Central Administrative Tribunal - Cuttack
Rabindranath Sahoo vs D/O Post on 2 January, 2024
1 R.A.No. 260/0029 of 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
R.A.No. 260/0029 of 2019
(Arising out of OA698/2012)
Reserved on : 15.12.2023 Pronounced on: 02.12.2024
CORAM:
HON'BLE MR. PRAMOD KUMAR DAS, MEMBER (A)
HON'BLE MR. RAJNISH KUMAR RAI, MEMBER (J)
Rabindranath Sahoo & Ors......Review Applicants
Vrs.
Union of India & Ors. .....Review Respondents
For the Applicant : Mr. D.P.Dhalsamant, Counsel
For the Respondents : Mr. B.R.Swain, Counsel
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
The applicants have filed this Review Application on 30.08.2019 with the following prayers:
"...to review the order dated 31.07.2019 passed in OA No. 698/2012.
And further be pleased to protect the TRCA of the applicants @ of Rs. 1740-30-2640 on pre-revised TRCA as on 31.12.2005 and fixed TRCA as on 01.01.2006 @ Rs. 4220-75-6470.2 R.A.No. 260/0029 of 2019
And further be pleased to pass any order.............."
2. Respondents filed their counter contesting and objecting both on the maintainability as well as on merit of the RA.
3. Heard. Perused the records.
4. It is seen that the applicants filed OA No. 698/2012 with the prayer as under:
"In view of the facts stated above, it is humbly prayed that Hon'ble Tribunal may kindly be pleased to direct the respondents not to make any recovery and refund the amount already recovered with 18% interest and protect the TRCA of applicants and impose exemplary cost & compensation.
And any other order(s) as the Hon'ble Tribunal deems just and proper in the interest of justice.
And for this act of kindness, the petitioner a in duty bound shall remain ever pray."
5. The respondents filed their counter contesting the stand and prayer made in the OA. However, after hearing and upon perusal of the record, the Division Bench of this Tribunal disposed of the OA on 31.07.2019. The relevant portion of the order is extracted below:
"12. The applicant's counsel has cited the order dated 6.12.2016 passed in OA No. 559/2015. In this case the 3 R.A.No. 260/0029 of 2019 excess payment towards TRCA was recovered by the authority after assessment of the work load of the concerned GDSs. As the order dated 6.12.2016 has noted, in that case, no notice was served on the applicants before recovery was made and it was alleged by the applicants that the over payment was calculated based on some "bogus work load statement" behind the back of the applicant. In this case, the subsequent "work load statement" was assessed and it was clarified by the respondents that reduction of TRCA was done by mistake. Following observations are made in order dated 6.12.2016 of this Tribunal :
"8. It is further admitted by respondent No.4 that in the case of the applicant, the TRCA slab was inadvertently fixed in the first slab Rs.33360- 605130 for workload up to 3 hours 45 minutes instead of the slab of Rs.4220-756470 for workload of more than 3 hours 45 minutes. 9. With the assistance of respondent No.4, therefore, it has been clarified to the Tribunal that applicant is entitled to TRCA of Rs.4220-75-6470 as per his workload. The earlier stand of the respondents is admitted as an inadvertent error. There is no further dispute about the issue. The applicant in the OA had also submitted that he is a low paid employee, and according to the judgment of the Hon'ble Apex Court in the case of State of Punjab and Ors. -vs- Rafiq Masih etc., recovery is impermissible from employees belonging to Class III and Class IV. The respondents in the counter, have also admitted this position and indicated that in the light of the decision of Hon'ble Apex Court, action has been taken to stop recovery of excess paid TRCA of the Gramin Dak Sevaks with immediate effect pending formal approval of competent authority."4 R.A.No. 260/0029 of 2019
From above, it is clear that the decision in the cited OA No. 559/2015 will not apply to the present case, which is factually distinguishable.
13. In view of the above discussions, the matter is remitted back to the respondent No.2 for consideration of the case of the applicants on the basis of the work load and if there is reduction of the work load which will affect the TRCA payable to the applicant, then the same needs to be communicated to the concerned applicant in a show cause notice along with the details of excess payment if made to him and if recovery of the excess payment is proposed from the applicants. After receiving the reply/representation of the applicant, the respondent No.2 will take appropriate decision in the matter taking into account the applicability of the reduced work load, if any, retrospectively w.e.f. 1.1.2006 in accordance with the provisions of law. Further, if it is decided by the respondent No.2 that the applicants are not liable to refund any amount, then the amount already received from the applicants is to be refunded to the applicants within one month from the date of such decision.
14. The OA is accordingly disposed of. There will be no order as to cost."
6. According to the Ld. Counsel for the applicant, the Division Bench of the Tribunal disposed of the OA without taking into consideration the submissions made in his written note of submission filed on 17.07.2019 wherein it was specifically stated that the new TRCA or revised TRCA came into force w.e.f. 01.01.2006 pursuant to Government of India, Department of Posts letter dated 09.10.2009 wherein at 2.1 & 2.2 providing therein that TRCA in respect of GDS engaged up to 31.12.2005 5 R.A.No. 260/0029 of 2019 shall be fixed in corresponding stage w.e.f. 01.01.2006 in the respective TRCA slab. The fitment working as on 31.12.2005 has been mentioned in 2.2 wherein the pre-revised TRCA of Rs. 1740-30-2640 was revised to Rs.4220-75-6470. Since all the applicants as on 31.12.2005 were getting TRCA @ Rs.1740- 30-2640 in the pre-revised TRCA, hence their fitment should have been fixed in the Revised TRCA w.e.f 01.01.2006 @ of Rs 4220-75-6470, thus, non-consideration of his written notes of argument amounts to an error apparent on the face of the record. Further, according to the applicant, the Tribunal erred in fact and law by not taking the order dated 11.12.2015 passed by the respondent no.3 in a similar situated person wherein recovery was stopped from TRCA of GDS pending approval of the competent authority in the light of the judgment by the Hon'ble Supreme Court of India in Civil Appeal Case No.11527 of 2014 which was enclosed in the written notes of submission filed by the applicants. Hence, the order dated 31.07.2019 is liable to be reviewed. In support of his stand, Ld Counsel for the applint has relied on the decision of the Hon'ble Apex court in the cases of State of Jammu & Kashmir Vs. R.K.Zalpuri & Ors, 2016(2) SCC (L&S) 228, 6 R.A.No. 260/0029 of 2019 Rajendra Singh Vs. Lt. Governor Andaman & Nicobar Island, 2006 AIR SC 75, and State of Punjab Vs. Rafiq Masih, 2015 (2) SCC (L&S) 33.
7. The above submission of the Ld. Counsel for the applicant was contested by the Ld. Counsel for the respondents.
8. We have considered the submissions of the parties. 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". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise". The above observation is fortified by the decision of the Hon'ble Apex Court in the case of State of West Bengal v. Kamal Sengupta, (2008) 8 SCC 612, wherein the Hon'ble Apex Court had an occasion to consider what can be said to be "mistake or error apparent on the face of record". In para 22 to 35 it is observed and held as under:
7 R.A.No. 260/0029 of 2019
"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."
9. On perusal of the record, it is seen that there is no impugned order in the OA. Whereas in OA No. 503/2013, there was an impugned order and upon consideration of the same, this Tribunal quashed the order with observation. Therefore, this Tribunal upon considering the matter in its entirety including the note of submission filed by the applicant, in a detailed order, left the matter to the authority concerned with certain observations. But, the applicants without waiting for the decision of the authorities filed this RA with prayer to review the order and direct the respondents to protect the TRCA of the applicants @ of Rs. 1740-30-2640 on pre-revised TRCA as on 31.12.2005 and fixed TRCA as on 01.01.2006 @ Rs. 4220-75-6470, which prayer was not 8 R.A.No. 260/0029 of 2019 there in the OA notwithstanding the law that new question with new prayer cannot be raised in a Review Application. It is the apprehension of the applicant that the Tribunal passed the final order without taking note of the written notes of submission. The Tribunal can take into consideration such submissions, which are relevant to the prayer made in the OA and not otherwise. No such error apparent on the face of the record, in accordance with law, is pointed out in this RA rather it is establishes that through this Ra the applicants seek for rehearing of the entire matter on merit, which is impermissible under law. This Tribunal has gone through the decisions cited by the applicants in support of his plea in the review in the cases of R.K.Zalpuri (supra) and Rajendra Singh (supra). In the said decisions, the Hon'ble Apex Court has also taken the same stand that rehearing in the guise of RA is impermissible. At the stage, this Tribunal would like to place reliance on the decision of the Hon'ble Apex Court regarding interference by the Court/Tribunal in the RA.
10. In State of Haryana Vs. M.P. Mohla, (2007) 1 SCC 457, the Hon'ble Apex Court has held as under:
"27. A review petition filed by the appellants herein was not maintainable. There was no error apparent on the face of 9 R.A.No. 260/0029 of 2019 the record. The effect of a judgment may have to be considered afresh in a separate proceeding having regard to the subsequent cause of action which might have arisen but the same by itself may not be a ground for filing an application for review."
11. In the case of Haridas Das v. Usha Rani Banik (Smt.), (2006) 4 SCC 78, while considering the scope and ambit of Section 114 CPC read with Order 47 Rule 1 CPC, the Hon'ble Apex Court observed and as under:
"14. In Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170 it was held that:
"8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. In connection with the limitation of the powers of the court under Order 47 Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution, this Court, in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389 speaking through Chinnappa Reddy, J. has made the following pertinent observations:
''It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be 10 R.A.No. 260/0029 of 2019 exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct 20 all manner of errors committed by the subordinate court.'"
12. In the case of Lily Thomas v. Union of India, (2000) 6 SC 224, it has been observed and held by the Hon'ble Apex Court that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power.
13. What can be said to be an error apparent on the face of the proceedings has been dealt with and considered by the Hon'ble Apex Court in the case of T.C. Basappa Vs. T. Nagappa, AIR 1954 SC 440. It has been held that such an error is an error which is a patent error and not a mere wrong decision.
11 R.A.No. 260/0029 of 2019
14. In the case of Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233, it is observed as under:
"It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated."
15. In view of the discussions made above, on the whole, our opinion is that the so-called apparent errors alleged to have been committed in the order of this Tribunal are neither errors of law nor do they appear on the face of the record. Accordingly, this RA is dismissed. Parties to bear their own costs.
(Rajnish Kumar Rai) (Pramod Kumar Das) Member (Judl.) Member (Admn.) RK/PS