Md Samsul Ali vs State Of Assam

Heard Mr. R. Barua, learned counsel for the review petitioner. Also heard Mr. A. Chakravorty, learned State counsel appearing for the

respondents.

This review application is filed on 31.1.2018, after more than three and half years had elapsed, seeking review of paragraph 26 of the judgment and

order dated 5.9.2014 passed in WP(C) No. 1901/2010.

The petitioner, who was a constable, was dismissed from service by an order dated 19.9.2006.

The writ petition was filed after about four years of passing of the order of dismissal.

At paragraph 25, it was observed as follows:-

“25. The appointing authority dismissed the petitioner holding that both the charges are proved. This Court has now recorded a finding that the

charge relating to his involvement in Dispur Police Station Case No. 1192/2005 was not established. This Court will not hazard a guess as to how far

and to what extent the individual charges weighed upon and influenced the disciplinary authority in coming to the conclusion with regard to imposition

of penalty by way of dismissal from service. Now that only charge relating to absence from duty has been held to be proved, it will be only appropriate

for the Commandant, 10th Assam Police Battalion to pass a fresh order imposing penalty as may be considered just and proper for the charge

established against the petitioner.â€​

Paragraph 26 of the judgment reads as follows:

“26. Accordingly, a Writ of Mandamus is issued to the Commandant, 10th Assam Police Battalion to pass a fresh order imposing penalty upon the

petitioner, which has been held to be established, within a period of one month from the date of receipt of a certified copy of this order. With the

passing of the fresh order of penalty, the present order imposing penalty by way of dismissal will stand obliterated. Having regard to the nature of the

case as also the challenge made by the petitioner before this Court by way of the instant writ petition after about four years of the passing of the order

of dismissal, this Court considers it just and expedient to pass an order to the effect that in the event of the disciplinary authority imposing any penalty

which may have the effect of taking back the petitioner in service, the petitioner will not be entitled to any pay and allowances from the date of his

dismissal to the eventual order imposing penalty now to be passed. However, it is also provided that, in such an event the period will be reckoned for

the purpose of computation of pensionary benefits. Needless to say, if the petitioner is aggrieved by the fresh order imposing penalty, he will be free to

pursue his remedies in accordance with law.â€​

Mr. Barua submits that the direction of this Court in paragraph 26 that the petitioner would not be entitled to any pay and allowances from the date

of his dismissal to the date of the order imposing penalty, which may have the effect of taking back the petitioner in service, needs to be reviewed as

such a direction is not tenable in law.

It is well settled that review proceeding have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. Under Order 47 Rule 1 CPC,

a judgment may be reviewed if there is a mistake or an error apparent on the face of the record. A review is not an appeal in disguise whereby an

erroneous decision is re-heard and corrected, but lies only for patent error.

The learned counsel is unable to point out what is the error apparent on the face of the record in the direction of this Court. An error which is not

self evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record.

The petitioner had not assailed the above order by approaching a higher forum through appropriate proceeding for all these years.

No case for review is made out and accordingly, the review petition is dismissed.