General Manager And Others vs Ishwar Dass

Raj Vir Sharma, Member (J)

I have perused the records of OA No.4286 of 2013 and of the present RA, and have heard Mr. S.M.Arif, learned counsel appearing for the respondent-review petitioners, and Mr.G.D.Bhandari, learned counsel appearing for the applicant-opposite party.

2 The review petitioners were respondents in OA No.4286 of 2013. The present review application has been filed by them under Rule 17 of the Central Administrative Tribunal (Procedure) Rules, 1987 read with Section 22(3)(f) of the Administrative Tribunals Act, 1985, seeking review of the order dated 17.2.2015 passed by the Tribunal in OA No.4286 of 2013.

In OA No.4286 of 2013 it was the case of the applicant (opposite party in the present RA) that he had worked as a Casual Labour from 28.5.1976 to 10.8.1981 in the Railway Electrification and Horticulture units of the Northern Railway. Thereafter, the Northern Railway appointed him as a Substitute Diesel Khalasi, vide order dated 7.12.1981, and he joined as a Substitute Diesel Khalasi on 26.12.1981. On his having qualified the screening test, the Northern Railway regularized his service in Group D post with effect from 30.4.1987. He was subsequently promoted from Group D post to the post of LDC and to the posts of Senior Clerk, Assistant Superintendent, and Office Superintendent. While holding the post of Office Superintendent, the applicant retired from service on 30.4.2013 on attaining the age of superannuation. When the applicant found from his Pension Payment Order that his total qualifying service was determined at 28 years, 8 months and 2 days, and the date of his appointment was shown as 30.4.1987, instead of 26.12.1981, he made representations requesting the Railway authorities to correct the PPO and re-determine the total period of his qualifying service and to re-fix his pension, etc.. The Northern Railway, vide communication dated 28.6.2013, turned down the applicant‟s request and stated that the total period of his qualifying service was correctly shown in the PPO. Thus, being aggrieved, the applicant filed OA No.4286 of 2013 praying for quashing of the said communication/letter dated 28.6.2013 and also for directing the Northern Railway to correctly determine the total period of his qualifying service by taking into account 50% of his service as Casual Labour from 28.5.1976 to 16.12.1981 and 100% of his service as Substitute Diesel Khalasi from 26.12.1981 from 29.4.1987, followed by his regular service from 30.4.1987 in different posts till the date of retirement for the purpose of retirement benefits. He also prayed for payment of interest on the difference in pension and other retirement benefits.

The respondent-review petitioners, in their counter reply, did not dispute the applicant‟s statement that he had worked on daily rated/casual basis during the period from 28.5.1976 to 10.8.1981. It was asserted by the respondent-review petitioners that 50% of service of the applicant as Substitute Diesel Khalasi from 26.12.1981 to 29.4.1987 and the applicant‟s 100% regular service from 30.4.1987 till the date of his retirement, i.e., 30.4.2013, were taken into consideration by them to determine the total period of his qualifying service as per rules and instructions issued by the Railway Board, and the total period of his qualifying service was correctly determined and shown in the PPO.

After considering the materials available on record and upon hearing the learned counsel appearing for the parties, the Tribunal allowed OA No.4286 of 2013, vide order dated 17.2.2015, the operative portion of which is reproduced below:

"7. In view of the above position, I allow this O.A. and direct the respondents to re-determine the qualifying service of the applicant by counting his 50% of the casual service and 100% of the substitute service and then re-determine his pensionary benefits. The detailed calculation sheet of the qualifying service and compilation of pensionary benefits shall also be furnished to the applicant. He shall also be paid the difference in pensionary and other terminal benefits with 9% interest p.a. within a period of two months from the date of receipt of a copy of this order."

Hence, the respondent-review petitioners filed the present RA seeking review of the Tribunal‟s order dated 17.2.2015(ibid).

MA Nos.3314 and 3315 of 2016 were filed by the respondent-review petitioners seeking condonation of delay in filing and re -filing of the RA. Considering the facts that the respondent-review petitioners had to consult different Departments before taking a final decision to file Review Application, and that the files and relevant papers were found missing in the office of the learned counsel appearing for the respondents, I condone the delay in filing and re-filing of the RA. Accordingly, MA Nos.3314 and 3315 of 2016 are allowed.

Before adverting to the contentions raised by the respondent-review petitioners, it would be apposite to deal with some of the important case-laws on the subject of review of decisions by courts and tribunals.

In Ajit Kumar Rath v. State of Orissa and others, (1999) 9 SCC 596, the Hon‟ble Supreme Court has held that 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. Any other attempt, except an attempt to correct an apparent error, or an attempt not based on any ground set out in Order 47 of the Code of Civil Procedure, would amount to an abuse of the liberty given to the Tribunal under the Act to review its judgment.

In Union of India v. Tarit Ranjan Das, 2004 SCC (L&S) 160, the Hon‟ble Supreme Court has held that the scope for review is rather limited, and it is not permissible for the forum hearing the review application to act as an appellate court in respect of the original order, by a fresh order and rehearing the matter to facilitate a change of opinion on merits.

In State of West Bengal and others v. Kamal Sengupta and another, (2008) 2 SCC (L&S) 735, the Hon‟ble Apex Court has scanned its various earlier judgments and summarized the following principles:

"35. The principles which can be culled out from the above-noted judgments 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 CPC.

(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."

The Hon‟ble Supreme Court, in Kamlesh Verma vs.Mayawati & others, 2013(8) SCC 320, has laid down the following contours with regard to maintainability, or otherwise, of review petition:

"20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

20.1 When the review will be maintainable:

i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

ii) Mistake or error apparent on the face of the record;

iii) Any other sufficient reason.

The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki (AIR 1922 PC 122) and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius (AIR 1954 SC 526) to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India vs. Sandur Manganese & Iron Ores Ltd. (23013(8) SCC 337).

20.2 When the review will not be maintainable:

i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

ii) Minor mistakes of inconsequential import.

iii) Review proceedings cannot be equated with the original hearing of the case.

iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

vi) The mere possibility of two views on the subject cannot be a ground for review.

vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."

Keeping the above enunciation of law in mind, let me consider the claim of the review petitioners and find out whether a case has been made out by them for reviewing the order dated 17.2.2015 (ibid) passed in OA No.4286/13.

13 In support of their claim for review of the order dated 17.2.2015(ibid), the respondent-review petitioners have contended, inter alia, that the letter appointing the applicant-respondent as a Substitute Diesel Khalasi, which was placed by the applicant-respondent before the Tribunal, is not available in their office record, that there is also no record to show that the applicant had worked „on project works of Northern Railway w.e.f. 28.05.1976 to 10.8.1981‟, and that 50% of service of applicant as Casual Labour and 100% of service of applicant as Substitute Diesel Khalasi cannot be counted to determine the total qualifying service of the applicant under the rules and instructions issued by the Railway Board. Therefore, the order dated 17.2.2015(ibid) is liable to be reviewed as there are errors apparent on the face of it.

After going through the order dated 17.2.2015(ibid), I have found that the coordinate Bench of the Tribunal has duly considered all the relevant pleadings of the parties and the submissions made by the learned counsel appearing for them. The contentions, as now raised by the respondent-review petitioners in the present R.A., have been overruled by the Tribunal, vide order dated 17.2.2015(ibid). Following the decision of the Hon‟ble High Court of Andhra Pradesh in Writ Petition No.10837 of 2011 (General Manager, South Central Railway Vs. Shaik Abdul Khader), in which some of the decisions of the Hon‟ble Supreme Court and of the Tribunal have been referred to, the coordinate Bench of the Tribunal has allowed the O.A., vide order dated 17.2.2015(ibid). A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. The appreciation of evidence/materials on record, being fully within the domain of the appellate court, cannot be permitted to be advanced in the review petition. In a review petition, it is not open to the Tribunal to re-appreciate the evidence/materials and reach a different conclusion, even if that is possible. Conclusion arrived at on appreciation of evidence/materials and contentions of the parties, which were available on record, cannot be assailed in a review petition, unless it is shown that there is an error apparent on the face of record or for some other reason akin thereto. The review petitioners have not shown any material error, manifest on the face of the order, dated 17.2.2015 (ibid), which undermines its soundness, or results in miscarriage of justice. If the review petitioners are not satisfied with the order dated 17.2.2015(ibid) passed by this Tribunal, remedy lies elsewhere. The scope of review is very limited. It is not permissible for the Tribunal to act as an appellate court.

In the light of above discussions, I have no hesitation in holding that the respondent-review petitioners have not been able to make out a case for review of the order dated 17.2.2015 passed in OA No.4286/13. Accordingly, the R.A. is dismissed. No costs.