Central Administrative Tribunal - Bangalore
Union Of India (Uoi) And Ors. vs R. Umashankar And Ors. on 27 March, 2003
Equivalent citations: 2004(1)SLJ128(CAT)
ORDER Mukesh Kumar Gupta, Member (J)
1. The petitioners seek review of an order dated 9.1.2000 passed by a Bench of this Tribunal in O.A.Nos. 1421 and 1428-1439/ 2000. The order dated 9.1.2001 passed in the aforesaid O.As. had been carried by the petitioners to the High Court of Karnataka in W.P. No. 17090 and 24246-24257/02, which writ petitions were dismissed vide order dated 24.6.2002. However, an observation was made by the High Court that if the petitioners had any grievance they can approach this Tribunal for review of its order and hence the present R.As.
2. The basic grounds urged in support of the review applications are: (a) that the order passed by this Tribunal on 9.1.2002 is not on merits of the case and contrary to the O.M. dated 18.3.1974 issued by the Ministry of Defence; (b) that Hyderabad Bench of this Tribunal had dismissed similar kind of O.A. which "were not within the knowledge and, therefore, the same could not be produced at the time when the order was passed" and (c) grant of advance increments to Engineering graduates appointed for the post in question had been withdrawn by the Ministry of Defence by O.M. dated 18.3.1974.
3. The following reliefs have been prayed for in the said review petitions:
"(1) review the earlier Tribunal order dated 9.1.2001 passed in the above applications in O.A. Nos. 1424 and 1428 to 1439/2000 and overrule the same and (2) to declare that the respondents are not entitled to grant of three advance increments from the date of passing of or acquiring AIMS/BE degree examination; and (3) further to reject the prayer sought for by the respondents in the above petitions, and (4) to grant such other relief as this Hon'ble Tribunal deems fit to grant in the facts and circumstances of the case and costs of the applicants, in the interest of justice."
Besides the above, the petitioners have also filed M.A. No. 384/2002 seeking condonation of delay in filing the said review petition. It is stated therein that there has been a delay of 17 days, which is bona fide and not intentional. Some facts needs to be noticed on this aspect, at this stage. The O.As. were disposed of vide order dated 9.1.2001. The respondents there in (i.e., Applicants in O.A.) have filed C.P. No. 55-62/01 on 28.6.2001, an affidavit dated 21.9.2001 was filed by the sixth petitioner herein in the said CPs and accordingly the order dated 9.1.2001 was complied with. W.P. No. 17090/ 02 and other connected petitions challenging the order dated 9.1.2001 were filed sometime in March 2002 and the said writ petition was dismissed vide order dated 24.6.2000. According to the petitioners they had applied for certified copy and the same was obtained on 12.7.2002. Thereafter the said certified copy was forwarded to the Government for taking its opinion and subsequently it was decided to file the present R.As. It is contended that since the Review Applicants are not private individuals but the Government and hence there is some delay in filing R.As. due to time taken for discussion and communication.
4. Notices were issued in the said R.As. as well as M.A. No. 384/02. The applicants in the O.A. and the respondents herein have filed their statement of objections opposing condonation of delay and urged that there is no sufficient cause to condone the delay besides there is no error apparent on the face of the record.
5. Before we proceed to deal with R.A., we would like to deal with the M.A. first. We have heard learned Counsel for parties at length on M.A. No. 384/02. Learned Counsel for the petitioners has drawn our attention to 1996(3) SCC 132, State of Haryana v. Chandra Mani and Ors., and contended that in the facts and circumstances of the present case, the aforesaid delay, which is not intentional and is bona fide, deserves to be condoned. It would be relevant to quote para 11 of the said judgment which reads as under:
"11. It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court--be it by private party or the State --are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatric that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay--intentional or otherwise--is a routine. Considerable delay of procedural red-tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause." should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the Courts or whether cases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. Considered from this perspective, it must be held that the delay of 109 days in this case has been explained and that it is a fit case for condonation of delay.
The aforesaid case of Chandra Mani had considered in detail various judgments of the Hon'ble Supreme Court i.e. Collector of Land Acquisition v. Katiji, 1987(2) SCC 107; O.P. Katpalia v. Lakhmir Singh, 1984 (4) SCC 66; Brij Inder Singh v. Kanshi Ram, AIR 1917 Privy Council 156; G. Rame Gowda v. Special Land Acquisition Officer, 1988(2) SCC 142 and host of other judgments.
6. On the other hand learned Counsel for the respondents (applicants in the O.A.) has vehemently contended that the petitioners have made a factually incorrect and misleading statement that there is a delay of 17 days in filing the review applications. It is contended that Rule 17 of the CAT (Procedure) Rules, 1987, did not confer power to condone the delay. Unless the review application is filed within a period of 30 days as prescribed under the said rules, it is liable to be dismissed. The respondents have also urged that the petitioners in the review applications have not come with clean hands. The reasons assigned for delay are vague and not proper. It has further been urged that once an order passed by this Tribunal in the aforementioned O.As. have been implemented on initiation of contempt proceedings and thereafter carried in Writ Petitions to the High Court. It is not open to petitioners to file the present R.As. Learned Counsel for the respondents Mr. N.G. Phadke has strenuously urged that in view of the law laid down by the Hon'ble Supreme Court in 1997(6) SCC 473=1998(1) SLJ 85 (SC), K. Ajit Babu and Ors. v. Union of India and Ors., the right of review is not a right of appeal where a question decided are open to challenge and review is possible only on limited grounds. It is urged with reference to para 4 of the said judgment that right of review is available if such an application is filed "within the period of limitation." In other words, it is contended, that unless the review application is filed within a period of 30 days as prescribed under Rule 17 of the Rules, filing of the review application after the said period is not maintainable at all and there is no power available to this Tribunal to condone the delay. Learned Counsel has also drawn our attention to the provision of Section 10(4A) of the Industrial Disputes Act, 1947, wherein six months time is prescribed to apply to Labour Court for adjudication of the disputes. In this context reliance has also been placed on ILR 2002 Kar. 3827 (Division Bench), Karnataka State Road Transport Corporation v. Khaleel Ahmed and Anr., particularly paras 24 and 25 which deals with the subject of rules of interpretation of the statute. In the said para the High Court after taking note of the Constitution Bench judgment of the Hon'ble Supreme Court in Sail v. National Union Water Front Workers, 2001(5) Scale 626 has held that there is no ambiguity in the language used by the legislature under Section 10 (4A) of the Industrial Disputes Act specifying the time frame within which only an application can be filed by a workman for being entertained by the Labour Court and it is not permissible for the Court to dilute the provisions providing time frame on the basis of supposed legislative policy. There cannot be a dispute on the settled law that the function of the Court is to interpret the statute to ascertain the intent of the legislature-Parliament.
7. Section 22(3) of the Administrative Tribunal Act, 1985 deals with the limitation aspect and confers a power on this Tribunal to condone the delay wherever it is found that there had been a "sufficient cause" in filing a belated application. The word "application" has to be read liberally and in our considered opinion would include the review application also for the simple reason that review application is continuation of proceeding of the original application filed under Section 19 of the Act. Moreover a Full Bench of this Tribunal in Nandlal Nichani and Ors. v. Union of India, CAT Full Bench Judgments Volume II pages 85 (Principal Bench) has considered Rule 17 of the CAT (Procedure) Rules, 1987 and it has been held that this Tribunal has power to condone the delay in filing the review petitions. The relevant extracts of the said judgment reads as under:
"39. As far as the power of the Tribunal to condone the delay in the filing of a Review Application is concerned, the well established principles of law laid down by the Supreme Court in regard to the term 'sufficient cause' has to be followed."
We are bound by the Full Bench judgment and as such are of the considered view that the Tribunal has power to condone the delay in filing a review application. In K. Ajit Babu's case the Hon'ble Supreme Court didn't consider the question about the power and jurisdiction to condone the delay in filing belated Review Application. As such the said judgment is of no assistance. Similarly the Division Bench judgment of Karnataka High Court in Khaleel Ahmed's (supra) is not applicable in the facts and circumstances of the case. Accordingly the contention raised by the respondents is overruled.
8. No doubt the review applicants contention that there had been delay of 17 days in filing the present R.As., as stated in M.A. No. 384/02, is not factually correct. The order which is sought to be reviewed is dated 9.1.2001, while the present R.As. were filed on 30.8.2002. As such there is a delay of about 1 1/2 year from the date of judgment in the O.A. Though the High Court dismissed the Writ Petition on 24.6.2002, yet the R.As. were filed only on 30.8.2002 i.e., after more than two months thereafter. As held by the Hon'ble Supreme Court in aforementioned judgments, liberal approach has to be followed in condonation of delay, ascertain amount of latitude is not impermissible as noted hereinabove. The expression 'sufficient cause' should be considered with pragmatism rather than technically detection of sufficient cause for explaining every day's delay. On examination of the entire facts we are of the view that in the facts and circumstances of the present case, the delay caused in filing the present R.As. deserves to be condoned. Accordingly we allow the M.A. No. 384/02.
9. On merits, the review applicants/petitioners have raised basically three contentions: (1) that the order passed by this Tribunal on 9.1.2001 is not on merits. (2) that based on Government of India letter dated 18.3.1974 and the Hyderabad Bench judgment in O.A. No. 1190/91 dated 22.2.1995, the respondents herein were not entitled to advance increments and they were entitled to only lump-sum amount as incentive under the new scheme; (3) that the grant of advance increment to the respondents herein would open pandora box inasmuch as there are several other employees similarly situated who have not approached the Tribunal/Court would be entitled to the same benefit and extension of relief, and, this will also result in huge financial loss to the Government.
10. Before proceeding further it would be relevant at this stage to note the order dated 9.1.2001 which is sought to be reviewed, reads as follows:
"Counsel on both sides submit that the claims of the applicants in this case are squarely covered by the order of the Ernakulam Bench of the C.A.T. passed in O.A. No. 755/1997 on 7th October, 1999 and that the respondents in compliance of the said order have also implemented the claims of the applicants therein.
2. In view of the above submission made by the Counsel of both sides, all these O.As. are disposed of accordingly. Respondents are directed to implement the orders within sixty days from the date of receipt of a copy of this order. No costs."
A perusal of the above order will show that the petitioners contention that the said order is not passed by this Tribunal on merits is, in our considered view, misplaced. What has been done in passing the said order dated 9.1.2001 is that relief granted in the identical facts and circumstances by Ernakulam Bench had been extended to the applicants in the aforesaid O.As. It is settled law that similarly situated officials are entitled to extension of similar relief. Since the facts and claim of applicants in O.A. were fully covered by the order passed by Ernakulam Bench, and there was no occasion to differ with the said order of the Ernakulam Bench, the Bench of this Tribunal applied and followed the said orders. It is an admitted fact that the order passed by Ernakulam Bench had been implemented by the respondents prior to the filing of the O.A. Nos. 1421 and 1428 to 1439/2000. Annexure A-3 dated 30.3.2000 which had been placed in the aforementioned O.A. is a testimony to the said fact. Therefore, it is not correct to contend that the order dated 9.1.2001 was not based on merits. Accordingly the first contention raised by the applicants is overruled.
11. The second contention raised by the review applicants/petitioners is that the benefit of advance increments based on educational qualification were withdrawn by Government of India order dated 18.3.1974. Except for making a general statement in the reply statement filed in the above mentioned O.As. in para 4C to the effect that Government order for grant of three advance increments has been ceased from 1.12.1973 as per MOD letter dated 18.3.1974, no efforts were made by the review applicants/respondents in O.A. to place the said document on record or to make any submission at the time of hearing. The Hyderabad Bench judgment dated 22.2.1995 was neither pleaded nor placed on record by the review applicants in the O.A. Nos. 1421 and 1428 to 1439/00. It is very interesting to note at this stage that even in the writ petition filed by the review applicants there is no mention of the said judgment. We have read and re-read the said writ petition, copy of which was made available to us by the learned Counsel for the petitioners. Though the said judgment of the Hyderabad Bench dated 22.2.1995 has been made the major plank for seeking review of the order dated 9.1.2001 and much arguments have been made on the said aspect, we find that was not even made the basis in pleadings of the said Writ Petitions. The review applicants in ground (b) of the R.As. have stated that the said notification/order of the Central Government and the judgment of this Tribunal, Hyderabad Bench, were not within the knowledge and, therefore, the same could not be produced at the time when the order was passed" speaks for itself. It is a sad aspect on the part of the Union of India to contend that they did not have either the knowledge of the said order passed in 1995 or the copy of their own order was not available with them either in the year 2001 when the aforementioned O.As. were heard and disposed of or in March 2002 when the aforementioned writ petitions were preferred before the High Court of Karnataka, As already observed the Hyderabad Bench order was not even mentioned by the petitioners in the said writ petition, then how could it be made the basis for seeking review? The judgment passed by the Ernakulam Bench dated 7.10.1999, which was part of the O.A., being Annexure A-2, had considered all aspects of the case including the circular No. 14030 1/1/554/EIB(O) dated 1.6.1996 issued by the Chief Engineer, Southern Command, Pune, Ministry of Defence letter No. 3(1)/73/2236 dated 18.3.74. Ministry of Personnel, Public Grievances and Pensions O.M. No. 1/2/89-Estt. (Pay-I) dated 31.1.95 and Ministry of Defence ID No. 15(3)/93/D(Civ.I)-II dated 21.4.95, some of which were subsequent developments to the judgment and order rendered by the Hyderabad Bench of this Tribunal. It is not in dispute that order passed by Ernakulam has been implemented and attained finality as till date the said order has not been assailed before any higher Court. Therefore, this contention of review applicants has no force.
12. Coming to the third contention that the grant of relief to the respondents herein would open a pandora box and would cause heavy financial loss to the Government, we are of considered review that such a submission could not be a ground for seeking a review especially in the facts and circumstances of the present case.
13. Learned Counsel for the respondents herein, has strenuously contended that unless there is an error apparent on the fact of the record which strikes one on mere looking at the record and would not require any long drawn reasoning, the jurisdiction of this Tribunal to seek review cannot be invoked. Our attention has been drawn in this respect to a judgment of the Hon'ble Supreme Court in 1995( 1) SCC 170, Meera Bhanja v. Nirmala Kumari Choudhary, which reads as under:
"The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rules. CPC.
In the aforesaid case the Hon'ble Supreme Court after noticing the observations made in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389 (SCC p. 390 para 3) further 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 subordinate Court." (Emphasis supplied)
14. The only ground urged in the present review application is that there had been an error apparent on the face of the records and not on any other ground. The Hon'ble Supreme Court in para 9 of the aforesaid judgment of Meera Bhanja held as under:
"9..... So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayanan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale wherein K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record:
An error which has to be established by a long-drawn 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 such a writ." (Emphasis supplied) In our respectful view the aforesaid judgment and the law laid down by Hon'ble Supreme Court squarely applies to the facts of the present case.
The power of review is not to be confused with the appellate power which may enable an Appellate Court to correct all minor errors committed by the subordinate Court, is the settled law laid down by the Supreme Court. In AIR 1975 SC 1500, SOW. Chandra Kanta and Anr. v. Sheik Habib, the Hon'ble Supreme Court observed as follows:
"Mr. Daphtary, learned Counsel for the petitioners has argued at length all the points which were urged at the earlier stage when we refused special leave thus making out that a review proceeding virtually amounts to a re-hearing. May be, we were not right in refusing special leave right in the first round but once an order has been passed by this Court, a review thereof must be subject to the rules of the game and cannot be lightly entertained. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.
A mere repetition through different Counsels of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient." (Emphasis supplied)
15. In AIR 2002 SC 2357, Subhash v. State of Maharashtra, it has once again been reiterated that:
"3. The scope for consideration before the Tribunal was very limited. Inasmuch as this Court had found that the appellant did possess the necessary qualification as per the Rules and the Tribunal having found he was entitled for appointment in Original Application No. 94/1995, there is no justification for the Tribunal to have review the matter once over again particularly, when the scope of review is very much limited under Section 22(3)(f) of the Administrative Tribunals Act, 1985 as is vested in a Civil Court under the Code of Civil Procedure. The Tribunal could have interfered in the matter if the error pointed out, is plaint and apparent. But the Tribunal proceeded to re-examine the matter as if it is an original application before it. This is not the scope of review.
4. In that view of the matter, we think the order on review made by the Tribunal needs to be set aside. It is ordered accordingly. The order dated 27.3.1995 made by the Tribunal on the Original Application No. 94/ 1995 shall stand restored. The appeal is allowed accordingly.
(Emphasis supplied) It is further settled law that a party is not entitled to seek a review of the judgment merely for the purpose of re-hearing and a fresh decision of the case. Learned Counsel for the petitioners was unable to point out such manifest error which strikes one on mere looking at the record and would not require any long drawn process of reasoning. Except for the contentions raised hereinabove which we have noted in detail, the learned Counsel for the petitioners was unable to explain as to how without re-hearing the matter we could find fault with the decision taken vide order dated 9.1.2001.
16. Order 47 Rule 1 CPC enables a Court/Tribunal to review an order and judgment on very limited aspects, which reads as under:
"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 a 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." (Emphasis supplied) In view of the law laid down by the Hon'ble Supreme Court review is possible only on limited grounds and is a serious step. It has not been explained as to why the review applicants were not able to produce the copy of the Presidential order dated 18.3.1974 as well as judgment passed by the Hyderabad Bench on 22.2.1995 particularly when the respondents herein were the parties before the Ernakulam Bench as well as Hyderabad Bench. It is an admitted fact that the direction issued by this Tribunal vide order dated 9.1.2001 had been complied with on the contempt proceedings vide CP No. 55-62/ 2001. Even at that stage the respondents did not point out any such manifest error, as contended now.
17. Accordingly we hold that there is no error apparent on the face of the record in order dated 9.1.2001.
18. In view of the findings recorded hereinabove we do not find any error apparent on the face of the record in order dated 9.1.2001 passed in O.As. No. 1421 and 1428 to 1439/2000. Accordingly the R.As. are dismissed.