Govt. Of NCT Of Delhi Through And Anr vs Rajiv Kumar Khanna

This Miscellaneous Application (MA) has been filed by the review applicants/respondents in OA seeking condonation of delay of 20 days in filing the RA. For the reasons mentioned in the MA and in the interest of justice, delay of 20 days in filing the RA is condoned. MA is allowed.

This Review Application (RA) has been filed by the respondents in OA, seeking review of this Tribunal's order dated 09.10.2018 in OA No.2668/2018. The Tribunal vide the ibid order disposed of the OA in the following terms:

"3. From the documents placed on records as well as submissions made by learned counsel for the parties, it is not in dispute that applicant has not been issued any charge memo so far. As per mandate of the Hon'ble Apex Court in the case of Ajay Kumar Choudhary Vs. Union of India in Civil Appeal No. 1912/2015 decided on 16.02.2015, if charge memo is not issued within 90 days from the date of the suspension order, the suspended govt. official would be entitled for reinstatement in service. Hence, we direct the respondents to reinstate the applicant in service within a period of two weeks from the date of receipt of a copy of this order.

The respondents, however, shall have liberty to proceed against the applicant in departmental proceedings in accordance with the law. The period of suspension shall be dealt with by the respondents under Rules FR 54 -B in the due course."

The review applicants have pleaded the following important grounds for seeking review of the Tribunal's order dated 09.10.2018 in OA No.2668/2018:

2.1 The order passed by the Tribunal is illegal, arbitrary in the face of the facts of this case, since a complaint was received from one Sushila Devi to SDM (Kanjhawala) regarding commissions and omissions of the original applicant and further that on the said complaint a Show Cause Notice was issued to the original applicant/respondent no.1 on 13.03.2018 to which he had submitted his reply on 16.03.2018. On not receiving a satisfactory reply and clarification the impugned suspension order was passed on 05.04.2018. Hence the original applicant/respondent in RA was fully aware of the reasons of his suspension which fact was concealed by him in the OA.

2.2 The original applicant/respondent in the RA being aware of the reasons of his suspension would not be covered under the law laid down by the Hon'ble Apex Court in Ajay Kumar Choudhary v. Union of India, [Civil Appeal No.1912/2015, decided on 16.02.2015], wherein the Hon'ble Apex Court held that government employees should not be suspended for long period without being made aware of the reason for suspension. As such, an error has crept in the order passed by the Tribunal as this important fact has been overlooked by the Tribunal.

2.3 The Hon'ble Tribunal has overlooked the fact that the suspension of the original applicant/respondent in RA was not without any reasons.

A mere reading of the grounds and other points raised in the RA would give an impression as though the review applicant has tried to re-argue the case. As a matter of fact, the RA appears to be in the nature of an appeal, which is not permissible under law. The grounds raised herein were also raised by the review applicants in the OA. If in the opinion of the review applicants, the order is erroneous, remedy lies elsewhere and certainly review is not the remedy.

The sine qua non for reviewing any order of the Tribunal is existence of an apparent error on the face of the record. The review applicants have failed to point 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."

For the reasons discussed in the foregoing paras, we do not find any merit in the RA. Accordingly, the RA is dismissed in circulation.