Central Administrative Tribunal - Delhi
Union Of India Through vs Dharam Pal Gupta on 13 March, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI R.A. NO. 47/2013 and MA No. 658/2013 IN O.A. NO.2667/2011 New Delhi this the 14th day of March, 2013 HONBLE SHR G. GEORGE PARACKEN, MEMBER (J) HONBLE MRS. MANJULIKA GAUTAM, MEMBER (A)
1. Union of India through Secretary, Department of Posts, Dak Bhawan, Sansad Marg, New Delhi.
2. Postmaster General Bareily Region, Bareily.
3. Director, Postal Services Office of the Postmaster General Bareily Region, Bareily.
4. Senior Superintendent of Post Offices Muzaffarnagar Division Muzaffarnagar (UP). ..Review Applicants in the RA/Respondents in the OA.
Versus Dharam Pal Gupta s/o Shri Prakash Chand aged 59 years Sub-Post Master Brahmpuri Muzaffarnagar Division Muzaffarnagar (UP) Respondent in the RA/Applicant in the OA.
ORDER BY CIRCULATION Shri G George Paracken:
This Review Application has been filed by the Respondent in OA 2667/2011 which was disposed of vide order dated 22.11.2012. The operative part of the said order reads as under:
5. We have heard the learned counsel for the parties. We have also perused the entire documents available on record. Admittedly, the impugned order of revision has been passed by the Director Postal Services and the same is contrary to Rule 29 of CCS (CCA) Rules, 1965 wherein no such power has been conferred upon the aforesaid authority. Therefore, the impugned order is passed by an incompetent authority and the same is nullity in the eyes of law. We, therefore, quash and set aside the aforesaid impugned revision order and restore the earlier order passed by the disciplinary authority in the matter.
6. With the aforesaid directions, this OA is allowed. There shall be no order as to costs.
2. The Respondents have sought review of the aforesaid order on the following main grounds:
(i) This Tribunal did not consider the preliminary objection raised by the respondents in their reply.
(ii) The Applicant, never made any appeal against the impugned order dated 17.02.2011, which is mandatory as per law.
(iii) As held by Apex Court in S.S. Rathore Vs. State of Madhya Pradesh (AIR 1985 SC 772) the exhaustion of the remedies available is a condition precedent to maintaining the claim under the Administrative Tribunals Act, 1985.
(iv) As per Rule 29 (1)(v) of the CCS (CCA) Rules, 1965 the Appellate Authority is competent to revise the order. The said Rule is as under:-
29. Revision (1) Notwithstanding anything contained in these rules-
(i) the President; or (ii) the Comptroller and Auditor-General, in the case of a Government servant serving in the Indian Audit and Accounts Department; or (iii) the Member (Personnel) Postal Services Board in the case of a Government servant serving in or under the Postal Services Board and Adviser (Human Resources Development), Department of Telecommunications in the case of a Government servant serving in or under the Telecommunications Board; or (iv) the Head of a Department directly under the Central Government, in the case of a Government servant serving in a department or office (not being the Secretariat or the Posts and Telegraphs Board), under the control of such Head of a Department; or (v) the appellate authority, within six months of the date of the order proposed to be revised or (vi) any other authority specified in this behalf by the President by a general or special order, and within such time as may be prescribed in such general or special order;
may at any time, either on his or its own motion or otherwise call for the records of any inquiry and revise any order made under these rules or under the rules repealed by rule 34 from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may-
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or
(c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or [1. Substituted for word Review vide DP&AR Notification No.11012/1/80-Ests.(A), dated 06.08.1981. The term review occurring anywhere in the rule amended accordingly.
2. Substituted vide DOP&T Notification No.11012/6/85-Estt.(A) dated 6.8.1985, and further amended by Notification No.11012/13/89-Estt.(A)dated 30.03.1990] -
(d) pass such other orders as it may deem fit:
Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (v) to (ix) of rule 11 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, and if an inquiry under rule 14 has not already been held in the case no such penalty shall be imposed except after an inquiry in the manner laid down in rule 14 subject to the provisions of rule 19, and except after consultation with the Commission where such consultation is necessary :
Provided further that no power of revision shall be exercised by the Comptroller and Auditor-General, Member (Personnel), Postal Services Board, Adviser (Human Resources Department), Department of Telecommunications or the Head of Department, as the case may be, unless-
(i) the authority which made the order in appeal, or (ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him. (2) No proceeding for revision shall be commenced until after- (i) the expiry of the period of limitation for an appeal, or (ii) the disposal of the appeal, where any such appeal has been preferred.
(3) An application for revision shall be dealt with in the same manner as if it were an appeal under these rules.
(v) Show cause notice was issued as per rules, within time limit mentioned in Rules.
(vi) Charge sheet was issued under Rule 14 of CCS (CCA) Rules, 1965 and charges were proved. Revising Authority observed that the punishment awarded by the disciplinary authority to applicant does not commensurate with the gravity of charges hence intention notice was issued before passing the order.
3. We have considered this Review Application in detail. In the first instance, it is seen that the order under review has been passed by the Tribunal on 22.11.2012 and the certified copy of the same has been issued on 26.11.2012. The limitation period for filing the Review Application is one month and, therefore, the Review Applicants should have filed this RA before 26.12.2012. However, it is seen that the same has been filed on 21.01.2013 which is after a delay of nearly a month.
4. Coming to the grounds taken in the Review Application, it is seen that the Review Applicants are only trying to reargue the case. In fact, the Review Applicants have not taken a single ground set out in Order 47 Rule 1 CPC.
5. The Apex Court has comprehensively analyzed the scope of Review in its judgments in The State of West Bengal and Others Vs. Kamal Sengupta and another JT 2008 (8) SC 317. It has also summarized the principles governing, the power of Review bestowed upon the Tribunal. The relevant part of the said judgment is as under:-
9. A reading of the above reproduced section makes it clear that even though a Tribunal is not bound by the procedure laid down in the CPC, it can exercise the powers of a Civil Court in relation to matters enumerated in clauses (a) to (i) of sub-section (3) including the power of reviewing its decision.
10. The power of a Civil Court to review its judgment/decision is traceable in Section 114 CPC. The grounds on which review can be sought are enumerated in Order 47 Rule 1 CPC, which reads as under :
Order 47 Rule 1 25 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.
11. Since the Tribunal's power to review its order/decision is akin to that of the Civil Court, statutorily enumerated and judicially recognized limitations on Civil Court's power of review the judgment/decision would also apply to the Tribunal's power under Section 22(3)(f) of the Act. In other words, a Tribunal established under the Act is entitled to review its order/decision only if either of the grounds enumerated in Order 47 Rule 1 is available. This would necessarily mean that a Tribunal can review its order/decision on the discovery of new or important matter or evidence which the applicant could not produce at the time of initial decision despite exercise of due diligence, or the same was not within his knowledge or if it is shown that the order sought to be reviewed suffers from some mistake or error apparent on the face of the record or there exists some other reason, which, in the opinion of the Tribunal, is sufficient for reviewing the earlier order/decision.
12. Before proceeding further, we consider it proper to mention that there was divergence of opinion among the High Courts on the question whether the subsequent contra judgment by the same or a superior Court on a point of law can be treated as an error apparent on the face of the record for the purpose of review of an earlier judgment. In Lachhmi Narain Balu vs. Ghisa Bihari and another [AIR 1960 Punjab 43], the learned Single Judge of the then Punjab High Court held that the Court cannot review its judgment merely because in a subsequent judgment different view was expressed on the same subject matter. In P.N. Jinabhai vs. P.G. Venidas [AIR 1972 Gujarat 229], the learned Single Judge of the Gujarat High Court considered the question whether the Court can revise its view on the question of pecuniary jurisdiction simply because the same has been rendered doubtful in the light of subsequent decision of the High Court and answered the same in negative. However, a contrary view was expressed in Thadikulangara Pylee's son Pathrose vs. Ayyazhiveettil Lakshmi Amma's son Kuttan and others [AIR 1969 Kerala 186]. In that case, the learned Single Judge of the Kerala High Court opined that a subsequent decision authoritatively declaring the law can be made basis for reviewing an earlier judgment. The Law Commission took cognizance of these divergent opinions and suggested amendment of Order 47. That led to insertion of explanation below Rule 2 of Order 47 by Civil Procedure Code (Amendment) Act, 1976. The same reads as under:
Explanation.- 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.
13. In Nalagarh Dehati Co-operative Transport Society Ltd., Nalagarh vs. Beli Ram etc. [AIR 1981 HP 1] a Full Bench of Himachal Pradesh High Court considered the above reproduced explanation and held that a subsequent judgment of the Supreme Court or a larger bench of the same Court taking a contrary view on the point covered by the judgment does not amount to a mistake or error apparent on the face of the record. In Gyan Chandra Dwivedi vs. 2nd Additional District Judge, Kanpur and others [AIR 1987 Allahabad 40], the learned Single Judge of Allahabad High Court took cognizance of the explanation, referred to the judgment of this Court in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma [AIR 1979 SC 1047] and held :
"9. It will thus be seen that while power of review may be inherent in the High Court to review its own order passed in a writ petition, the same has to be exercised on well recognised and established grounds on which judicial orders are reviewed. For example the power may be exercised on the discovery of some new and important matter or evidence which was not within the knowledge of the parties seeking review despite due exercise of diligence when the order was made. Review can also be sought when the order discloses some error apparent on the face of record or on grounds analogous thereto. These are all grounds which find mention in various judicial pronouncements right from the earliest time as well as in the Rules of Order XLVII of the Civil P.C. as permissible grounds of review.
An Explanation was added to Order XLVII Rule 1 by the amendment of the Civil P.C. by Central Act No. 104 of 1976. It reads :
"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."
10. This explanation was added on the recommendation of the law Commission to put an end to the controversy which had arisen as regards whether a judgment could be reviewed merely on the ground that the decision on a question of law on which the same was founded has been reversed or modified by the subsequent decision of a superior Court. Almost all the High Courts, save for the solitary exception of Kerala High Court, were unanimous in their opinion that the fact that the view of law taken in a judgment has been altered by a subsequent decision of a superior Court in another case could not afford a valid ground for the review of the judgment."
14. 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.
15. 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 concerned Court/Tribunal cannot sit in appeal over its judgment/decision.
16. We may now notice some of the judicial precedents in which Section 114 read with Order 47 Rule 1 CPC and/or Section 22 (3) (f) of the Act have been interpreted and limitations on the power of the Civil Court/Tribunal to review its judgment/decision have been identified.
17. In Rajah Kotagiri Venkata Subamma Rao vs. Rajah Vellanki Venkatrama Rao [1990 (27) Indian Appeals 197], the Privy Council interpreted Sections 206 and 623 of the Civil Procedure Code and observed:
"Section 623 enables any of the parties to apply for a review of any decree on the discovery of new and important matter and evidence, which was not within his knowledge, or could not be produced by him at the time the decree was passed, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. It is not necessary to decide in this case whether the latter words should be confined to reasons strictly ejusdem generic with those enumerated, as was held in Roy Meghraj v. Beejoy Gobind Burral [(1875) Ind. L.R. 1 Calc. 197]. In the opinion of their Lordships, the ground of amendment must at any rate be something which existed at the date of the decree, and the section does not authorize the review of a decree which was right when it was made on the ground of the happening of some subsequent event."
[Emphasis added]
18. In Sir Hari Shankar Pal and another vs. Anath Nath Mitter and others [1949 FCR 36], a Five Judges Bench of the Federal Court while considering the question whether the Calcutta High Court was justified in not granting relief to non-appealing party, whose position was similar to that of the successful appellant, held :
"That a decision is erroneous in law is certainly no ground for ordering review. If the Court has decided a point and decided it erroneously, the error could not be one apparent on the face of the record or even analogous to it. When, however, the court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of the record sufficient to bring the case within the purview of Order XLVII, Rule 1, Civil Procedure Code. "
19. In Moran Mar Basselios Catholicos and another vs. The Most Rev. Mar Poulose Athanasius and others [1995 (1) SCR 520], this Court interpreted the provisions contained in Travancore Code of Civil Procedure which are analogous to Order 47 Rule 1 and observed :
"Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order XLVII, Rule 1 of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified grounds, namely, (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. It has been held by the Judicial Committee that the words "any other sufficient reason" must mean "a reason sufficient on grounds, or least analogous to those specified in the rule"."
20. In Thungabhadra Industries Ltd. vs. Govt. of A.P. [AIR 1964 SC 1372] it was held that a review is by no means an appeal in disguise whereof an erroneous decision can be corrected.
21. In Parsion Devi and Others vs. Sumitri Devi and Others [1997 (8) SCC 715], it was 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"."
[Emphasis added]
22. In Haridas Das vs. Usha Rani Banik and others [2006 (4) SCC 78], this Court made a reference to explanation added to Order 47 by the Code of Civil Procedure (Amendment) Act, 1976 and held :
"In order to appreciate the scope of a review, Section 114 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 47 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 Order 47 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."
23. In Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma (supra), this Court considered the scope of the High Courts' power to review an order passed under Article 226 of the Constitution, referred to an earlier decision in Shivdeo Singh vs. State of Punjab [AIR 1963 SC 1909] and observed :
"It is true as observed by this Court in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909, there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which is inherent 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 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 matters or errors committed by the Subordinate Court."
24. In K. Ajit Babu and others vs. Union of India and others (supra), it was held that even though Order 47 Rule 1 is strictly not applicable to the Tribunals, the principles contained therein have to be extended to them, else there would be no limitation on the power of review and there would be no certainty or finality of a decision. A slightly different view was expressed in Gopabandhu Biswal vs. Krishna Chandra Mohanty and others (supra). In that case it was held that the power of review granted to the Tribunals is similar to the power of a Civil Court under Order 47 Rule 1.
25. In Ajit Kumar Rath vs. State of Orissa and Others (supra), this Court reiterated that power of review vested in the Tribunal is similar to the one conferred upon a Civil Court and held:-
"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."
[Emphasis added]
26. In State of Haryana and Others vs. M.P. Mohla [2007 (1) SCC 457], this Court held as under:-
"A review petition filed by the appellants herein was not maintainable. There was no error apparent on the face of 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."
27. In Gopal Singh vs. State Cadre Forest Officers' Assn. and Others [2007 (9) SCC 369], this Court held that after rejecting the original application filed by the appellant, there was no justification for the Tribunal to review its order and allow the revision of the appellant. Some of the observations made in that judgment are extracted below:
"The learned counsel for the State also pointed out that there was no necessity whatsoever on the part of the Tribunal to review its own judgment. Even after the microscopic examination of the judgment of the Tribunal we could not find a single reason in the whole judgment as to how the review was justified and for what reasons. No apparent error on the face of the record was pointed, nor was it discussed. Thereby the Tribunal sat as an appellate authority over its own judgment. This was completely impermissible and we agree with the High Court (Justice Sinha) that the Tribunal has traveled out of its jurisdiction to write a second order in the name of reviewing its own judgment. In fact the learned counsel for the appellant did not address us on this very vital aspect."
28. 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.
(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.
6. In view of the above position, this review application is dismissed. There shall be no order as to costs.
(Manjulika Gautam) ( G. George Paracken ) Member (A) Member (J) Rakesh