Tripura High Court
Sri Maran Sarkar vs The State Of Tripura on 13 January, 2017
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
REV. PET. No. 40 of 2016
Sri Maran Sarkar,
son of late Nani Gopal Sarkar,
resident of Vill: South Belonia (Vidyapith Tilla), P.O. & P.S. Belonia, South
Tripura
.........Petitioner
-VERSUS-
1. The State of Tripura,
Agartala (to be served upon the Chief Secretary to the Government of
Tripura)
2. The Secretary to the Government of Tripura,
Department of Scheduled Caste and OBCs Agartala
3. The Member Secretary,
State Level Scrutiny Committee, Director for Welfare of Scheduled Caste
and OBCs, Agartala, Pandit Nehru Complex, Gurkhabasti, Agartala
4. The Director General of Police,
Government of Tripura
5. The Inspector General of Police (Adm.),
Government of Tripura, Agartala
......Respondents
BEFORE THE HON'BLE THE CHIEF JUSTICE THE HON'BLE MR. JUSTICE S. TALAPATRA For the petitioner : Mr. A. K. Bhowmik, Sr. Advocate Mr. R. Dutta, Advocate For the respondents : None Date of hearing : 10.01.2017 Date of delivery of Judgment and order : 13.01.2017 Whether fit for reporting : YES Judgment and Order (Talapatra.J) This review petition arises from the judgment and order dated 10.06.2014, delivered in WP(C). No. 354 of 2009 whereby the writ petition filed by the review petitioner, questioning Rev. Pet. No. 40 of 2016 Page 1 of 7 the order of termination emerged from the finding of the State Level Scrutiny Committee holding that the petitioner does not belong to Mahishyadas community by the order dated 16.09.2009, which status the petitioner claimed for obtaining the Scheduled Caste certificate for getting the appointment as the Sub-Inspector of Police in 1989 has been dismissed. After inquiry through the vigilance officer and on affording one opportunity to the petitioner to rebut the result of the said inquiry, the State Level Scrutiny Committee came to the conclusion that the petitioner did not belong to Mahishyadas community rather he belongs to Kayasta community which is not recognized as Scheduled Caste in the State of Tripura by the Constitution (Scheduled Caste) Order, 1950. [2] In terms of the said order dated 16.09.2009, the petitioner had been terminated from his service by the PHQ Order No. 322 of 2009 dated 29.10.2009. Both the orders dated 16.09.2009 and 29.10.2009 were challenged in the writ petition being WP(C) No. 354 of 2009 which was dismissed by the said order dated 10.06.2014. The said order dated 10.06.2014 has been urged to be reviewed by this Court.
[3] The mainstay of this review petition has been adumbrated in Para-2 of this petition. For purpose of reference, the said Para-2 is reproduced hereunder:
"2. That at the time of consideration of the writ petition filed by the petitioner and on the date of delivery of judgment and order dated 10.06.2014, the detailed real picture relating to action taken against Rev. Pet. No. 40 of 2016 Page 2 of 7 persons who were found to have been under Government employment and whose SC/ST certificates were cancelled was not available. Subsequently in compliance to direction issued by this Hon'ble Court on 10.09.2014 in connection with WP(C). No. 323 of 2008, the Chief Secretary, Government of Tripura by an affidavit dated 10.11.2014 furnished information to the effect that 93 Scheduled Caste certificates were cancelled out of which 59 holders of such certificate were employees of the State Government and that only 15 employees were dismissed or terminated from service during last 10 years and further that 3 employees were dismissed or terminated from service during last 10 years and further that 3 employees who had surrendered their certificates were either reduced in rank or subjected to voluntary retirement and that 3 employees were reverted to lower post and one was subjected to reduction of pay scale to lower stage and in respect of others, court cases were pending. It is stated that along with the said affidavit, the Chief Secretary, Tripura submitted a statement relating to 93 persons against whom action was taken after cancellation of their false certificates. A copy of the said affidavit along with the aforesaid statement are annexed hereto and marked as Axhibit-2."
[4] It has been further asserted that this Court in a series of decisions delivered in the year 2015, after the judgment and order dated 10.06.2014 was passed, granted reliefs by interfering with the orders of termination on the ground of discrimination in passing the punitive order. For assertion of the said fact, the petitioner has laid relevant materials.
[5] Mr. A. K. Bhowmik, learned senior counsel appearing for the petitioner has in view of the subsequent decisions of this Court in resembling the matters, urged that the conclusion as recorded in the judgment and order dated 10.06.2014 is required to be revisited and reviewed by interfering with the order of termination of the petitioner. It has been observed in Para-22 of the said judgment and order dated 10.06.2014 as follows:
"22. What has been contended for the petitioner that some persons were not given the order of termination even when it had been proved that they had Rev. Pet. No. 40 of 2016 Page 3 of 7 obtained status certificate by misrepresentation of fact. Annexure-A to the additional rejoinder does not help us to arrive at a finding that the respondents were not uniform while passing the impugned order of termination inasmuch as there is no pleading in respect of in what context and why those persons, who were not terminated, where grante3d leniency. That apart, we find from Annexure-A to the additional rejoinder that a good number of persons have been terminated after the State Level Scrutiny Committee cancelled and confiscated their stats certificate."
[6] It is pertinent that the plea now raised had been taken care of and that was determinatively discarded. What Mr. Bhowmik, learned senior counsel has submitted is that for purpose of uniformity in the judicial action, this Court may invoke its review jurisdiction and interfere with the said judgment and order. [7] We are not impressed by the said submission inasmuch as the essential elements for exercising review jurisdiction are conspicuously absent in the present action. [8] The Apex Court in Haridas Das v. Usha Rani Banik (Smt.) and Ors reported in (2006) 4 SCC 78 has held as under:
"In order to appreciate the scope of a review, Section 114 of the CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the Court since it merely states that it "may make such order thereon as it thinks fit." The parameters are prescribed in Order XLVII of the CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the explanation to Rule 1 of the Order XLVII which states that the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise Rev. Pet. No. 40 of 2016 Page 4 of 7 the power to review its order with the greatest circumspection. This Court in Thungabhadra Industries Ltd. v. Govt. of A.P. held as follows:
"There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by "error apparent". A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out."
[Emphasis added] [9] Further, in State of West Bengal and Ors. V. Kamal Sengupta and Anr, reported in (2008) 8 SCC 612, the Apex Court had occasion to observe as under:
"21. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justiciae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court earlier.
22. The term `mistake or error apparent' by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self- evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the Court/Tribunal on a point of fact or law. In any case, while exercising the power of review, the Court/Tribunal concerned cannot sit in appeal over its judgment/decision.
35. The principles which can be culled out from the above noted judgments are :
(i) The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a Civil Court under Section 114 read with Order 47 Rule 1 of CPC.Rev. Pet. No. 40 of 2016 Page 5 of 7
(ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise.
(iii) The expression "any other sufficient reason"
appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds.
(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 review.
(vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a coordinate or larger bench of the Tribunal or of a superior Court.
(vii) While considering an application for review, the Tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.
(viii) Mere discovery of new or important matter or evidence is not sufficient ground for review. The party 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 produced before the Court/Tribunal earlier.
[Emphasis added] [10] In S. Bagirathi Ammal v. Palani Roman Catholic Mission, reported in (2009) 10 SCC 464, the Apex Court has, in order to dispel any sort of ambiguity, observed as under:
"12. An error contemplated under the Rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the Court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the applicant, in such circumstances, the review will lie. Under the guise of review, the parties are not entitled to re-hearing of the same issue but the issue can be decided just by a perusal of the records and if it is manifest can be set right by reviewing the order. With this background, let us analyze the impugned judgment of Rev. Pet. No. 40 of 2016 Page 6 of 7 the High Court and find out whether it satisfy any of the tests formulated above.
26. As held earlier, if the judgment/order is vitiated by an apparent error or it is a palpable wrong and if the error is self evident, review is permissible and in this case the High Court has rightly applied the said principles as provided under Order 47 Rule 1 C.P.C. In view of the same, we are unable to accept the arguments of learned senior counsel appearing for the appellant, on the other hand, we are in entire agreement with the view expressed by the High Court."
[Emphasis added] [11] In view of those principles, we are of the considered opinion that this review petition is devoid of any substance and accordingly it is dismissed. There shall be no order as to costs.
JUDGE CHIEF JUSTICE
A.Ghosh
Rev. Pet. No. 40 of 2016
Page 7 of 7