Kuldeep Kumar And Others vs Secretary And Others

Raj Vir Sharma, Member (J);

The review petitioners were applicants in OA No. 2240 of 2011. The present review application was filed by them on 9.2.2017 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 5.1.2017 passed by the Tribunal dismissing OA No.2240 of 2011 as being devoid of merit.

Resisting the R.A., the respondent-opposite parties have filed a counter reply.

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 in mind the principles laid down by the Hon'ble Apex Court in the above decisions, let us consider the claim of the review petitioners and find out whether a case has been made out by them for review of the order dated 5.1.2017 passed in OA No.2240 of 2011.

In support of their prayer for review  of the order dated 5.1.2017(ibid), the applicant-review petitioners have mainly asserted that during the course of hearing on OA No.2240 of 2011, their counsel pointed out to the Tribunal that no show-cause notices were issued to the applicants by the respondents before passing the impugned order, and, therefore, the Tribunal could dispose of the O.A. by setting aside the impugned order and giving liberty to the respondents to issue show cause notices before taking any decision. The learned counsel for the respondents took time to verify as to whether show-cause notices were issued to the applicants and to obtain consent of the concerned officer for setting aside the impugned order with liberty to take appropriate action after following principles of natural justice. Thereafter, on 16.11.2016, when the O.A. was taken up for hearing, Ms. Vertika Sharma, learned counsel appearing for the respondents, agreed to the submission made by the learned counsel appearing for the applicants, and accordingly, the Tribunal reserved the order. It has also been asserted by the review petitioners that their regular counsel Mr.M.K.Bhardwaj also pointed out the above position to the Tribunal and cited the judgment of the Hon'ble Supreme Court in Bhagwan Shukla Vs. Union of India and others in support of their case. Thus, it has been submitted by the review petitioners that when the learned counsel appearing for the parties in OA No.2240 of 2011 did not argue the matter in detail, the Tribunal ought not to have decided O.A. No.2240 of 2011 on merits without taking into consideration the aforesaid submissions of the learned counsel appearing for the parties. Therefore, the order dated 5.1.2017 (ibid) is liable to be reviewed as there is an error apparent on the face of it.

We have heard Mr.M.K.Bhardwaj, learned counsel appearing for the applicant-review petitioners, and Ms. Vertika Sharma, learned counsel appearing for the respondent-opposite parties.

Mr.M.K.Bhardwaj, learned counsel appearing for the applicant-review petitioners, besides reiterating the pleas/contentions raised by the review petitioners in the RA, drew the attention of the Tribunal to a show-cause notice dated 17.11.2017 issued by Sri Moti Lal, Senior Administrative Officer working under respondent no.4 calling upon the applicant-review petitioners to make representations in the matter within 15 days from the date of receipt of the show cause notice. Copy of the said show cause notice has been filed as Annexure A to the counter reply of the respondent-opposite parties. It was submitted by Mr.M.K.Bhardwaj that the said show-cause notice clearly fortifies the pleas/contentions raised by the review petitioners in the present R.A. and, therefore, the order dated 5.1.2017(ibid) is liable to be reviewed by the Tribunal.

Per contra, Ms. Vertika Sharma, learned counsel appearing for the respondent-opposite parties, submitted that detailed arguments were heard by the Tribunal, and O.A.No.2240 of 2011 was rightly decided by the Tribunal on merits, and, therefore, there is no error apparent on the face of the order dated 5.1.2017(ibid).

After going through the records of OA No.2240 of 2011, we have found that none of the orders passed by the Tribunal on the dates, when O.A.No.2240 of 2011 was placed before the Bench for hearing reflects the purported submissions of the learned counsel appearing for the parties as now asserted by the review petitioners. After considering the pleadings of the parties, and upon hearing the learned counsel representing them, the Tribunal, by order dated 5.1.2017 (ibid), dismissed OA No.2240 of 2011 as being devoid of merit. In paragraph 3 of the order dated 5.1.2017 (ibid), the Tribunal duly took note of the decision of the Hon'ble Supreme Court in Bhagwan Shukla Vs. Union of India and others, (1994) 6 SCC 154. The applicants' plea of non-affording of an opportunity to them for making representation was duly considered by the Tribunal while passing the order dated 5.1.2017(ibid). The purported show-cause notice, to which the attention of the Tribunal has been drawn by Mr.M.K.Bhardwaj, learned counsel appearing for the review petitioners, was issued by the Senior Administrative Officer working under respondent no.4 only on 17.11.2017, i.e., after ten months of disposal of O.A.No.2240 of 2011, vide order dated 5.1.2017(ibid), and after nine of months of filing of the present R.A. Sub-section (2) of Section 22 of the Administrative Tribunals Act, 1985, stipulates that Tribunal shall decide every application made to it as expeditiously as possible and ordinarily every application shall be decided on a perusal of documents and written representations and after hearing such oral arguments, as may be advanced. Thus, it cannot be said that the Tribunal is bound to decide or dispose of any application made to it solely on the basis of any oral submission made by learned counsel for a party. The Tribunal is also not bound to act on any submission made by the learned counsel appearing for a party, if such submission runs counter to the written representation/pleading of that party. In the above view of the matter, we have found no substance in the pleas/contentions raised by the review petitioners. 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 the record or for some reason akin thereto. The applicant-review petitioners have not shown any material error, manifest on the face of the order, dated 5.1.2017(ibid), which undermines its soundness, or results in miscarriage of justice. If the applicant-review petitioners are not satisfied with the order 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 what has been discussed above, we have no hesitation in holding that the applicant-review petitioners have not been able to make out a case for review of the order dated 5.1.2017(ibid). Resultantly, the R.A., being devoid of merit, is dismissed. No costs.