation of evidence cannot be assailed in a review petition unless it is shown that there is an error apparent ou the face of the record or for some reason akin thereto. T his Court, in Kerala State Electricity Board ys. Hitech Electr othermics & Hydropower Ltd. & Ors., (2005) 6 SCC 651, held as under:
"LO creceee In a review petition it is not open to this _ Court to re-appreciate the evidence and reach a different conclusion, even if that ts possible. Learned counsel for the. Board at best sought to impress us that the correspondence exchanged between the' parties did not suppert the conclusion reached by this Court. We are afraid such. 'a submission cannot be permitted to be aibvanced't ina. review petition. The appreciation of evident me "onideecord® is, Sully within the domain of the appellate court Ifo appreciation of the evidence pr pducéd the' 'court records a finding of fact and reaches a conclusion that conclusion cannot be assailed in.a review -petition unless it is shown that there is an error appar ent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any errer apparent on the face of the record. To perinit the review petitioner to argue on question of appreciation of evidence would amount to converting a review petition into an appeal in disguise. "
14) Review is not re-hearing of an 'original matter. The power of review cannot be confused with appellate power which enables a supertor court to correct all errors conunitted by a subordinate court. A repetition of old and overruled argument is not enough to re-open concluded adjudications. This Court, in Jain Studios Ltd. vs. Shin Satellite Public Co. Ltd., (2006) 5 SCC 501, held as under: _ "11, So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent ts right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, tio review petition would lie which would conyert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to
8. Hon'ble Apex Court held that:- : - ace 9, 6 R.A. 350/14/2023 in O.A. 350/1381/2013 correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded -adjudications. The power of review caw be 'exercised with extreme care, caution and circumspection and only in exceptional cases.
12, When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the saine relief cannot be sought by an indirect method by filing a review petition. 'Such petition, in my opinion, is in the nature of "second innings" which is impermissible and unwarranted and cannot be granted.
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15. 'Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVI Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that. an alternative view is possible under the review jurisdiction." ' ' " ety eb a ar' "9, 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 I 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. A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise".
(Emphasis added) In Parsion Devi & Ors..vs.'Sumitri-Devi &Ors., (1997) 8 SCC 715 the It-can be seen that Hon'ble Apex Court in catena of its judgment including the judgment as referred to hereinabove held that the existence of an error on the face of the record is. size qua non for review of an order. But it is not permissible for the Courts/Tribunal to hear the review application to act as an Appellate Vise 7 R.A. 350/14/2023 in O.A. 350/1381/2013 Authority in respect of the original order by a fresh hearing of the matter to facilitate a change of opinion on merits.
Further it is apt to mention that, the Hon'ble Apex Court also held that "review is not appeal i in disguise. . T. he power of review can be exercised for correction of a mistake but not to substitute a view."
The Hon'ble Apex Court also held that, "review is not appeal in disguise.. The power of review can be exercised for correction of a mistake but not to substitute a view." It is further observed by the Hon'ble Apex Court that, "it is wholly unjustified and: exhibits a tendency to rewrite a judgment by which the controversy has been finally decided." | Perry Kansagra Vs. Madan Kansagra (201) 20 SCC 753].
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10. By keeping in mind the dicyiin, laid, devin by the Hon'ble Apex: Court as & a4 re __ referred hereinabove, in the case' onan it is' noticed that this Tribunal vide order Loa 7 a 'ae dated 23.5.2023 in order dated 21, 07. Soar 'Whichyis under review had considered the provision of RBE No. 171/ 1993 ~gndthe-riecessity of assigning cogent reasons for withdrawal of first charge sheet and issuance of the second one by the Disciplinary Authority. Further it is noticed: that in order under review, this Tribunal has also taken note of the fact that there was no specific order regarding | withdrawal of the first charge sheet along, with reasons for it as well for issuance of . the second chargesheet by the Disciplinary Authority, which was required to be issued for issuance of the second chargesheet, in terms of RBE No. 1741/1993.
'Therefore, in absence of such order, the submission of the applicant (original respondents) that this Tribunal has not taken into consideration the provision of _RBE No. 171/1993 is not tenable.
Further, 'the internal communication dated .9.10.2006 annexed as Annexure RA/2 and letter dated 20.10.2006,;RA/2 to substantiate the prayer sought in this 8 R.A. 350/14/2023 in O.A. 350/1381/2013 R.A. was'not part of the material on record. To appreciate the submission of applicant in this regard, this Tribunal has again gone through the contention of the . respondents as referred in their reply to main O.A. and copy of it has been annexed to the present application as Arinexure RA/3 (but without annexure to the Original Reply) wherein at sub-para (i) of para 5 it has been stated as under:-
"(i) That the staff concerned.issued Char, gesheet in Form No. SF-5 dated 4.1.2006 and second Chargesheet dated 20.10.2006 and in the meantime the said staff. concerned has been performing his normal Railway duties continuously. A xerox copy of both the chargesheet dated 4.1.2006 and 20.10.2006 are collectively marked as Annexure R/9 to this reply."
11. It is apt to mention.that for satisfaction of this Tribunal on examination of Annexure R/9 as referred by the respondents in their reply to the O.A., it is noticed that only the copy of first chargesheet dated 4.1.2006 (page No. 28 to 35) and copy | of second chargesheet / memorandum dated 20.10.2006 (page No. 36 to 4}) of the said Annexure R/9 has been pr caudate respondents i in their reply only. The Ww * documents which have been proguced pie respgndents for the first time in 'the present R. A. was not part of the reply.
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12. As noted herein above, the scope for review is very limited and it is not permissible for the Tribunal while hearing the review application to act as an "appellate authority in respect of the original order by a fresh hearing of the matter to facilitate a change of opinion on merits, Bearing in mind the said principle as laid down by the Hon'ble Apex Court in various judgments' as referred to hereinabove, this Tribunal is of the considered view that the submission of Leamed Counsel for the review applicants if accepted; the same will amount to substitute the view already taken by this Tribunal in order under review.
13. Thus, the submission of the applicant, is not acceptable. It cannot be said that the finding recorded by this Tribunal in order under review is based on any misconception of fact. | Pp Z 9 R.A. 350/14/2023 in O.A. 350/1381/2013 .
Hence, This Tribunal, find that there appears no error apparent on the face of record justifying the exercise of power under sub-clause (f) of sub-section (3) of Section 22 of the Administrative Tribunals Act, 1985. |
14. In view of the above discussions and in the light of the law laid down by Hon'ble Apex Court (supra), the Review Application. deserves to be dismissed and accordingly, the same is dismissed. No costs.
<<, Bhairavia) ° Judicial Member _ sb