Central Administrative Tribunal - Ernakulam
M/O Railways vs K John Rose on 12 October, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
R.A No.180/00053/2017 and MA 180/00852/2017
in
OA No. 180/00319/2014
Thursday this the 12th day of October, 2017
CORAM
HON'BLE MR. U. SARATHCHANDRAN, JUDICIAL MEMBER
HON'BLE MR. E.K. BHARAT BHUSHAN, ADMINISTRATIVE MEMBER
1 Union of India, represented by the
General manager, Southern Railway,
Headquarters Office, Park Town PO,
Chennai-600 003.
2 The Divisonal Railway Manager,
Southern Railway, Trivandrurm Division,
Trivandrum-695014.
3 The Divisional Personnel Officer,
Southern Railway,Trivandrum Division,
Trivandrum-695 014.
. . . Review Applicants/Respondents in OA
(By Advocate Mr. Thomas Mathew Nellimootil)
Vs.
K. John Rose, aged 56 years
S/o Kochumani, Trackman/Southern Railway/
O/o the Sr.Section Engineer/PWay/Nagercoil
Junction, Permanent address:
Thiruvandi Vilai Veedu,
Vilundiampuram Post,
Kanyakuamri District, Tamilnadu. ... Respondent/Applicant in OA
(By Advocate Mr. T.C.Govindaswamy)
This Review Application having been finally heard on 09.10.2017, the Tribunal on 12.10.2017
delivered the following:
ORDER
Per: E.K. Bharat Bhushan, Administrative Member By this Review Application No.53/2017, the Original Respondents in OA No.319/2014 has sought review of order dated 8.4.2016 on the ground that the order of this Tribunal is vitiated by error apparent on the face of the record. It is stated that this Tribunal travelled beyond the scope of the pleadings raised in the OA. They contend that there was no prayer in the original application to regularize the applicant's absorption with effect from 2003. Therefore, the declaration made by the Tribunal in the order at Annexure RA1 order that the applicant is entitled to get all service benefits with effect from the date his immediate junior was absorbed in service in 2003 is erroneous and unsustainable as there was no absorption of any of the juniors in the merged seniority list during the year 2003. There was no material available before the Tribunal to conclude that any of the juniors of the original applicant was absorbed in 2003. Moreover applicant also did not have any pleading to that effect. Review Applicants have complied with the directions to grant absorption with effect from the date of absorption of the applicant's juniors vide Annexure RA 2 to 4 Orders. Respondents prayed to review the order clarifying that the direction to grant absorption means that the same is to be granted from the date of absorption of the juniors and not from the year 2003.
2. The Review Applicants have filed MA No.852/2017 to condone the delay in filing the RA. It is stated in the MA that the Review Applicants have complied with the direction to grant absorption with effect from the date of absorption of applicant's juniors. But the absorption is not granted with effect from 2003. To clarify the point raised in para ante, the Review Application has been filed. There occurred some delay in filing the Review Application, which is not willful. Hence review applicants pray for condoning the delay of 380 days in filing the Review Application. 3 Shri Thomas Mathew Nellimootil, learned counsel appearing for the Review Applicants and Shri T.C.Govindaswamy, learned counsel appearing for the respondent (original applicant) have been heard and documents/pleadings perused. 4 The scope for a review application is clearly defined in various orders of the Hon'ble Supreme Court. The Hon'ble Supreme Court in the case of State of West Bengal & others v. Kamal Sengupta and another (2008) 3 AISLJ 209 has 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 laid down the principles subject to which the Tribunal can exercise the power of review. At para 28 of the said judgment the Hon'ble Supreme Court culled out the principles which 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 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.'' 5 Further, the Hon'ble Supreme Court in the case of Ajit Kumar Rath v. State of Orissa, (1999) 9 SCC 596 has categorically held that a matter cannot be heard on merit in exercise of power of review and if the order or decision is wrong, the same cannot be corrected under the guise of power of review. The scope for review petition and the circumstances under which such power can be exercised was considered by the Hon'ble Apex Court in Ajit Kumar Rath's case (supra) and held as under:
''The power of the Tribunal to review its judgment is the same as has been given to court under Section 114 or under Order 47 Rule 1 CPC. The power is not absolute and is hedged in by the restrictions indicated in Order 47 Rule 1 CPC. 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 of fact 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 CPC means a reason sufficiently analogous to those specified in the rule.''
6. We may also add that the Hon'ble Supreme Court in the case of Meera Bhanja (Smt) v. Nirmala Kumari Choudhury (Smt) (1995) 1 SCC 170 held 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, Rule 1, CPC. The review petition has to be entertained only on the ground of error apparent on the face of record and not on any other ground. 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. The limitation of powers of court under Order 47 Rule 1, CPC is similar to the jurisdiction available to the High Court while seeking review of the orders under Article 226.''
7 Further the Hon'ble Supreme Court in Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma and others - (1979) 4 SCC 389 : AIR 1979 SC 1047 held:
''3. . . . It is true as observed by this Court in Shivdeo Singh V. State of Punjab, AIR 1973 SC 1909 there is nothing in Article 226 of the Constitution to preclude a 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.''
8. The Hon'ble Supreme Court in Haridas Das V. Usha Rani Banik (Smt) and others - JT 2006(3) SC 526 held as under:
''Under O.47 R.1 CPC a judgment may be open to review inter alia if there is a msitake 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 O.47 R 1 CPC. In exercise of the jurisdiction under O.47 R.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''
9. The review applicants have failed to point out any error much less an error apparent on the face of record justifying the exercise of power under sub-clause (f) of sub-section (3) of Section 22 of the Administrative Tribunals Act, 1985. The review application deserves to be dismissed and accordingly, the same is dismissed. M.A. No.852/2017 for condoning the delay in filing the R.A also stands dismissed. No costs.
(E.K. Bharat Bhushan) (U. Sarathchandran)
Administrative Member Judicial Member
kspps
Review Applicants' Annexures
Annexure RA1 True copy of the order of the Hon'ble Tribunal,
Ernakulam bench dated 8th April, 2016 in OA No.180/00319/2014. Annexure RA2 True copy of the Memorandum No.V/P483/I/PW/NCJ dated 16.11.2016. Annexure RA3 True copy of the OO No.120/2004/WP 11.10.2004. Annexure RA4 True copy of the Memorandum No.V/P.483/1/PW1/NCJ dated 20.2.2017.
Respondent's Annexures
NIL
... PPS to Member