Central Administrative Tribunal - Delhi
Mrs. Manorama Bhatnagar vs Govt. Of Nct Delhi Through on 30 October, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
R.A. No.148/2012
In
O.A. No. 3479/2012
Reserved on:11.10.2013
Pronounced:30.10.2013
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
1. Mrs. Manorama Bhatnagar,
W/o Sh. S.K. Bhatnagar,
R/o S-487, School Block,
Shakarpur, Delhi-92.
2. Mrs. Kailash Rani,
W/o sh. Babu Ram,
R/o B-1/119, Paschim Vihar,
New Delhi-63.
3. Sh. Gauri Shanker Sharma,
S/o Sh. Balkrishan Sharma,
R/o 201/25F, Krishna Gali No.7,
Maujpur, Delhi-55.
4. Sh. Bhanwer Singh Sharma,
S/o Sh. Kalu Ram Sharma,
R/o C-9/164, Yamuna Vihar,
Delhi-53.
5. Sh. B.P. Tyagi,
S/o late Sh. Jaswant Singh,
R/o V-655, Gali No.10,
Vijay Park, Maujpur,
Delhi-53.
6. Sh. Bijan Pal Tyagi,
S/o Sh. Girvar Singh,
R/o B-58, Kitar Nagar, Gali No.18,
Parwana Road, Delhi-51.
7. Sh. Ram Pal Singh Panu,
S/o Sh. Dalip Singh,
R/o C-15/4, Arjun Mohalla,
Gali No.7, Maujpur,
Delhi-53. ..Review Applicants
(By Advocate: Sh. D.R. Gupta)
Versus
1. Govt. of NCT Delhi through
its Chief Secretary,
Players Building, I.P. Estate,
New Delhi-2.
2. Directorate of Education,
Govt. of NCT of Delhi,
Old Secretariat, Rajpur Road,
Delhi-54.
3. Dy. Directors of Education
Concerned under Director of Education,
Govt. of NCT of Delhi,
Old Secretariat, Rajpur Road,
Delhi-54. ...... Respondents
(By Advocate: Mr. N.K. Singh for Mrs. Avnish Ahlawat)
O R D E R
G. George Paracken, Member (J) Applicants in OA No.3479/2011 have filed this Review Application. They were Vice-Principals in different schools of the Respondent-Department and worked as Heads of the Office/Heads of the Schools at different times till their retirement. Their claim was for the grant of pay scale attached to the post of Principal on the strength of the order of this Tribunal dated 06.11.2009 in OA-1166/2009 - S.C. Gupta & Ors. Vs. Govt. of NCT of Delhi. The Respondent-Department challenged the aforesaid order before the Honble High Court of Delhi vide Writ Petition (C) No. 724/2010 but it was dismissed on 06.09.2010. The said order was also challenged before the Apex Court vide SLP No. 35338/2010 and it was also dismissed. Applicants have stated that they are similarly placed and, therefore, claimed the same benefits. However, this Tribunal dismissed it, vide order dated 21.02.2012 on the ground of delay and laches. The relevant part of the said order reads as under:-
2. The applicants are claiming themselves to be similarly circumstanced employees who had discharged the duties of the Head of the Office/Head of the School at different periods before their retirement and are claiming similar benefits. The applicants have also filed an application for condonation of delay.
3. Learned counsel for the respondents drew our attention to the averments made by the respondents in paragraph-3 relating to para-wise reply which has set forth the delay in filing the application. Applicant No.1 (Mrs. Manorama Bhatnagar) was allowed to work as Head of the School on 15.10.2002, she retired on 31.10.2008 and has filed this application after more than 10 years; Applicant No.2 (Mrs. Kailash Rani) was allowed to work as Head of the School on 04.08.2005, she retired on 31.12.2007 and has filed this application after seven years; applicant No.3 (Mr. G.S. Sharma) was allowed to work as Head of the School on 27.07.2001, he retired on 02.07.2006 and has filed this application after 11 years; applicant No. 4 (Mr. Bhanwar Singh Sharma) was allowed to work as Head of the School on 01.09.2006, he retired on 31.12.2010 and has filed this application after 6 years; applicant No.5 (Mr. B.P. Tyagi) was allowed to work as Head of the School from 01.10.2007 to 03.07.2001 and has filed this application after 15 years; applicant No.6 (Sh. Vigyanpal Tyagi) was allowed to work as Head of the School on 03.08.2004, he retired on 31.03.2005 and has filed this application after 8 years; applicant No.7 (Sh. Rampal Singh) who was allowed to work as Head of the School on 01.01.996, he retired on 30.06.1997 and has filed this application after 16 years. The delay has been computed from the dates of their working as Head of the Office/School.
4. Learned counsel for the respondents raises the preliminary objection of limitation, as according to her, all these applications suffer from undue delay and laches in preferring claims. Therefore, it should be dismissed as not maintainable on that account.
5. Learned counsel for the applicants cites the following cases of the Honble Supreme Court in support of his contention that delay should be condoned:-
(i) K.C. Sharma & Ors. Vs. U.O.I. & Ors., (1997) 6 SCC 721.
(ii) U.O.I. & Ors. Vs. Shantiranjan Sarkar, (2009) 3 SCC 90.
(iii) State of Madhya Pradesh and Ors. Vs. Yogendra Shrivastava, (2010) 12 SCC 538.
5.1 The case of K.C. Sharma (supra) was in respect of a notification of Railway Board which was given retrospective effect adversely affecting the pensions of many retired employees. This notification was held to be invalid by the Tribunal. Those who filed later claiming the benefits of this judgment were given the relief by the Honble Supreme Court on the ground that in the facts and circumstances of that case their OAs should not have been rejected on limitation ground. Suffice it to say that the facts are distinguishable. It related to validity of a particular notification which was given retrospective effect. Once the validity was set aside naturally all the pensioners were entitled to the benefits.
5.2 The case of Shantiranjan Sarkar (supra) related to grant of benefits as applicable to members of the scheduled caste (SC) for the purpose of reservation in Central Government services. It was a case in which the advertisement for recruitment did not erroneously mention the vacancies meant for SC candidates and the Apex Court held that the Government could not be allowed to take advantage of its wrong. Therefore, in the peculiar circumstances of the case, it was also held that any delay in filing the O.A. should not be treated as a bar for granting an equitable relief in view of the fact that the State Government as a benevolent litigant could not be permitted to take advantage of its own wrong. Besides, in this case there was suppression of material facts on the basis of which the Writ Petition deserved to be allowed.
5.3 The case of Yogendra Shrivastava (supra) related to the wrong interpretation about the quantum of Non Practicing Allowance (NPA) which is admissible to a Government Doctor. It was held that 25% of the basic pay would constitute NPA. The basic pay would mean the revised pay and not the initial minimum pay. It was also held that the benefits which had accrued to the doctors could not be taken away retrospectively by means of an amendment. In this context, it was held that denial of a legitimate benefit could not be supported on the principle of limitation as the denial led to a continuing wrong.
6. Learned counsel for the respondents cited the decision of the Honble Supreme Court in the case of U.O.I. & Ors. Vs. M.K. Sarkar, (2010)2 SCC 59 to contend that by merely giving representation will not give any fresh cause of action to the petitioner and the limitation has to be considered from the original cause of action. In this case an employee sought the benefit of regular pension as opposed to CPF Scheme involving a long delay after his retirement. It was held in the facts and circumstances of this case that the cause was not one of recurring nature as to condone the delay. In the case of D.C.S. Negi Vs. U.O.I. & Ors., [SLP (Civil) No. 7956/2011 decided on 07.03.2011] the Apex Court specifically enjoined the Tribunals to look into the issue of limitation and admit only such applications as are filed within the prescribed period or where sufficient cause is shown for not doing so.
7. There is no doubt about inordinate delay involved in raising claims of different applicants in this case. In the case of Ram Pal Singh, it is long as 16 years, in the case of B.P. Tyagi, it is 15 years and in other cases it ranges from 6 to 11 years from the dates the original cause action arose. The only explanation which has been given is that the applicants came to know about the validity of their claim only after OA-1166/2009 was decided in favour of similarly circumstanced employees.
8. Learned counsel for respondents also cites the decision of the Honble Supreme Court in the case of Surendra Nath Pandey and Ors. Vs. Uttar Pradesh Cooperative Banck Limited and Anr., (2010)12 SCC 400 to contend that the mere fact of similarly placed employees have been conferred with some benefits through the decision of the Court would not imply that similar claims could not be resisted.
9. The Honble High Court of Delhi while dealing with CM No. 9122/2010 in WP(C)-4257/2010 made the following observations in respect of those who did not assert their right at the right time:-
8. The applicants of CM No. 9122/2010 were also in the list of 945 candidates called for interview but were not in the final select list. It is apparent that they chose to sit by, and accept their fate. They never took recourse to legal remedies. They seek to reap the harvest of the labour put in by somebody else.
9. It is settled law that law does not come to the rescue of those who sleep and do not assert their rights at the right time.
10. From the facts noted herein above, it is apparent that the offending act of the petitioner came to light in the month of April 2009 when the select list was finally published and as respondents of WP(C) No. 4255/2010, WP (C) No. 4256/2010 and WP(C) No. 4257/2010 promptly asserted their rights in the month of May 2009, the applicants did not do so. 9.1 Learned counsel for respondents also draws our attention to the observations made in paragraph-29 of the decision of the Honble Supreme Court in the case of Shiba Shankar Mohapatra and Ors. Vs. State of Orissa and Ors., (2010)12 SCC 471, which reads as under:-
29. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the laches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum. (vide Aflatoon & Ors. vs. Lt. Governor, Delhi & Ors. AIR 1974 SC 2077; State of Mysore vs. V.K. Kangan & Ors., AIR 1975 SC 2190; Municipal Council, Ahmednagar & Anr. vs Shah Hyder Beig & Ors., AIR 2000 SC 671; Inder Jit Gupta vs. Union of India & Ors. (2001) 6 SCC 637; Shiv Dass vs. Union of India & Ors., AIR 2007 SC 1330; Regional Manager, A.P.SRTC vs. N. Satyanarayana & Ors. (2008) 1 SCC 210; and City and Industrial Development Corporation vs. Dosu Aardeshir Bhiwandiwala & Ors. (2009) 1 SCC 168).
10. No doubt the applicants are placing reliance on a specific relief granted by this Tribunal in respect of similarly placed employees in OA-1166/2009. But the same Tribunal in OA-517/2011 decided on 08.02.2012 considered the claim of the applicant therein for grant of salary attached to the higher post of Assistant Commissioner/Deputy Director of Revenue which had been discharging duties on current duty charge and held as under:-
8. Admittedly, the fact is that applicant has accepted the offer of his appointment on current duty charge in the post of Assistant Commissioner, the order of CDC inter alia has one of the conditions that the entrustment of current duty charge shall be in his own pay scale of the post he is holding. Once the applicant has accepted the offer of appointment to work on CDC in the said post for a short period, he cannot claim the salary of the said post. It is also noticed that he on promotion as the Assistant Commissioner has issued the appointment letters to nine such officers who have been put in current duty charge as late as July, 2011. This indicates that DJB has been following the practice for temporary/ stop gap arrangement of current duty charge of a higher post. The current duty charge is not additional charge. The applicant on CDC got the pay of his previous post and discharged the function of the CDC post. Therefore, the FR 49 would not be applicable as the applicant was not holding dual charges but was only holding one charge of a higher post with current duty charge. We have also perused the judgment of Honble Supreme Court in Surendra Nath Pandeys case (supra). The relevant part of the judgment reads as follows :-
9. We are of the view that the real issue is whether persons employed on stop gap or ad hoc basis were entitled to the benefit of pay scales with increments during the period of service on daily or stop-gap or ad hoc basis. Unless the appellants are able to establish that either under the contract, or applicable rules, or settled principles of service jurisprudence, they are entitled to the benefit of pay scale with increments during the period of their stop-gap/ad-hoc service, it cannot be said the appellants have the right to claim the benefit of pay scales with increments.
10. Admittedly, the appellants do not claim the said relief on the basis of any rules or contract. This Court in a series of decisions [See for example -- State of Haryana vs. Jasmer Singh- 1996(11) SCC 77 and State of Haryana vs. Tilak Raj - 2003 (6) SCC 123], has held that the daily wage or ad hoc employees were not entitled to the benefit of regular pay scales with increments, by claiming parity with regular employees. Therefore, it is clear that the appellants did not have a right to claim the said relief.
9. Thus, the above judgment indicates that when the persons are employed as a stop gap or temporary arrangement, they will be entitled to the benefits of pay scales with increments during the period of service on daily or stop gap or ad hoc basis only if they are able to establish that either in the contract or applicable rules, or settled principles of service jurisprudence are entitled to the benefits of pay scales with increments during the period of their stop gap arrangements. As per the Rules of DJB, current duty charge does not grant the higher pay scales and the order issued for current charge does not permit pay scale of higher post. But the, promotion on adhoc basis to the said post, as per DJB order grants him the pay scales for the post of Assistant Commissioner. The respondents exactly have done the same. This issue was also considered by the Honble High Court of Delhi in the case of Govt. of NCT of Delhi Vs. Prem Prakash, 124(2005)DLT 10 DB. After going through the case law on the subject, the Honble High Court held that the ruling of the Honble Supreme Court would apply and the claim for higher pay would not be admissible when an employee is asked only to look after the duties of a higher post. Honble High Court held as under:-
7. In our considered opinion, the ratio of the aforesaid decision (Mohd. Swaleh Vs. UOI & Ors., 1998(1)SLJ 1) is squarely applicable to the facts of the present case as in the present case the appointment is made by the Principal, who is not an competent authority to make such an appointment. Similar is the case of the Supreme Court in State of Haryana v. R.K. Aggarwal, reported in 1997(4)SLR 733. In the said case also the Supreme Court was examining the case where the respondent R.K. Aggarwal was assigned to hold the current duty charge first, as Chief Engineer and thereafter as the Engineer-in-Chief. It was held by the Supreme Court that since substantive promotion was not given to the respondent during the impugned period because of pending litigation, therefore, he is not entitled to claim any salary of the promotional post that is held on current duty charge.
11. As regards application of the principle of quantum meruit to Service Law, the Honble Supreme Court of India in Mohd. Swaleh vs. UOI&Ors., 1998(1) SLJ 1 made the following observations:-
23.For the aforesaid reasons we are of the view that the condition mentioned in Appendix 3 to the F.R. wherein the Central government has delegated powers under Rule 49 to the Head of the Department namely that the Head of the Department must have been authorised to make appointment to the higher post, is not satisfied in the facts of this case inasmuch as the power to appoint a Registrar has not separately been delegated to the Chairman or Vice-chairman of the Central Administrative Tribunal. Hence the Additional remuneration cannot be granted as claimed.
24. Learned counsel for the appellant made a submission that the principle of quantum merit would apply to the facts of the case and relied upon the decision of the Supreme Court in State of West Bengal Vs. B.K. Mondal & Sons [AIR 1962 SC 779]. in that case it was held that though the contract for certain work was not executed as per the provision of Section 175(3) or the Government of India Act still compensation could be paid under Section 70 of the Contract Act. In our view the said decision which is based on Section 70 of the Contract Act is not applicable to the present situation where the field is governed by specific statutory rules namely Rule 40 of the Fundamental Rules. In this case, the Honble Supreme Court was dealing with the claim of Deputy Registrar of Central Administrative Tribunal who was permitted to hold the charge of the office of Registrar for grant of the pay scale attached to the post of Registrar. After examining the legality of the issue, the Honble Supreme Court held that since the applicant therein had not been appointed by the appointing authority on the post of Registrar and there was no promotion to that post, his claim for higher pay could not be allowed. It also held that any delegation of financial powers to functionary does not necessarily involve payment of additional remuneration. The case has to be examined only in terms of Rule-49 of Fundamental Rules. It is only when the appropriate appointing authority appoints either in officiating capacity or by way of regular promotion that the salary attached to the higher post would be admissible not otherwise. After examining the law on the subject, the claim of the applicant was rejected.
12. It is not the case of the applicant that they were promoted to the post of Principal or appointed on officiating basis to that post by the Appointing Authority and had the right to the higher pay scale on the basis of their promotion either on ad hoc or regular or officiating basis. Nor did the stop gap orders declaring them as Heads of School were made by the appointing authority, conferring on them the position of Principal. Neither is it their case that their juniors have been given this promotion to the exclusion of their rightful claim for the promotional post. They are seeking this benefit only on the strength of discharging the duty of the Head of the School/Head of the Office although their substantive capacity was that of Vice-Principal. In the peculiar facts and circumstances of the case, if such claims will be maintained long after the original cause of action had arisen, it would open a Pandoras box for similar claims to be made by many others. Further, the possibility of seniors raising claim of equal pay cannot be ruled out if the claims of junior employees are allowed after lapse of so many years without examining the issue of limitation.
13. In view of the foregoing discussion, we feel that the claims suffer from delay and laches and the application for condonation of delay cannot be allowed in the absence of satisfactory explanation why the applicants did not raise the claim at the appropriate time. In the circumstances, the O.A. is dismissed on the ground of limitation. No costs.
2. The contention of the Review Applicants is that this Tribunal omitted to consider the pleadings and material brought on record by them in their rejoinder specially the reply to the preliminary submissions of the Respondents in their reply. According to them, being part of the pleadings, they should not have been ignored by this Tribunal while dismissing the OA. The said part of the rejoinder is as under:-
It is submitted that there is no merit in the contentions of the Respondents that the Application is barred by limitation. It has been held by the Constitution Bench judgment in case of K.C. Sharma and Others Vs. U.O.I. & Others 1997 (6) SCC 721 that the application filed by similarly placed persons should not be rejected on the ground of limitation. In other case reported in G.P. Ceramics Pvt. Ltd. Vs. Commissioner, Trade Tax, U.P. 2009 (3) SCC 90 wherein it has been held that where there is a lapse on the part of the Department, as in the present case, they should not be permitted to raise the plea of limitation. The matter has been recently considered by this Tribunal in OA No. 3937/2011 vide its order dated 03.11.2011 in the matter of K.C. Chauhan and Others Vs. Government of NCT of Delhi and Others which is an identical case to that of the present Applicants wherein also of limitation was raised but the same was rejected.
The Honble Tribunal has opined that it is trite when a decision of a court attains finality it must not only be respected but should be enforced and implemented evenly and without discrimination in respect of all the employees who are entitled to the benefits who are entitled to the benefits which has been allowed to employees on the basis of the orders obtained through Courts. In this connection reliance has been placed on the observation of the Apex Court in Inder Pal Yadav S. U.O.I. 1985 (2) SCC 648 wherein it has been held that . those who could not come to the court need not be at a comparative disadvantage to those who rushed in here, if they are otherwise similarly situated, they are entitled to similar treatment, if not by anyone else at the hands of the Court.. In view of this, the Applicants are entitled to the relief prayed in the main OA.
The Tribunal did not accept the plea of the Respondents that the Applicants should be denied this benefit by stating that they did not take up the issue at the relevant point of time, therefore, limitation would apply. The Applicants being similarly situated to the Applicants in OA 3164/2010 (Supra) are entitled to the same relief as has been given by the Respondents to them pursuant to the direction given by the Tribunal in the aforesaid OA. They have also stated that the Tribunal vide order dated 3.11.2011 in OA No.3937/2011 concluded that the matter herein is indeed covered by the decision of this Tribunal in OA No. 1166/2009 in the matter of S.C. Gupta an Others Vs. Govt. of NCT of Delhi and Others decided on 06.10.2009 which was confirmed by the High Court in W.P. ( C) No.724/2010 on 06.09.2010 as upheld by the Apex Court vide order dated 05.01.2011 passed in Special Leave to Appeal (Civil) No.724/2010. For parity of reasons given by the Honble Tribunal in S.C. Guptas case (supra), this OA was allowed in the same terms. Therefore, the Applicants being similarly situated to the applicants in the aforesaid OAs are entitled to the same relief as has been given by the Respondents to the Applicants in the aforesaid OAs. A copy of each of aforesaid orders dated 27.09.2011 in OA 3614/2010 in the matter of R.P. Chauhan and Others Vs. Government of NCT of Delhi and Others and order dated 03.11.2011 in OA No.3937/2011 in the matter of Shri K.S. Chauhan and Others Vs. Government of NCT of Delhi and Others by two other Benches of the Tribunal is annexed hereto and marked as collectively as A-1.
3. In this regard, the learned counsel for the Review Applicants has relied upon the judgment of the Apex Court in K.L. Nanda Kumaran Nair Vs. K.I.Phillips 2001 (8) SCC 537 wherein it has been held as under:-
3. At any rate, the Tribunal should have allowed the review when it was pointed out that mark-sheets and tabulation sheets were available and a statement to that effect had already been made in the counter-affidavit. Genesis of the problem appears to be the order made by the Tribunal while disposing of O.A. No. 1308/93. In the affidavit of S. K. Shangari to which we have adverted to earlier, it was stated that notes prepared at the time of practical test were destroyed soon after the entries in the minutes of the tabulation sheets were made, but then Tribunal, however, felt that the entire records have been destroyed while it is not so. What was destroyed was only the notes and not the entries made in the minutes and tabulation sheet, which would indicate the necessary marks obtained by each of the candidates. When these facts were brought to the notice of the Tribunal and which facts have been averred in the counter-affidavit, there was no fresh attempt on their part to produce any new evidence which was not referred earlier and it is a case where the Tribunal totally ignored the pleadings and shut its eyes to the material available. In the circumstances, review should have been allowed.
4. In that view of the matter we set aside the order of the Tribunal, both in the review application and the original application, setting aside the earlier order made by the Tribunal in O.A. No. 418/94. The order made in O.A. No. 771/93 is restored. The appeals are allowed accordingly. No costs.
4. The learned counsel for the Review Applicants has also stated in the aforesaid order, this Tribunal has not taken into consideration of the fact that another coordinate bench of this Tribunal allowed OA No.3164/2010 vide order dated 27.09.2011 R.P. Chauhan and Others Vs. Government of NCT of Delhi and Others and OA No.3973/2011 vide order dated 03.11.2011 Shri K.C. Chauhan and Others Vs. Government of NCT and Others in parity with reasons given in OA No.1166/2009 - S.C. Gupta and Others Vs. Government of NCT of Delhi and Others decided on 06.10.2009 as confirmed by the Honble High Court of Delhi in Writ Petition( Civil) No.724/2010 decided on 06.09.2010 and also by the Apex Court vide order dated 05.01.2011. The Respondent-Department has complied with the aforesaid directions of this Tribunal but denied the same to other similarly situated persons who worked as Head of Office/Head of School in different Senior Secondary School in the Director of Education which tantamount to invidious discrimination which is violative of Article 14 of the Constitution. To avoid litigation the Supreme Court has laid down that the judgment is made in rem as in the present case, the person similarly situated be given the same benefit by the Government to the affected parties without insisting on litigation which results in avoidable public expense and wastage of public time with no gain to anybody in the matter.
5. Further, according to the learned counsel for the Review Applicants, the Respondent-Department has implemented the order in respect of some of the Applicants and denied the same in the case of some others who are similarly situated which tantamount to invidious discrimination which is violative of Article 14 of the Constitution of India. He has also submitted that such discriminatory attitude on the part of the Respondents is in violation of law laid down by the Apex Court in the case of Inder Pal Yadav Vs. Union of India 1985 (2) SCC 648 wherein it has been held that a person similarly situated should be given the same benefits by the Government without insisting them to file litigation which results in avoidable public expense and wastage of public time with no gain to anybody in the matter. He has also stated that in such cases the remedy available to the parties is to file Review Application as held by the Apex Court in K.G. Derasari Vs. Union of India 2001 (10) SCC 496. The learned counsel for the Review Applicants has also relied upon the judgment of the Apex Court in the case of K.C. Sharma and Others Vs. U.O.I. & Others 1997 (6) SCC 721 wherein it has been held that delay in filing the Application should have been condoned by the Tribunal and the Applicants should have been given the relief on the same terms as was granted by the Full Bench.
6. Notice in this case was issued to the Respondents way back on 10.05.2012. Thereafter, a number of opportunities were given to them to file their reply. Accordingly, this case was adjourned to 19.07.2012, 23.08.2012, 27.09.2012, 28.09.2012, 22.11.2012, 06.12.2012, 14.01.2013, 21.01.2013, 28.02.2013, 10.05.2013, 01.07.2013, 18.07.2013, 23.08.2013 and 30.08.2013. On all these occasions Respondents have been seeking adjournment to enable them to file reply. Even though last opportunity was also given to them to file their reply on 30.08.2013 but no rely has been filed. However, the learned counsel for the Respondents has submitted that it is not necessary to file a reply and he would argue the case on the basis of documents filed by the Review Applicants. In this regard he has invited our attention to para 7 and 12 of the order of this Tribunal under review and stated that the reason why the OA was dismissed for delay and laches and the same has been clearly spelt out there. Therefore, there are no errors apparent on the face of record. No review could have been filed in this case.
7. We have heard the learned counsel for the Review Applicants Shri D.R. Gupta and the learned counsel for the Respondents Shri N.K. Singh for Mrs. Avnish Ahlawat. 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..
8. In the present case, we do not find any such eventualities to review the aforesaid order dated 21.03.2012. As rightly stated by the learned counsel for the Respondents, this Tribunal has dismissed the OA on the ground of delay and laches. The order also contains detailed reasoning given by this Tribunal while dismissing the same. We, therefore, do not find any error apparent on the face of the record. 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"."
9. 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 as under:-
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.
10. In view of the above contention, this Review Application is devoid of any merit and it is dismissed accordingly. No order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh