Central Administrative Tribunal - Kolkata
Dr Mohan Gangopadhyay vs M/O Environment & Forests on 8 October, 2024
1 RA 18/2019 IN OA 1800/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
R.A. 350/0018/2019
IN O.A. 350/01800/2016
DATE OF HEARING: 27.09.2024
DATE OF JUDGMENT : 08.10.2024
Coram: Hon'ble Smt. Urmita Datta (Sen), Judicial Member
Hon'ble Mr. Suchitto Kumar Das, Administrative Member
In the matter of :
Dr. Mohan Gangopadhyay,
Son of Late Bishnupada Gangopadhyay,
Aged about 64 years,
Worked for gain as Scientist-D at
Sikkim Himalayan Regional Centre,
Botanical Survey of India,
Gangtok since
Retirement on superannuation on 31.10.2015 and
Residing at 36 D, Motilal Nehru Road,
Police Station - Lake,
Kolkata - 700 029.
...... Applicant
- V E R SU S -
1. Union of India,
Service through the Secretary,
Government of India,
Ministry of Environment and Forests,
Paryavaran Bhavan, CGO Complex,
Lodhi Road,
New Delhi - 110 003.
2. The Director,
Botanical Survey of India,
CGO Complex,
3rd MSO Building,
Block-F, 5th & 6th Floor,
(Room No. 549-555 & 649-655),
DF - Block, Sector - I,
Salt Lake City,
Kolkata - 700 064.
2 RA 18/2019 IN OA 1800/2016
3. The Pay & Accounts Officer,
BSI & ZSI,
17th Floor,
2nd MSO Building,
Nizam Palace,
234/14, AJC Bose Road,
Kolkata - 700 020.
4. The Junior Administrative Officer,
Botanical Survey of India,
CGO Complex, 3rd MSO Building,
Block - F, 5th & 6th,
(Room No. 549-555 & 649-655)
DF Block, Sector - I,
Salt Lake City,
Kolkata - 700 064.
5. The Scientist-in-Charge,
Sikkim Himalayan Regional Centre,
Botanical Survey of India,
Gangtok - 737 103,
Sikkim.
.... Respondents
For the Applicant : Mr. P.C. Das, Counsel
Ms. T. Maity, Counsel
For the Respondents : Ms. P. Goswami, Counsel
ORDER
Per: Hon'ble Suchitto Kumar Das, Administrative Member
1. This RA has been filed by the applicant seeking review of the order dated 04.07.2019 passed in O.A No.1800/2016.
2. The applicant, in his OA no. 350/1800/2016, had approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:
"(a) To pass an appropriate order directing upon the respondent authority to refund the recovery amount of HRAs of Rs. 35,910/- (Rs.
11,970/- + Rs. 23,940/-) which were recovered from the salary of the 3 RA 18/2019 IN OA 1800/2016 present applicant when he was posted at Sikkim Himalayan Regional Centre, Botanical Survey of India, Gangtok illegally by violation of the DoP&T Office Memo dated 24.9.2003.
(b) To pass an appropriate order directing upon the respondent authority to pay the unpaid House Rent Allowances with effect from July 2011 to October 2015 along with interest in terms of DoP&T Office Memo dated 24.9.2003 along with all consequential benefits in favour of the applicant.
(c) To declare that the Office Note which was put up by Pay & Accounts Office of the Botanical Survey of India, Kolkata which is appearing at Annexure A-6 of this original application is otherwise bad in law and illegal in view of the DoP&T Office Memo dated 24.9.2003.
(d) To pass an appropriate order directing upon the respondents authority to consider the office letter dated 18.7.2016 by which the Junior Administrative Officer of Botanical Survey of India, Kolkata requested the Scientist-in-Charge of Sikkim Himalayan Regional Centre, Botanical Survey of India, Gangtok to send all particulars along with necessary information in respect of the applicant to verify the claim which your applicant requested for payment of House Rent Allowance from July, 2011 to October, 2015 as well as refund of HRAs amount which were deducted from his salary for consideration of his representations dated 21.10.2014, 29.2.2016, 4.6.2016, 4.7.2016."
3. This Tribunal after discussing the issues involved in the matter disposed of the OA by passing the following order on 04.07.2019 :-
".....................
6. The rationale underlying grant of double HRA to such employees who are posted on transfer/promotion to North East region or at Andaman and Nicobar Islands, Lakshadweep and Ladakh is that on their posting at these 'difficult' stations, they may not be accompanied by their families to such postings. In order to ensure that the employees join these difficult stations, the benefit of HRA is extended to their families as well, who are allowed to remain at the last station of posting.
It is clear from the appointment orders and the posting orders of the applicant that the applicant's posting at Sikkim Himalayan Regional Centre, Botanical Survey of India, Gangtok, was a matter of fresh appointment and as he was not neither under orders of transfer or transfer on promotion, the scope of drawing double HRA on grounds that his family was residing at his earlier place of posting does not arise. It is also significant that the applicant did not furnish the requisite certificates to such effect.4 RA 18/2019 IN OA 1800/2016
7. Hence, the applicant's claim of double HRA is not justified. Neither are his claims supported by the Office Memorandum that the applicant wishes to rely on.
8. Accordingly, this O.A. is dismissed on merit. There will be no orders on costs."
The applicant in the OA has now approached the Tribunal by this Review Application praying for a review of the judgment passed by the Tribunal on 04.07.2019.
4. The applicant in his review application submits that the Bench while passing orders in OA no. 350/1800/2016 has erred in not taking into consideration the last two lines of DOP&T OM dated 24.09.2003 while arriving at its findings. Therefore, the judgment dated 04.07.2019 needs to be recalled and reviewed.
5. In order to appreciate the issue involved in the matter, it will be appropriate to delineate the facts :-
The applicant was a departmental candidate appointed to the post of Scientist -'C' at Sikkim Himalayan Regional Centre, Botanical Survey of India, Gangtok, as a direct recruit and, before joining the said post, he had rendered technical resignation from his earlier post of Botanist to join as Scientist-'C' on 2.2.2010. The applicant superannuated on 31.10.2015.
According to the applicant, while serving as Scientist 'D' in Sikkim Himalayan Regional Centre, Botanical Survey of India, Gangtok, he was entitled to claim double HRAs in terms of DOPT's Office Memorandum dated 24.9.2003. Upon an Office Note put up by the Pay & Accounts Office for violation of the said Office Memorandum, the applicant, however, had requested the respondent authorities to deduct any pay withdrawn as double HRA from his salary, and, accordingly, from March, 2011, to February, 2013, 5 RA 18/2019 IN OA 1800/2016 Rs. 35910/- have been recovered from the salary of the applicant on account of drawal of double HRA.
That, thereafter, on 21.10.2014, the applicant had represented before the respondent authorities that he may be allowed to draw admissible HRA vide DoP&T's Office Memo dated 24.9.2003 and preferred several reminder representations in this regard. As the respondent authorities did not take any steps to refund the recovered amount to the applicant, being aggrieved, the applicant has approached the Tribunal, claiming the aforementioned relief.
6. Learned Counsel for the applicant submits that the following two lines in the DOP&T OM dated 24.09.2003 make it amply clear that all employees who have been posted from outside the North Eastern region to this region are entitled to draw double HRA:
"6. Benefit of two HRAs .....................................
Those employees who have not been posted to the N-E Region from outside the N-E Region are not entitled to this benefit."
Learned counsel for the applicant submits that the applicant, in his earlier posting from where he had tendered technical resignation was outside the N- E Region. He had come on posting to Sikkim from outside the N-E Region. Therefore, in terms of the circular quoted above, he is entitled to the grant of two HRAs. He further submits that since the Tribunal failed to consider the above quoted provision contained in the DOP&T circular of 24.09.2003, it constitutes an error apparent on the face of the order and in view of the error on the face of the judgment, it deserves to be reviewed.
Learned counsel for the applicant submits that the applicant made attempts to find out whether any other employee or employees who were 6 RA 18/2019 IN OA 1800/2016 similarly situated as the applicant have been paid double HRA or not, but the authorities did not respond to his queries. Had this information been made available, it would have materially affected the outcome of the OA. Therefore, this should be treated as a new fact and the review allowed accordingly.
7. Learned counsel for the respondents points out that the reasons given by the tribunal in its judgment for its findings were that (i) the applicant was not transferred to Sikkim, rather, it was his first posting on fresh appointment and (ii) the applicant's family did not stay back in his previous place of work. The applicant stayed with his family in Gangtok. Learned counsel for the respondents submits that the para quoted by the applicant is to be read in conjunction with the rest of the contents of the DOP&T OM of 24.09.2003. Since the applicant was barred by the reasons mentioned above to claim double HRA, the tribunal had rightly ruled against him in its order dated 04.07.2019.
8. Heard both sides. Perused material on record.
8.1 Para XLVII of the Civil Procedure Code defines the scope of review of the decision by the same Court as follows :-
"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.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applied for the review.7 RA 18/2019 IN OA 1800/2016
1[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.]"
8.2 It is to be noted that the scope of review of an order passed by courts/Tribunal is very limited and the applicants cannot seek review for correction of the view taken earlier or for rehearing of the matter. The scope for Review Application is clearly defined in various orders of the Hon'ble Supreme Court. In the case of State of West Bengal & others v. Kamal Sengupta and another (2008) 8 SCC 612 the Hon'ble Apex Court held that the "Tribunal can exercise the powers of a Civil Court in relation to matters enumerated in clauses (a) to (i) of sub-section (3) of Section 22 of the Administrative Tribunals Act including the power of reviewing its decision". By referring to the power of a Civil Court to review its judgment/decision under Section 114 CPC read with Order 47 Rule 1 CPC, the Hon'ble Supreme Court further laid down the principles subject to which the Tribunal can exercise the power of review. In this regard, it is appropriate to refer para 28 of the said judgment which reads as under :-
"(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 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 8 RA 18/2019 IN OA 1800/2016 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."
In another judgment passed in Union of India v/s Tarit Ranjan Das 2004 SCC (L&S) 160 the Hon'ble Supreme Court while dealing with the order passed in Review Application held in paragraph 13 as under:
"The Tribunal passed the impugned order by reviewing the earlier order. A bare reading of the two orders shows that the order in review application was in complete variation and disregard of the earlier order and the strong as well as sound reason contained therein whereby the original application was rejected. The scope for review is rather limited and it is not permissible for the forum hearing the review application to act as an appellate authority in respect of the original order by a fresh and rehearing of the matter to facilitate a change of opinion on merits. The Tribunal seems to have transgressed its jurisdiction in dealing with review petition as if it was hearing original application. This aspect has also not been noticed by the High Court."
Further, Hon'ble Apex Court in R.A.(Crl.) No.453 of 2012 [Writ Petition (Crl.) 135 of 2008 - Kamlesh Verma vs. Mayawati and Ors. held vide its judgment dated 8th August, 2013, as under:-
"(13) In a review petition, it is not open to the Court to re-appreciate the evidence and reach a different conclusion, even if that is possible. Conclusion arrived at on appreciation of evidence cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. This Court, in Kerala State Electricity Board vs. Hitech Electrothermics & Hydropower Ltd. & Ors., (2005) 6 SCC 651, held as under:
"10........In a review petition it is not open to this Court to re- appreciate the evidence and reach a different conclusion, even if that is possible. Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on question of appreciation of evidence would amount to converting a review petition into an appeal in disguise."9 RA 18/2019 IN OA 1800/2016
14) Review is not re-hearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to re-open concluded adjudications. This Court, in Jain Studios Ltd. vs. Shin Satellite Public Co. Ltd., (2006) 5 SCC 501, held as under:
11.So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.
12. When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of "second innings" which is impermissible and unwarranted and cannot be granted."
15) Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction." In Parsion Devi &Ors. vs. Sumitri Devi &Ors., (1997) 8 SCC 715 the Hon'ble Apex Court opined that:-
"9. 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 I 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".
(Emphasis added) 8.3 Bearing in mind the above dicta as laid down by the Hon'ble Supreme Court, it can be seen that existence of an error on the face of the record is sine qua non for review of an order. It is not permissible for the Courts/Tribunal to hear the review application to act as an Appellate Authority in respect of 10 RA 18/2019 IN OA 1800/2016 the original order by a fresh hearing of the matter to facilitate a change of opinion on merits.
8.4 In its order in OA No. 350/1800/2016 the Tribunal had referred to the OM dated 24.09.2003. The relevant contents of the OM including the two lines referred to by the applicant in his Review Application have been quoted in the order. The last two lines are not to be read in isolation. They are a part of the OM of 24.09.2003 which has been discussed at length in the order. Merely being from outside the N-E Region does not make him eligible for the aforesaid benefit if the applicant did not fulfill the other conditions for claiming two HRAs as per the said OM. It cannot be said that the order did not take into consideration the last two lines of the OM. Since the applicant did not fulfill the conditions stipulated in the OM, there was no need for the tribunal to specifically go into the issue of his belonging to a place outside of N-E Region.
8.5 Learned counsel for the applicant's submission that some other employee or employees who were similarly situated as the applicant may have been paid double HRA, in the absence of any documentary proof to the effect, is a mere conjecture, and does in no way constitute a new fact discovered subsequent to the passing of the judgment. 11 RA 18/2019 IN OA 1800/2016 8.6 In the light of the discussion above, we do not find any merit in the applicant's submission that error apparent exists on the face of records or new facts have come to light after the decision of the tribunal in OA No. 1800 of 2016.
9. The Review Applications stands dismissed for lack of merit. No costs.
(Suchitto Kumar Das) (Urmita Datta (Sen)) Administrative Member Judicial Member sl