Kishori Prasad vs Union of India (UOI) and Others

Kalyan Jyoti Sengupta and Prasenjit Mandal, JJ.—As prayed for, leave is granted to file power in course of day after tomorrow; failing which his appearance will be denoted.

Mr. Dutt, appearing for the Respondents submits that he does not want to file any affidavit-in-opposition in this matter. Hence, we decide the matter finally today.

We have heard Mr. De and Mr. Dutt and we have also gone through the impugned order. Learned Tribunal on 15th June, 2007 passed an order on the original application, being O.A. 54 of 2006. The applicant before us immediately thereafter made a miscellaneous application, being M.A. 472 of 2007, for recalling of the aforesaid order together with a prayer for condonation of delay.

It has been noted by the learned Tribunal that the application, being R.A 32 of 2007 was initially a review application u/s 22(3) (f) of the Administrative Tribunal Act. In the said application for review was sought for on the ground that the order, passed earlier by the learned Tribunal, was on the basis of the submission made by the learned Lawyer engaged by the applicant without any instruction or authority; in other words, learned Tribunal was led to pass an order taking note of unauthorized submission. Therefore, issue really in the review application was whether the learned lawyer, engaged, had any instruction or authority to make any submission or not.

We have carefully gone through the order of the learned Tribunal and we find that the learned Tribunal did not delve into this issue possibly upon its interpretation that the scope of review is restricted to what the learned Tribunal has observed. Learned Tribunal was of the view that review application will be entertained only when any error appears on the face of the records. Learned Tribunal has re-produced the provisions of review from the CPC Code, viz; Order XLVII, Rule 1 and also the provisions of the Administrative Tribunal Act. Section 22 of the said Act has made it clear that provisions of the CPC will be applicable in a restricted way and not in all senses. This has been made clear u/s 22(3) Clause a (i). Section 22 (f) has made it clear that power of review is there. So the learned Tribunal has correctly adopted the provision of Order XLVII, Rule 1 but unfortunately it has overlooked that review can be made not only on the ground of some mistake or error apparent on the face of the records but also for any other sufficient reasons. Of course, any other reason has been interpreted by several judicial pronouncements as ejusdem generis to the main provision. But in our view, this should be in consonance with the interest of justice. When allegation was made that no instruction was given to the learned lawyers not to press, then it was incumbent on the part of the learned Tribunal to enquire into that aspect also. Procedural provision has been made to render justice not to render miscarriage of justice. So for any other sufficient reason, mentioned in Order XLVII, Rule 1 also covers a case of this nature as litigant has engaged learned lawyers and he was completely and supremely rest assured that his case would be properly conducted before the learned Tribunal instead he finds later, contrary to his belief and trust, his case was not presented at all. Therefore, learned Tribunal being the custodian of this justice delivery system, should have invoked the aforesaid power to look into this aspect. We, therefore, set aside the impugned order and we request the learned Tribunal to hear out both the miscellaneous applications wherein order dated 15th June, 2007 is sought to be recalled, but the same shall be done strictly on the ground whether the learned lawyer was authorized to make such submission for not pressing the matter.

The application, thus, stands allowed.

Urgent xerox certified copy, if applied for, be given to the parties on priority basis.