Allahabad High Court
Anil Kumar Rana vs State Of U.P.Thru Prin.Secy. Home ... on 1 December, 2020
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 16 C.M. Application No.43080 of 2020 C.M. Application No.43084 of 2020 C.M. Application No.43087 of 2020 In re; Case :- SERVICE SINGLE No. - 2936 of 2020 Petitioner :- Anil Kumar Rana Respondent :- State Of U.P.Thru Prin.Secy. Home Lucknow & Ors. Counsel for Petitioner :- Raj Vikram Singh Counsel for Respondent :- C.S.C. Hon'ble Rajesh Singh Chauhan,J.
Heard Sri Raj Vikram Singh, learned counsel for the review-applicant/ petitioner.
Learned counsel for the petitioner has submitted that the petitioner has assailed the order dated 27.2.2020 passed by this Court (Single Judge) by filing Special Appeal No.140 of 2020. The said special appeal has been dismissed on 28.5.2020. Just after receiving the certified copy of the order being passed in the special appeal, the petitioner preferred the instant review application along with application under Section 5 of the Limitation Act indicating therein that there is no deliberate delay on the part of the petitioner to file the review application, therefore, the delay in filing review application may be condoned.
Sri Raj Vikram Singh has referred the dictum of the Hon'ble Apex Court dated 1.3.2019 in re; Civil Appeal No.2432 of 2019 arising out of SLP (C) No.490 of 2012; Khoday Distilleries Ltd. (now known as Khoday India Limited) and others Vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd., Kollegal (under Liquidation) represented by the Liquidator, to submit that the review petition may be filed even after dismissal of special appeal.
The aforesaid dictum is not applicable in the present case as facts and circumstances of the present case are different from the case considered by the Hon'ble Apex Court in re; Khoday Distilleries Ltd. (supra). However, I hereby condone the delay in filing the review application. C.M. Application No.43080 of 2020 (Application for Condonation of Delay) is accordingly allowed.
Heard learned counsel for the petitioner on admission.
This review application (C.M. Application No.43087 of 2020) has been filed against the judgment and order dated 27.2.2020 passed by this Court. Operative portion of the said order is as under:-
"In view of the above, this Court is of the view that a Sub-Inspector cannot initiate de novo proceedings in an issue which has already been decided up to the level of Supreme Court and if it so required, such order could have been passed by the Disciplinary Authority i.e. Superintendent of Police. In the present case, no such order has been passed by the Superintendent of Police, Hardoi, therefore, it appears prima facie that the said Sub-Inspector has exceeded his jurisdiction for which any appropriate action may be taken strictly in accordance with law.
Pursuant to the aforesaid letter dated 27.08.2018, the Teshildar Shahabad has apprised the Inspector In-charge, Kotwali Shahabd that the Caste Certificate in question relating to the petitioner has been issued from his office.
In view of the facts and circumstances of the issue in question, it appears that the petitioner has filed misconceived petition and wasted precious time of this Court inasmuch as this Court has given indulgence on 04.02.2020, 12.02.2020, 19.02.2020 and today i.e. 27.02.2020, therefore, the writ petition is dismissed being misconceived with the cost of Rs. 5,000/-. The amount of the cost shall be deposited in the mediation centre within six weeks, failing which, the Senior Registrar shall recover the said amount from the petitioner as arrears."
Undisputedly, the petitioner assailed aforesaid judgment and order dated 27.2.2020 by filing special appeal bearing No.140 of 2020; Anil Kumar Rana Vs. State of U.P. and others. The court of appeal has considered all the facts and circumstances of the issue, which have been narrated in the writ petition.
Learned counsel for the petitioner raised ground that the order of writ court dated 27.2.2020 is an ex-parte order inasmuch as on that date, learned counsel for the petitioner could not appear. Further, copy of supplementary affidavit and personal affidavit so filed by the Superintendent of Police, Hardoi was not provided, therefore, he could not file response thereto. To decide the issue in question, the court of appeal has framed two issues, which are as under:-
"(i) Weather in the instant case for holding the de-novo enquiry the competent authority i.e. Superintendent of Police, District Hardoi passed any order or not.
(ii) Whether the judgment, under appeal, is liable to be interfered with on the grounds related to principles of natural justice or not."
Both the aforesaid issues have been considered and decided by the court of appeal considering some judgments of the Hon'ble Apex Court.
The court of appeal has observed as under:-
"Even before this Court, in the appeal, no affidavit or document has been filed by the petitioner-appellant controverting the averments made in the personal affidavit of the Superintendent of Police, District Hardoi.
In view of the aforesaid, particularly in absence of any document or affidavit controverting the facts/averments made in the personal affidavit filed by the Superintendent of Police, District Hardoi, we are of the view that in the instant case, de-novo enquiry against the appellant was never ordered or initiated by the competent authority i.e. Superintendent of Police, District Hardoi."
Operative portion of the court of appeal dated 28.5.2020 is being reproduced as under:-
"Taking into consideration the facts and circumstances of the present case including the reasoning given by us on issue no.(i), as noted above, and the principles of "Useless Formality" theory as also the observations made by the Hon'ble Apex Court, quoted hereinabove, we decide the issue no.2 against the appellant and hold that the judgment and order dated 27.02.2020 is not liable to be interfered with on the ground of violation of principles of natural justice, as alleged by the learned counsel for the appellant.
In view of aforesaid, the Special Appeal is dismissed. No order as to costs."
By means of present review application, learned counsel for the review petitioner has taken ground that the writ court has erred in observing that the petitioner has preferred representation for de-novo enquiry. Further, the writ court has erred in not considering the fact that enquiry officer has initiated de-novo enquiry in the light of dictum of Hon'ble Apex Court in re; Union of India and others Vs. P. Thayagarajan dated 24.11.1998. He has also raised another ground that since all the courts from Tribunal to Hon'ble Supreme Court, the petition of the petitioner was rejected on the ground of delay, therefore, it should have been decided on merits by writ court deciding the present writ petition i.s. Writ Petition No.2936 (S/S) of 2020. Lastly, the personal affidavit so filed by the Superintendent of Police, Hardoi has not been filed as per Rules.
Having heard learned counsel for the petitioner and having perused the material available on record, the scope of court of review under Order 47 Rule 1 C.P.C. is very limited and this jurisdiction can be invoked only if there is mistake or error apparent on the face of record. In the instant review application, learned counsel for the petitioner has carelessly attempted to make repetition of grounds, which have already been taken before the writ court and before the court of appeal, therefore, the manner in which this review application has been filed is deprecated as it is a misuse of the process of the Court.
Besides, the order of writ court dated 27.2.2020 has been merged into the order of court of appeal dated 28.5.2020, therefore, the present review is not maintainable and is being dismissed at the admission stage. Accordingly, no notice is required to be issued to the opposite parties.
It is settled proposition of law by the Hon'ble Apex Court in catena of judgments that the scope of the review is very limited and unless & until an apparent error is pointed out in the judgment in question or any apparent illegality has been made, the order in question may not be reviewed as has been held by Hon'ble Supreme Court in the cases of Thungabhadra Industries Limited vs. Governor of Andhra Pradesh reported in AIR 1964 SC 1372, M/s. Northern India Caterers (India) vs. Lt. Governor of Delhi reported in (1980) 2 SCC 167 and in the case of Lily Thomas and others vs. Union of India and others reported in (2000) 6 SCC 224 that review cannot be an appeal in disguise to re-hear the matter. Similar view has been taken by the Hon'ble Supreme Court in the cases of Subhash vs. State of Maharastra reported in AIR 2002 SC 2537 as well as Rajendra Kumar vs. Rambhai reported in AIR 2003 SC 2095 and Haridas Das vs. Usha Rani Banki (Smt.) and others reported in (2006) 4 SCC 78.
Therefore, I am of the considered opinion that there is no apparent error or illegality in the judgment and order dated 27.2.2020 passed by this Court, hence this review application (C.M. Application No.43087 of 2020) is dismissed being misconceived and not maintainable.
Since review application has been dismissed, therefore, application for interim relief i.e. C.M. Application No.43084 of 2020 is also rejected.
[Rajesh Singh Chauhan,J.] Order Date :- 1.12.2020 RBS/-