Pratikkumar vs Union Of India Notice To Be Served Through The Chief Post Master General Office Of CPMG, Gujarat Circle, Khanpur, Ahmedabad � 380 001 & Others

Jayesh V Bhairavi, Member (J)

The present review application No.30/2021 along with MA No. 483/2021 for condonation of delay, is filed by the applicant against the order of this

Tribunal in OA No. 499/2014 seeking recall/review of order dated 21.10.2021 (Annexure A) passed in the said OA and sought the following reliefs: -

(A) The Hon’ble Tribunal be please to recall the order in OA No.499/2014 at Annexure-A and direct registry to fix the date of hearing

of the original application.

(B) Any other relief to which this Hon’ble Tribunal deems fit and proper in the interest of justice together with cost.

The claim of the applicant is that the impugned action i.e., oral order of termination of the service of the applicant by the respondent no.2 w.e.f

19.11.2014 is ex-facie, illegal, arbitrary and unjust. This Tribunal after going through the facts of the case found that there is no material on record

which can indicate or establish that appointment of the applicant herein was made against sanctioned post. Hence, the OA was dismissed by the order

dated 21.10.2021 on merits.

Aggrieved by the said order the applicant has filed the present RA mainly on the grounds that the order of this Tribunal dated 21.10.2021 has not

observed the important facts raised by the applicant about violation of Section 25-F of the ID Act which was not disputed by the respondents in their

reply. It is an admitted fact, that after termination of service of applicant a fresh person was employed against the said post and the juniors to applicant

were continued in service. The above important issue is lost sight of by the Tribunal while deciding the OA.

The applicant contended that specific grounds raised by him in the original application (in ground H) are not disputed by the respondents, in their

reply. Hence, those grounds are required to be treated as correct. The applicant had produced Annexure -A/1 to A/4, signed by the respondent

authority and the documents at Annexure A/5 shows the postal articles given to the applicant for delivery. The respondents have not produced any

contrary documents.

The Review Applicant has also preferred a M.A No.92/2021 for condonation of delay as he could not file the review within the stipulated time. The

order of this Tribunal was received by the advocate Mr. M. S. Trivedi after 22.10.2021 and the applicant received the xerox copy on 11.11.2021.

Thereafter, on 22.11.2021 he approached present advocate i.e., Mr. P. H. Pathak and requested for original copy of OA and the certified copy of the

order for study but it was not traceable in the office of the advocate Mr. Trivedi. It was finally traced out and supplied to the applicant on 27.11.2021.

The applicant was given time for meeting Mr. Pathak on 08.12.2021. Therefore, in interest of justice the delay of 52 days/22 days may kindly be

condoned.

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.â€​

The Hon’ble Supreme Court in an another judgment in the case of Union of India v/s Tarit Ranjan Das 2004 SCC (L&S) 160 while dealing

with the order passed in Review Application at paragraph 13 observed as under:

“The Tribunal passed the impugned order by reviewing the earlier order. A bare reading of the two orders shows that the order in review

application was in complete variation and disregard of the earlier order and the strong as well as sound reason contained therein whereby

the original application was rejected. The scope for review is rather limited and it is not permissible for the forum hearing the review

application to act as an appellate authority in respect of the original order by a fresh and rehearing of the matter to facilitate a change of

opinion on merits. The Tribunal seems to have transgressed its jurisdiction in dealing with review petition as if it was hearing original

application. This aspect has also not been noticed by the High Court.â€​

Bearing in mind the above principles laid down by the Hon’ble Supreme Court, existence of an error on the face of the record is sine qua non

for review of an order. It is not permissible for the forum to hear the review application to act as an Appellate Authority in respect of the original

order by a fresh hearing of the matter to facilitate a change of opinion on merits. We have examined the grounds urged by the review applicant in

support of his prayer for reviewing the order and we find that the review applicant has failed to bring out any apparent error on the face of order

under review.

The review applicant has not brought any new facts on record and there is no error apparent on the face of record. In fact, in para 5 of the order

dated 21.10.2021, the Tribunal has noted that it has been mentioned by respondents in their additional reply that the applicant himself had submitted an

application for work on contractual basis vide Annexure Z/1. These being the facts, we do not find any error of fact or law in the order dated

21.10.2021 in OA 499/2014.

Thus, in view of the above discussion and in light of the law laid down by Hon’ble Apex Court (supra), the applicant has 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. The MA is also disposed

off.