Arun Kumar vs Union Of India

S.N. Terdal, J

We have heard Mr. M.S.Saini, counsel for review applicant and Mr. Shailendra Tiwary, counsel for respondents, perused the pleadings and all the documents produced by both the parties.

This is a Review Application seeking review of the order dated 9.10.2014 passed in OA No. 2164/2012. The applicant had filed Writ Petition (Civil) bearing no.4694/2015 before the Hon'ble High Court of Delhi challenging the above said order of this Tribunal dated 9.10.2014. At the time of hearing before the Hon'ble High Court, he submitted that he was able to secure certain documents in support of his case after the order passed by this Tribunal on 9.10.2014. On that basis, he sought permission of the Hon'ble High Court to file this Review Application alongwith the said additional documents. The order of the Hon'ble High Court dated 11.08.2016 is extracted below:-

"Learned counsel for the petitioner submits at the outset that after the matter was disposed of by the Tribunal, he has been able to lay his hands upon certain documents which would support his case to show that he was working against the post of Head Clerk and thus, he would be entitled to notional promotion. He submits that since these documents were not before the Tribunal, the Tribunal could not have decided the matter in his favour. He submits that he may be granted an opportunity to place these additional documents on record before the Tribunal and the Tribunal may be requested to grant a fresh hearing to the petitioner after granting an opportunity to the respondents as well.

In view of above, learned counsel for the petitioner seeks leave to withdraw this petition with liberty to file an application for review before the Tribunal along with the additional documents.

We have heard counsel for the parties. To meet the ends of justice, we dispose of the writ petition with leave to the petitioner to file an application for review before the Tribunal along with the additional documents on record. In case, the review application is filed within a period of two weeks from today before the Tribunal, the respondents would not raise the plea of limitation. The Tribunal would hear the review application in the open court.

This writ petition and the application stand disposed of in above terms."

The applicant has produced those documents regarding his postings from 1995 to 2010. He has further contended that in view of the law laid down by the Hon'ble Supreme Court in the case of Union of India Vs. K.V.Jankiraman (AIR 1991 SC 2010), the impugned order dated 27.03.2012/11.04.2012 is not supported by cogent reasons. In support of his contention, the counsel for the applicant has relied upon the following judgments of the Hon'ble Supreme Court:

(1) State of Kerala & Ors. Vs. E.K.Bhaskaran Pillai (JT 2007 (6) SC 83) (2) Joginder Singh Vs. Union Territory of Chandigarh and thers (2015) 2 SCC 377). We have perused the order dated 09.10.2014. After discussing the law laid down by the Hon'ble Supreme Court in the case of K.V.Jankiraman (supra) and perusing the pleadings and after hearing both the parties at length this Tribunal disposed of the OA in the following terms:

"9. We, in the above facts and circumstances, do not find any merit in the submission of the Applicant that impugned order dated 11.04.2012 deserves to be quashed and set aside. Consequently, the decision of the Respondent to grant the Applicant only proforma promotion as Head Clerk (now Office Superintendent) w.e.f. 28.06.1997 and actual promotion w.e.f. 13.12.2010 cannot be faulted. However, since the Respondents have revoked the suspension of the Applicant from 08.07.1995 to 22.12.1995, he is entitled for increments from the due date, i.e. 01.05.1995 with all monetary benefits. The said benefits shall be given to the Applicant refixing his pay, if it has not already been done. As regards financial benefit under the MACP Scheme is concerned, the Respondents shall consider the same as prayed for by the Applicant and grant the same in accordance with the Rules. The aforesaid directions shall be complied with, within two months from the date of receipt of a copy of this order. Accordingly, this OA is disposed of. There shall be no order as to costs."

In the reply to this Review Application, the respondents have categorically stated and referred to various Government orders on the basis of which they have passed the impugned order which was challenged in the OA 2164/2012. The relevant paragraphs of the reply to the review application are extracted below:

"4. It is submitted that the applicant herein along with another Railway employee Sh. Nathu Lal Meena was arrested under section 409 IPC in case FIR No. 165/1995 by SHO/DRP/Delhi (PS RMD) and was consequently placed under suspension w.e.f. 08.07.1995. While the criminal case was challenged in the court, deptt proceedings were carried out simultaneously on the same issue/similar charge. Deptt proceedings so finalized were challenged in the Hon'ble CAT/New Delhi vide OA No. 636/2010 which was allowed and decided in favour of the applicant vide order dt. 23.08.2010.

It is submitted that subsequently the applicant filed a contempt petition CP no. 464/2011 in OA No. 636/2010. Having perused the compliance of its orders the Hon'ble Tribunal CAT disposed it of vide order dt. 16.07.2011 and notice were discharged. The applicant could not be given promotion at that time as he was facing criminal case in the case FIR No. 165/1995 (PS RMD). Therefore he was given liberty by Hon'ble CAT vide order dt 16.07.2011 to file representation giving the latest development.

It is submitted that the applicant had filed his representation dt. 14.08.2011 seeking promotion and re-fixation of his pay. In the criminal case pending against him the applicant was acquitted of the charge by extending him the benefit of doubt. Since he was acquitted by giving him the benefit of doubt, the applicant though promoted as Head clerk from his due date of promotion against the reserved point for SC but the fixation of pay on promotion as head clerk w.e.f. 28.06.1987 was made on Performa basis in terms of instruction issued in GM(P) New Delhi Printed Serial No.10738.

It is submitted that the applicant also sought relief for decided his suspension period w.e.f. 08.07.201995 to 22.12.1995 was decided as spent on duty vide this office order no. 196 dt. 21.09.2012. As far as concerned arrears of pay on promotion w.e.f. 28.06.1987 is concerned the same has not been allowed as per instruction issued by GM(P) N.Rly New Delhi Printed serial No. 10738."

From the perusal of the impugned order dated 9.10.2014 and the averments made in the reply affidavit extracted above and also going through the additional documents produced by the applicant, it is crystal clear that no grounds for reviewing the said order dated 9.10.2014 is made out.

The scope of review lies in a narrow compass as prescribed under Order XLVII, Rule (1) of CPC. None of the grounds raised in the RA brings it within the scope and purview of review. It appears that the review applicant is trying to re-argue the matter afresh, as if in appeal, which is not permissible. If in the opinion of the review applicant the order passed by the Tribunal is erroneous, the remedy lies elsewhere. Under the garb of review, the review applicant cannot be allowed to raise the same grounds, which were considered and rejected by the Tribunal while passing the order under review.

Existence of an error apparent on the face of the record is sine qua non for reviewing the order. The review applicant has failed to bring out any error apparent on the face of the order under review.

On the power of the Tribunal to review its own orders, the Hon'ble Supreme Court has laid down clear guidelines in its judgment in the case of State of West Bengal & others Vs. Kamal Sengupta and another, [2008 (3) AISLJ 209] stating therein that "the Tribunal can exercise powers of a Civil Court in relation to matter enumerated in clauses (a) to

(i) of sub-section (3) of Section (22) of Administrative Tribunal Act including the power of reviewing its decision."

At Para (28) of the judgment, the principles culled out by the Supreme Court are as under:-

"(i) The power of Tribunal to review it 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 specific grounds

(iv) An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as a error apparent in the fact of record justifying exercise of power under Section 22(2) (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 a larger bench of the Tribunal or of a superior court.

(vii) A decision/order cannot be reviewed under Section 22(3)(f).

(viii) 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.

(ix) 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 view of the facts and circumstances of the case and in view of the law laid down by the Hon'ble Supreme in the above stated case and also as the law down by the Hon'ble Supreme Court in the cases of E.K.Bhaskaran Pillai and Joginder Singh (supra) is not applicable in the present case, accordingly, the RA is dismissed.