Central Administrative Tribunal - Lucknow
Nokhey Ram Yadav Aged About 58 Years Son ... vs Union Of India Through Secretary on 20 December, 2013
Central Administrative Tribunal, Lucknow Bench, Lucknow Review Application No. 12 of 2009 in Original Application No.258/2003 This the 20th day of December, 2013 Honble Sri Navneet Kumar , Member (J) Honble Ms. Jayati Chandra, Member (A) Nokhey Ram Yadav aged about 58 years son of late Sri Chhedi Ram Yadav r/o village Sukurpurwa, Kathamafi, Gonda Applicant By Advocate: Sri A.Moin Versus 1. Union of India through Secretary, Ministry of Communication, Dak Bhawan, New Delhi. 2. Director General, Post, Dak Bhawan, New Delhi. 3. Chief Post Master General, Hazratganj, Lucknow. 4. Post Master General, Gorakhpur Region, Gorakhpur. 5. Director , Postal Services, Gorakhpur Region, Gorakhpur. 6. Superintendent of Post Offices, Gonda Division, Gonda. Respondents By Advocate: Sri S.P.Singh (Reserved on 25.11.2013) ORDER
BY HONBLE SRI NAVNEET KUMAR, MEMBER (J) The present Review Application is preferred by the applicant u/s 22(3)(f ) of AT Act, 1985 for reviewing the order dated 29.1.2009 passed in O.A. No. 258 of 2003, which was finally dismissed by the Tribunal.
2. The applicant originally preferred the O.A. before this Tribunal for quashing the order dated 20.3.2002, 26.3.2002, 20.10.2099 and 31.5.1999 including the show cause notice dated 13.8.99 and 6.6.2000. It is submitted by the learned counsel for applicant that against the punishment imposed by the Director Postal Services, though an appeal lies before the appellate authority but no appeal was preferred by the applicant. The learned counsel for applicant has also pointed out that a show cause notice is issued under Rule 29 of CCS(CCA) Rules, by the Post Master General, Gorakhpur. It is also pointed out by the learned counsel for the applicant that Rule 29 of CCA (CCS) Rules provides that the power of revision cannot be exercised by an appellate authority and ignoring this aspect ,the impugned punishment order dated 20.10.1999 was passed which was challenged by the applicant in the O.A. The judgment was reserved and order was pronounced on 29.1.2009 and the O.A. was dismissed.
3. While deciding the O.A., the Tribunal considered the relevant aspects of the matter and it has been argued by the learned counsel for the applicant that the main issue raised in the Supple. Affidavit is in regard to Rule 29 of CCS (CCA) Rules which indicates that no power of revision shall be exercised by an authority unless (i) the authority which made the order in appeal or (ii) the authority to which an appeal would lie, no appeal has been preferred, is subordinate to him, meaning thereby that no power of revision can be exercised by the appellate authority himself.
4. Learned counsel emphasized that the show cause notice was issued by the Post Master General, Gorakhpur on 17.8.99 under rule 29 of CCS (CCA) rules, as such entire action of the respondents is illegal and is liable to be quashed.
5. Learned counsel for the applicant has also relied upon few decisions such as:-
(i) Appeal (Civil) No. 6101-6102 of 2005 (Rajender Singh Vs. Lt.Governor, Andaman and Nicobar).
ii) Abdul Hamid Vs. 3rdAddl.District Judge, Mainpuri reported in 2000(18) LCD 639;
iii) W.P. No. 368 (S/B) of 2005 in the case of Union of India and others Vs. Ahmad Hussain and another;
iv) Nathilal Jain Vs. Union of India and others reported in (1991) 17 ATC, 485
v) O.A. No. 212/2004 Ahmad HussainVs. Union of India and others (decided on 23.12.2004, CAT, Lucknow Bench)
6. The learned counsel appearing on behalf of the respondents has vehemently argued and submitted that while deciding the O.A., the Tribunal considered all aspects of the matter. Apart from this, it is also submitted that as per rule 29 (v) of CCS (CCA) Rules, 1965, the Appellate authority within six months of the date of order proposed to be revised , the order passed by the disciplinary authority. It is also pointed out by the learned counsel for the respondents that the allegations leveled in the review application is misleading, false, vague and incorrect. Apart from this, the learned counsel for the respondents has relied upon the decisions of the Honble High Court in Review Application No. 294/2011 , Chandra BhushanPandey Vs. Sri NarainSingh, Minister of Horticulture, Department , Lucknow and others reported in (2012) 1 UPLBEC, 130. Apart from this, learned counsel for respondents has also relied upon a Full Bench decision in the case of J. Soloman and others Vs. UOI and others reported in (1995) 29 ATC (FB) 252 as well as the decision of the Tribunal in Review Application No.4/2011 in the case of UOI and another Vs. Ram Deo and others (decided on 12.3.2011). Not only this, the learned counsel for respondents has also emphasized on order passed in O.A. No. 516/2010 (Ravinder Kumar Saxena Vs. UOI and others- CAT, lucknow bench) (decided on 10.8.2011), in which the Tribunal has given much emphasis on Rule 29 of CCS (CCA) Rules, 1965.
7. Heard the learned counsel for the parties and perused the record.
8. Admittedly, the O.A. was filed by the applicant which was finally disposed of and the O.A. was dismissed. The contention of the learned counsel for applicant is only to the extent that Supple . Affidavit filed by the applicant was not considered as notices were given under rule 29 of CCS (CCA) Rules, cannot be issued by the appellate authority and no power of revision can be exercised by the appellate authority. This fact , said to, have been not considered by the Tribunal while deciding the O.A. The decision of the Honble Apex Court cited by the learned counsel for applicant in the case of Rajendra Singh (supra) provides that the courts should not hesitate to review its own earlier order when there exists an error on the face of the record and the interest of justice so demands in appropriate cases.
9. In the case of Abdul Hamid (supra), cited by the the learned counsel for applicant, the Honble High Court held that objection can be raised at any stage even if not pleaded in the court below.
10. As regards the decision of the Tribunal in the case of Ahmad Hussain which was taken to the Honble High Court by the Union of India and Honble High court has dismissed the writ petition and while deciding the O.A., the Tribunal set aside the charge sheet dated 12.4.2004 and order of recovery was also set aside by the Tribunal and directed the respondents to pay retiral benefits to the applicant. In the said case, the Tribunal has examined rule 29 of CCS (CCA) Rules.
11. As regards the case of NathilalJain (supra), in this case the Tribunal observed that Legal points can be raised at any stage even if they were not mentioned in the appeal, the applicant can raise them at the stage of arguments.
12. The learned counsel for respondents have relied upon the decision of the Honble High Court passed in Review Petition No. 294/2011 (Chandra BhushanPandey- supra), where the Honble High Court has dealt the scope of review and passed a detailed order. In the case law cited by the learned counsel for respondents of Full Bench of CAT in the case of J.Soloman (supra), the Tribunal has also dealt with the scope of review and has pointed out that the scope of review has been defined in Order 47 Rule 1 of the CPC and it has also been dealt that a party is not entitled to seek a review of the judgment delivered by the Tribunal merely for the purpose of rehearing and fresh decision of the case.
13. The Tribunal in the case of Union of India Vs. Ram Deo (RA No. 4/2011 in O.A.No. 451/1993 -CAT, Lucknow- supra), the Tribunal again dealt with the scope of review and has also relied upon number of decisions of the Honble Apex Court.
14. While considering the decision in the case of Ravinder Kumar Saxena (supra), the Tribunal has given the great emphasis about the interpretation of Rule 29 of CCS (CCA), Rules, 1965.
15. Now, only two questions are required for determination i) the scope of review ii) whether the Tribunal while deciding the O.A. No. 258/2003 has considered the pleadings on record or not. It is to be seen from bare reading of the judgment, the Tribunal while deciding the O.A. has mentioned this fact that the revisional authority issued notice dated 6.6.2000 declaring his intention to further enhance the punishment to that of dismissal from service but finally imposed the punishment of compulsory retirement of the applicant. It is also to be pointed out that the revision petition preferred by the applicant against this order was dismissed by the Member Personnel, Postal Service Board, who by his order dated 23.3.2000 confirmed the penalty of compulsory retirement. It is also to be pointed out that the Tribunal also dealt with Rule 29(1) of CCS (CCA) Rules.
16. The issue in regard to interference in the review application and the scope of review lies only on the grounds mentioned in order 47 Rule 1 read with Section 141 CPC. The party must satisfy the court that the matter or evidence discovered by it at a subsequent stage could not be discovered or produced at the initial stage though it had acted with due diligence. It is also clear that a review can be allowed only when some mistake or error on the face of record is found or on any analogous ground. It is also to be pointed out that review is not permissible on the ground that the decision was erroneous on merits as the same would be the province of an Appellate Court.
17. While deciding the review Petition No.294/2001 (Chandra Bhushan Pandey (supra), the Honble High Court has been pleased to observe as under:-
8. In M/s. Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur, AIR 1964 SC 1372, The Apex Court held that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that 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.
9. Hon'ble the Apex Court in Subhash Vs. State of Maharastra& Another, AIR 2002 SC 2537, the Apex Court emphasised that Court should not be misguided and should not lightly entertain the review application unless there are circumstances falling within the prescribed limits for that as the Courts and Tribunal should not proceed to re-examine the matter as if it was an original application before it for the reason that it cannot be a scope of review.
18. The full bench of the Tribunal has also followed the view of the Honble Apex Court in the case of Chandra Kanta Vs.SheikhHabib reported in (1975) 1 SCC 674 and has been pleased to observe as under:-
The Tribunal also in the case of Anil Kumar Bose Vs. Presidency Postmaster has held that a party is not entitled to seek a review of the judgment delivered by this Court merely for the purpose of rehering and fresh decision of the case. Thus, we find that there is no such matter produced in the review application which could show any error apparent on the face of the judgment or that the judgment needs to be reviewed in the light of the contentions raised in the review petition. Even if the view taken by the Full Bench in drawing its conclusion may be assailed as erroneous that by itself cannot be ground for review. Not only this, it is also clear that a party is not entitled to seek a review of judgment for the purpose of rehearing and fresh decision in the case.
19. As observed by the Honble Apex Court in the case of Meera Bhanja v. Nirmala Kumari Choudhury reported in (1995) 1 SCC 170 , the Apex Court has decided the issue of review and has observed that review proceedings are not by way of an appeal and have to be strictly continued to the scope and ambit of Order 47 Rule 1 of CPC and review petition is required to be entertained only on the ground of error apparent on the face of record. The Honble Apex Court has observed as under:
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 of India, this Court, in the case of AribamTuleshwar Sharma v. AribamPishak Sharma, speaking through Chinnappa Reddy, J., has made the following pertinent observations: (SCC p. 390, para 3).
It is true as observed by this Court in Shivdeo Singh v. State of Punjab, 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 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 subordinate court. An error which has to be established by a long-down process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue a writ.
20. As categorically pointed out by the Honble Apex Court that who has decided the matter cannot re-apprise the entire issue afresh. Only the typographical error or the error apparent on record can be rectified in the Review Application. By means of the present Review Application the applicant tried to reopen the entire matter afresh. The Tribunal while deciding the R.A. No. 34 of 2011 has relied upon the decision of the Honble Apex Court in the case of State of West Bengal and Ors. vs- Kamal Sengupta and Another reported in 2008 (3) AISLJ 231, 5. In the matters concerning review the Tribunal is guided by Rule 47(1) of CPC. The parameter of a review application is limited in nature. The Apex Court has laid down the contours of a review application in the State of West Bengal and Ors. Vs KamalSengupta and Another (Supra)/ At para 28 the Honble Apex Court has laid down eight factors to be kept in mind which are as follows:
(1) The power of the Tribunal to review is akin to order 47 Rule 1 of CPC read with Section 114.
(2) The grounds enumerated in order 47 Rule 1 to be followed and not otherwise.
(3) that any other sufficient reasons in order 47 Rule 1 has to be interpreted in the light of other specified grounds.
(4) 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 the record.
(5) An erroneous decision cannot be correct under review. (6) An order cannot be reviewed on the basis of subsequent decision/ judgment of coordinate/ larger bench or a superior Court. (7) The adjudication has to be with regard to material which were available at the time of initial decision subsequent event/ developments are not error apparent.
(8) Mere discovery of new/ important matter or evidence is not sufficient ground for review. The party also has 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 earlier before the Tribunal.
21. While deciding the Review Application No. 4/2011 in O.A.No. 451/1993, this Tribunal has observed as under:-
11. It is also worthwhile to mention that this litigation has been pending for the last three decades and most of the applicants are now on the verge of their age of retirement as already observed in para 18 of the judgment of this Tribunal. When this litigation started, the initial stand of the reviewist was that on the basis of record of pay sheets and paid vouchers etc., it has been found by the Committee that out of 30 applicants, no body has completed continuous 120 days of working. When the matter went before the Honble High Court and it was directed that the relevant record may be inspected, the entire record was not produced. However in furtherance of the orders of the Honble High Court, the available record was inspected at the residence of the learned Counsel for petitioners (Rlys.) Sri Anil Srivastava who is learned counsel for the present reviewist. A chart was prepared there also which was duly verified by Divisional Finance Manager , NR, and it was also brought on record. The Honble High Court then observed that prima facie it appeared that sufficient number of petitioners have discharged duties for 120 days and have acquired temporary status under the Railway Establishment Manual. Thus, a prima facie finding has already been recorded by the Honble High Court in favour of the applicants. However, finally the matter was remitted back to this Tribunal for deciding it afresh. Accordingly, parties appeared before this Tribunal and the applicants requested for summoning remaining 56 pay sheets and paid vouchers on the ground that out of total 99 pay sheets /paid vouchers, inspection of only 44 was done during pendency of the matter before the Honble High Court. After remittance of the matter to the Tribunal by the Honble High Court, the D.R.M. concerned is said to had approached the Vigilance Department and obtained those remaining 56 pay sheets/ paid vouchers and produced the same in this Tribunal for inspection. After the joint inspection of those papers, the above chart was prepared. Thus, it appears that the reviewist had been taking a pedantic approach in the matter instead of pragmatic approach from the beginning of the litigation about 30 years before. Initially they denied the claim of 120 days of continuous working without producing the record on some pretext or the other and then producing it in part before the Honble High Court and then producing the remaining part before this Tribunal when no alternative was left with them. Then, after joint inspection, an affidavit was filed on behalf of the applicants enclosing the relevant chart duly counter signed by the representative of the Railways saying that except two all the applicants have completed continuous 120 days of working. Reviewist had also an opportunity to controvert this averment but they did not . Ultimately, the matter has been finally decided. Now, they have filed this review petition taking certain new points altogether as already discussed.
22. While dealing with Rule 29 of CCS (CCA) Rules, 1965, this Tribunal has decided a case of Ravinder Kumar Saxena (supra). Since the Tribunal while deciding the O.A. No. 258/2003 has considered all aspects of the matter, as such there appears to be no justified reason to interfere in the present Review Application and there appears to be no error apparent on the face of record which can be corrected in a review application nor a Tribunal can write a second order since it cannot sit on appeal on its own order.
23. Considering the facts of the case and law laid down by the parties, we do not find any ground to interfere with the present review petition. Review petition lacks merit and as such it deserves to be dismissed. Accordingly, Review Petition is dismissed. No order as to costs.
(Jayati Chandra) (Navneet Kumar) Member (A) Member (J) HLS/-