Central Administrative Tribunal - Delhi
Ashwani Kumar Sharma vs Secretary (R) on 29 January, 2015
Central Administrative Tribunal Principal Bench, New Delhi R.A. No.43/2014 In OA No.140/2014 Reserved On:27.01.2015 Pronounced On:29.01.2015 Honble Shri G.George Paracken, Member (J) Ashwani Kumar Sharma House No.217, Sector-30 Faridabad, Haryana. ..Review Applicant (By Advocate: Shri A.K. Ojha) Versus 1. Secretary (R) Cabinet Sectt. Bikaner House Annexe Shahjahan Road, New Delhi-110001. 2. Secretary, Ministry of External Affairs, South Block, New Delhi-110011. Respondents By Advocate: Shri Satish Kumar. ORDER
Shri G.George Paracken, M(J) By this Review Application, the Applicant is seeking a review of the order of this Tribunal dated 16.01.2014 in OA No.140/2014. The operative part of the said order reads as under:-
4. I have heard the learned counsel for the Applicants counsel and gone through the documents available on record. In my considered opinion, this is not a case fit to be admitted. The question is not the entitlement of the Applicant for servant allowance but it is the delay in filing this OA before this Tribunal. According to the Applicant himself, the cause of action has arisen in the year 2006 and there is a delay of seven years and nine months in filing this OA. Therefore, undoubtedly this is a highly belated case. I also do not agree with the submission of the learned counsel for the applicant that there was embargo upon him in approaching this Tribunal earlier. The instructions contained in para 9.49 referred to above only says that the employee should not take recourse to Courts of Law in mattes which would directly or indirectly result in breach of security and the outsiders and unauthorized personnel would come to know about it. This case is not a case coming under the said category.
5. The Apex Court in the case of D.C.S. Negi Vs. U.O.I. & Others (SLP (Civil) No.7956/2011 CC No.3709/2011) decided on 11.03.2011 held that the applications which are time barred are not to be entertained by this Tribunal. The relevant part of the said judgment reads as under:-
Before parting with the case, we consider it necessary to note that for quite some time, the Administrative Tribunals established under the Act have been entertaining and deciding the applications filed under Section 19 of the Act in complete disregard of the mandate of Section 21, which reads as under:-
21. Limitation -
(1) A Tribunal shall not admit an application, -
(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-section (1), where
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates ; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section(2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period.
A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21 (1) or Section 21 (2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21 (1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21 (3).
3. On the point of limitation it has been reiterated by the Honble Supreme Court in the latest judgment in the case of..
6. In view of the above legal position, this OA is dismissed. There shall be no order as to costs.
2. According to the learned counsel for the Applicant Shri A.K. Ojha, there was no delay in filing the OA, as held by this Tribunal but if at all there was delay, it was condonable. He has further stated that even though he has argued so while hearing the OA, he could not produce any relevant judgments. Now he has produced the judgment of the Apex Court in the case of K.C. Sharma and Others Vs. Union of India and Others 1997 (6) SCC 721. The petitioners therein were retired Guards of the Northern Railway and they were aggrieved by the Notification dated 05.12.1988 whereby Rule 2544 of the Indian Railway Establishment Code was amended and for the purpose of calculation of average emoluments, the maximum limit in respect of Running Allowances was reduced from 75% to 45% for the period from 01.01.1973 to 31.03.1979 and to 55% for the period from 01.04.1979 onwards. This Tribunal dismissed their petition on the ground of limitation without condoning the delay for which a separate application was filed. However, the Apex Court held that this Tribunal should have condoned the delay in the filing of the Original Application and the appellants should have been given relief in the same terms as was granted by the Full Bench of this Tribunal to other similarly placed persons.
3. The learned counsel for the Review Applicant has also relied upon an order of this Tribunal in the case of Rajiv Tandon Vs. Government of India and Others 2012 (2) CAT 129. The Applicant therein had questioned the notification dated 20/29.01.1994 issued by the Government of India, Department of Personnel & Training, amending the proviso to clause (1) of sub-rule (3) of rule 3 of the Rules of 1988 with retrospective effect, being ultra vires. The contention of the Respondents was that the case was hit by limitation. But this Tribunal held that it is a creation of the statute which has come into existence by way of provisions contained in Article 323-A of the Constitution of India and it is not a civil court or a court, as the case may be, and, therefore, provisions contained in Article 137 of the Limitation Act, 1963 would not be applicable. The period of limitation and terminus a quo as referred to under Section 21 of the Administrative Tribunals Act, 1985, relates only to statutory appeals or representations, and not ordinary appeals or representations.
4. Respondents have filed their reply stating that by this Review Application the Applicant is only making an attempt to re-argue the matter which is not permissible in law. They have relied upon the judgment of the Apex Court in the case of Haridas Das Vs. Smt. Usha Rani Banik & Others 2006 (4) SCC 78 wherein it has been held as under:-
13. 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 in 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 the power to review its order with the greatest circumspection. This Court in M/s. Thungabhadra Industries Ltd. (in all the Appeals) v. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur, [AIR 1964 1372] 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 states 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."
5. The learned counsel for the Respondents has also relied upon the judgment of the Apex Court in the case of Aribam Tulelshwar Sharma Vs. Aribum Pishak Sharam 1979 (4) SCC 389 wherein it has been held as under:-
.But, there are definitive limits to the exercise of the power of review. The power of review may be 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 all manner of errors committed by the Sub-ordinate Court.
6. Further, he has relied upon the judgment of the Apex Court in Ajit Kumar Rath Vs. State of Orissa and Others 1999 (9) SCC 596. The relevant part of the said judgment reads as under:-
30. 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 S. 114 read with O. 47, C. P. C. 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.
31. 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.
7. The Respondents have also submitted that there is no error apparent on the face of record in the order of this Tribunal dated 16.01.2014 hence it is not permissible for the Review Applicant to reargue the matter afresh. They have again submitted that the cause of action has arisen in 2006 and the OA was filed in 2013, i.e., after a delay of 7 years.
8. I have heard the learned counsel for the Review Applicant Shri A.T. Ojha and the learned counsel for the Respondents Shri Satish Kumar. As observed by this Tribunal in its order dated 16.01.2014 in OA No.140/2014 (supra), the question was not that of entitlement of the Applicant for servant allowance but it was the delay in filing the OA before this Tribunal. The payment of servant allowance whether permissible or not is not a continuous cause of action. There is limitation in claiming the said allowance. I, therefore, had dismissed the case following the judgment of the Apex Court in the case of D.C.S. Negi (supra).
9. The judgment of the Apex Court in the case of K.C. Sharma (supra) and order of this Tribunal in Rajiv Tandons case (supra) are not applicable in the facts and circumstances of this case. While the issue in K.C. Sharmas case (supra) is for calculation of average emoluments based on running allowance which has its impact on their pension which is a continuous cause of action, the issue raised in Rajiv Tandons case (supra), the law laid down was that Section 21 of the Administrative Tribunals Act, 1985 with regard to limitation relates only to statutory appeals or representations, and not ordinary appeals/representations, not provided in the aforesaid rules. Both the judgments have nothing to do with the present case.
10. In view of the above position, this Review Application is devoid of any merit and it is accordingly dismissed. There shall be no order as to costs.
(G. George Paracken) Member (J) Rakesh