Sri Subir Banerjee vs Union of India (UOI) and Others

Syamal Kanti Chakrabarti, J.—In the instant application the judgment and order dated 28.02.2008 passed in F.M.A. No. 744 of 2007 have been sought to be reviewed by the Appellant on grounds of dismissal of the same on technical grounds without considering the merits and all the facts on record and pleaded.

The Appellant/Petitioner contends that his father was a lower division clerk in the headquarter, Calcutta sub-area Alipore. On account of death of his father in harness on 8th February, 1987 on compassionate grounds he was provisionally appointed as a messenger against regular vacancy with effect from 1st February, 1992. But on a few occasion he could not attend his duty and by a letter dated 18th June, 1996 Brigadier, O.H.G. G.O.C. issued notice of termination of his service under Rule 5(1) of the Central Civil Services) Temporary Service 1995 intimating the Petitioner that his service will be terminated with the expiry of a period of one month. He was also not given salary in proper time. According to the Petitioner he was on leave from 11th October, 1997 to 12th October, 1997 and again he fell ill and was under medical treatment between 13th October, 1997 and 18th February, 1998 as he was suffering from Viral Hepatitis. The mother of the Petitioner made a representation before the Commandant E.M.B, the Headquarter, Calcutta, Alipore intimating that her son made four representations but no reply was received and that though his son was appointed as a messenger he was assigned with certain other laborious work for which he fell ill and as such prayed for change of duties. All such efforts yielded no fruitful result and ultimately by memo dated 06.07.2001 issued by C.S.O. he was finally intimated that his representation against termination has been considered and they adhered to their earlier decision with further intimation that no such representation shall be entertained in future. Therefore, challenging their correspondence with him the applicant preferred Writ petition being W.P. No. 8919 (W) of 2003 before this Hon''ble Court which was dismissed on 27.08.2004 by this Hon''ble Court. Against the said order of dismissal the applicant preferred an appeal being F.M.A. No. 744 of 2007 which was also dismissed by judgment and order dated 28.02.2008 affirming the order of dismissal passed by Learned Single Judge.

Being aggrieved by and dissatisfied with the said judgment dated 28.02.2008 passed by a Division Bench of this Hon''ble High Court the Appellant/Petitioner has preferred this review application contending inter alia that the Learned Single Judge considered only the technical aspect of his application under Article 226 of the Constitution of India and dismissed the same on grounds of four years'' delay in preferring such application without consideration of its merits and that in the appeal also this technical aspect of inordinate delay was only considered by the Learned Division Bench who had also dismissed the appeal on the same ground. It was further contended that as a consequence the claim of the Petitioner affecting his fundamental right to leave by earning his livelihood has been affected. As the question of livelihood of a citizen is denied this should not be ignored and so in the instant review petition he has contended that the Learned Division Bench (a) has committed an error in construing that there had been a delay of four years in preferring the writ application and (b) That it is also erroneous to hold that the final order regarding termination of the applicant''s service was issued by the concerned authority on 06.07.2001 and not on 27.01.1999 and (c) That the original writ petition has not been decided on merit though it affects his fundamental right and thereby there has been failure of justice.

Learned Lawyer for the Respondents has opposed the move and raised the following points :

a. The review application has not been properly filed without necessary certificate as required under the High Court Appellate Side Rule.

b. That the Learned Advocates who conducted the case at the time of hearing of the appeal can prefer the review application but some other Lawyer who was not present at the time of hearing of the appeal cannot take part in the hearing of the instant review application.

c. The appeal has been rightly dismissed by the Hon''ble Division Bench after due consideration of the entire facts and law involved therein and as such the same should not be interfered with by way of review.

Cases relied upon by the Appellant: -

(Akhilendu Ghosh v. State of West Bengal and Ors. AIR 1991 SC 688

(Eastern India Edible Oil Manufacturers'' Association and Anr. v. Union of India (UOI) and Ors. 2004(4) CHN

( S.B. Kishore Vs. Union of India and others,

(Madhumita Das v. University of Calcutta and Ors. 2005(1) CHN)

(Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Ors. AIR 1954 SC 526

( Tinkari Sen and Others Vs. Dulal Chandra Das and Others,

( Green View Tea and Industries Vs. Collector, Golaghat, Assam and Another,

Cases relied upon by the Respondents :

(Smt. Krishna Pathak and Ors. v. Vinod Shankar Tiwari and Ors. 2005 (2))

( Manish Newton Vs. Lachoo College of Science and Technology, Jodhpur and Another,

( Dolat Industries Vs. Krishna Oil Industries and Another,

(Ajit Kumar Rath v. State of Orissa and Anr. AIR 2000 SC 85

Thus the points for our consideration are :

Whether the instant review application is maintainable in its present form.

Whether there has been any error apparent on the face of record which calls for review of the Judgment.

So far as the first point is concerned, Learned Lawyer for the Petitioner has drawn our attention to Chapter X of Rule 2 of the Appellate Side Rules of the High Court at Calcutta which runs as follows :

Rule "2" An application for review of judgment shall set forth plainly and concisely the grounds on which a Review is sought, and shall contain Certificate of an Advocate of the High Court similar, mutatis mutandis, to that prescribed in appeals from appellate decree". Admittedly in the instant case no such certificate has been given by any advocate preferring the appeal. Only in the affidavit filed by the Petitioner Subir Banerjee one Learned Advocate has certified that the deponent is known to him. Therefore, this affidavit affirmed on 16.04.2008 is not in conformity with Rule 2 of Chapter X of the Appellate Side Rules. Learned Lawyer for the Petitioner has drawn my attention to a decision reported in Tinkari Sen and Others Vs. Dulal Chandra Das and Others, in which it has been held inter alia that the grounds of review certified by an Advocate other than those who argued in original case is not patently illegal deserving to be thrown out at the threshold. We hold that the above principle is not applicable in the instant case because the review application does not contain any such certificate of the Learned Advocates who took part in the hearing of the appeal. Absence of such certificate of Learned Advocate is a serious infirmity for which we hold that the instant review petition is not maintainable in its present form.

So far as the second point is concerned, the first contention of the Learned Advocate for the Respondent is that under Order 47 Rule 1 CPC the parameter of a review application has been clearly stipulated. The first contention of the Learned Advocate for the Respondent is that under Order 47 Rule 1 CPC the parameter of a review application has been clearly stipulated according to order 47 Rule 1 an application for review of judgment can only be entertained on grounds of a) discovery of new and important matter on evidence or b) Evidence which after the exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or order made or c) On account of some mistakes or error apparent on the face of record and d) For any other sufficient reasons.

In the instant case none of the aforesaid four grounds will be applicable and as such the application is also not maintainable either in fact or in law.

This necessarily leads us to look into the findings of the Learned Single Judge which is affirmed by the Hon''ble Division Bench.

While disposing of the writ petition being No. 8919 (W) of 2003 on 27.08.2004 the Learned Single Judge has considered the question of inordinate delay in preferring the appeal for four years assuming that he has challenged the dismissal order dated 27.01.1999 as per prayer made in the writ application. While considering such delay the Learned Single Judge has relied upon the principle laid down in Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, and Ashok Kumar Mishra and Others Vs. Collector, Raipur and Others, wherein it has been held inter alia that if there is inordinate delay on the part of the Petitioner in filing a writ petition such delay is not satisfactorily explained cannot be ignored.

The High Court may refuse to intervene and grant relief if third party''s rights are created in the intervening period. Such refusal is neither unconstitutional nor illegal. In the instant case the said principle was also accepted by the Hon''ble Division Bench inasmuch as unauthorized absence for indefinite period without proper leave application obviously affected the administration for which the appointing authority is bound to take appropriate step as per law to fill up the consequential vacancy occurring on account of frequent unauthorized absence of a temporary staff giving rise to right of third party.

While considering the appeal being M.A.T. No. 1076 of 2005 the Hon''ble Division Bench on 28.02.2008 observed inter alia that the representation of the Petitioner was lastly rejected vide communication dated 6th July, 2001 while the Petitioner was informed that on account of rejection of successive representations made by him, in future no representation will be entertained by the Headquarters. "The Petitioner, thereafter, slept over his right, till he filed the present writ petition in 2003". Therefore, we find that the matter of inordinate delay in preferring the appeal and consequences thereof were carefully considered in this appeal and in fact the order of termination dated 5th January, 1998 and subsequent order dated 27.01.1999 sought to be recalled or withdrawn in terms of prayer (a) of his writ application is the real cause of action, for which writ petition was filed in 2003 seeking necessary relief. The Petitioner took four years time to take such decision without reasonable cause. This aspect was taken into consideration by the Appellate Court. Therefore, there is no error apparent on the face of record for review of the Judgment. Learned Lawyer for the Petitioner, however, has drawn my attention to the principle laid down in S.B. Kishore Vs. Union of India and others, in which in a land acquisition case the owner of the land approached the Hon''ble High Court after 19 years of event. Though the High Court dismissed the petition on ground of latches the Hon''ble Apex Court was of the view that in the facts of that case such type of delay could be overlooked and the claim considered. Since the question of livelihood of the Petitioner therein is seriously affected by the order of termination such question ought to have been decided on merit after giving due opportunity of being heard to the Petitioners and after giving notice to show cause in accordance with the principle of natural justice. He has also drawn my attention to the principle laid down in 2001 (3) CHB 688 , Eastern India Edible Oil Manufacturers'' Association and Another Vs. Union of India (UOI) and Others, , Green View Tea and Industries Vs. Collector, Golaghat, Assam and Another, , Madhumita Das Vs. University of Calcutta and Others, in support of such contention. In those cases the ratio is in favour of consideration of the application on merit ignoring the delay where fundamental right has been infringed. Therefore, the pertinent question which came up for consideration of the Hon''ble Court in the instant case is the nature of right affected in the instant case. Admittedly the writ Petitioner got the appointment on compassionate ground on account of death of his father in harness. He was provisionally appointed as a messenger with effect from 01.02.1992 with clear stipulation in para 2 (page 46 of the W.P.) that he will remain on probation for a period of 6 months and thereafter further retention in service will be considered on the basis of suitability for the post. Rule 5 of the Central Civil Services (Temporary Services) Rules1965 runs as follows :

Termination of temporary Service - (1) (a) The services of a temporary Government Servant shall be liable to termination at any time by a notice in writing given either by the Government Servant to the appointing authority or by the appointing authority to the Government Servant ;

(b) the period of such notice shall be one month :

Provided that the services of any such Government Servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or, as the case may be, for the period by which such notice falls short of one month.

Note. - The following procedure shall be adopted by the appointing authority while serving notice on such Government Servant under Clause (a) -

(i) The notice shall be delivered or tendered to the Government Servant in person.

(ii) Where personal service is not practicable, the notice shall be served on such Government servant by registered post acknowledgement due at the address of the Government Servant available with the Appointing Authority.

(iii) If the notice sent by registered post is returned unserved it shall be published in the Official Gazette and upon such publication, it shall be deemed to have been personally served on such Government Servant on the date it was published in the Official Gazette.

From the said specific provision made in the service rule only service of notice is mandatory for termination of a temporary service. There is no scope for issuing any notice to show cause or for drawing up any disciplinary proceedings for termination of such temporary service. If the statute provides a specific mode of termination of temporary service, employer is bound to follow such procedure and from the averment made I find that there is no denial of such notice of termination because after receipt of such notice admittedly the writ Petitioner submitted several representations which were duly responded by the Respondent in their memoranda dated 05.01.1998, 27.01.1999, 12,02,1999, 05.04.1999, 08.09.1999 and 06.07.2001 respectively as mentioned in para 9 of the review petition. Therefore, failure to issue any notice to show cause upon the Petitioner before termination of his temporary services on account of unauthorized absence and refusal to give any opportunity of being heard before termination of such temporary services do not violate any principle of natural justice which is applicable in absence of any service rules. If the manner of dismissal of temporary service is prescribed in the statute, such prescribed manner shall prevail over the principle of natural justice. Such a statutory provision is mandatory for the appointing authority to follow and the Learned appellate court has rightly and consciously declined to intervene and to grant any relief. Therefore, this also cannot be a ground for review of the impugned judgment and the principle laid down in the above cases are inapplicable in the facts and circumstances of this case.

Much argument has been advanced by the Learned Lawyer for the Petitioner that the termination of the temporary service of the Petitioner is not sustainable in law since gross injustice has been done to the Petitioner in counting his absence from duty which was involuntary. In fact in the judgment under review the Appellate Court has carefully considered this aspect. In fact the temporary appointment of the writ Petitioner as a messenger was not accepted at heart by the Petitioner which is reflected in his communication dated 27.10.1997 to the Commandant E.M.B. Headquarter, Calcutta. He has mentioned that instead of assigning him any duty of a messenger he was asked to do the work of sweeper, gardener, labourer and mess boy etc. which had seriously affected his health and as a consequence he was becoming ill and had to undergo medical treatment. In considering the appeal the Hon''ble Appellate Court referred to the representation made by his mother on the same line on 20.04.1998 (page 55 of the writ petition) which in substance an urge of the mother to give her son a lighter job without explaining the real causes of his frequent absence from duty without prior leave. Therefore, the Hon''ble Appellate Court has rightly observed "Interestingly the plea put forward in their representation by the mother of the Petitioner is that the Petitioner was compelled to leave the job because the Petitioner was given certain duties which according to him were not to be performed by a messenger. It is nowhere mentioned that the Petitioner remained absent on number of occasions between 1996 and 1998 on account of illness as pleaded by the Petitioner in the writ petition." Neither in the writ petition nor in the memorandum of appeal the Petitioner mentioned the exact period of his absence from duty on account of illness and as such he is not coming in clean hand to claim any equitable right under Article 19(1)(g) of the Constitution of India. He was in fact reluctant to discharge his duties assigned by the employer and, therefore, remained absent with the expectation that such duty will be changed. Thus, repeated opportunities were given to him to resume his duties which will be reflected from the communication dated 23.03.1996 Page 47 of the Writ petition and ultimately the employer was compelled to terminate his service in pursuance of Sub-Rule 1 of Rule 5 of the Central Civil Services (Temporary Services) Rule 1965 as per their communication dated 18.06.1996 with effect from the date of expiry of a period one month from the date on which the notice was served or as the case may be tendered to him (Page 48). Therefore, as per such termination notice his service was terminated in July, 1996 and after lapse of 14 months thereafter on 27.10.1997 he made a representation intimating that on receipt of fit certificate he will attend his job and asked in such application dated 27.10.1997 the employer to assign him with the duty of a messenger post instead of giving heavy work of a sweeper, gardener, labourer and mess boy etc. So the employer finally terminated his service by notice dated 05.01.1998 (Page 51) w.e.f. expiry of a period of one month from the date on which the notice is served or as the case may be tendered to him. In the judgment under review the Learned Appellate Court has taken note of this aspect and thereafter affirmed the judgment of the Learned Single Bench. It has further observed inter alia that during the short period of employment with the Army authorities "the attendance of the Petitioner can at best be said to be not only irregular but erratic". Therefore, in the judgment under review the dual aspects of delay in preferring appeal and the facts which compelled the appointing authority to terminate the temporary service of the Petitioner on account of unauthorized frequent absence from duty were both considered after hearing both the parties and duly reflected in the judgment which is based on facts and averments made by the contending parties. The Petitioner, therefore, cannot pray for review on these grounds also which cannot be termed as error or omission apparent on the face of record.

In Dolat Industries Vs. Krishna Oil Industries and Another, it has been held inter alia that review is not permissible on ground that court has proceeded on wrong proposition of law or that the decision is erroneous on merits. Such decision can be subject to appeal to higher forum and it cannot, however, be subject to review. Relying upon the above principle I hold that there is no scope to review this the judgment under review for reassessment of materials on records to arrive at a different conclusion.

Learned Lawyer for the Petitioner has further argued that the Petitioner was not allowed to resume his duty despite the medical certificate submitted by him showing grounds for his unauthorized absence. This matter has not been considered by the Learned Appellate Court which may come under the purview of the words "any other sufficient reasons" used in order 47 Rule 1 CPC for the purpose of review. The said medical certificate was obtained on 18.02.1998 (Page 53) showing suffering of the writ Petitioner from Viral Hepatitis from 13.10.1997 to 18.02.1998. On 23.03.1996 he was asked to join duty at Station Headquarters, Calcutta with immediate effect (Page 47) followed by termination letter dated 18.06.1996 with the expiry of one month from the date of service of such notice or tendered to him. On this occasion he has utterly failed to offer any satisfactory explanation to the employer for unauthorized absence from duty from March, 1996 to July, 1996. This aspect was considered by the Learned Appellate Court which will be reflected from the remarks made while dealing with the representation made by the mother of the Petitioner in November, 1999 in the following terms , " it is no where mentioned that the Petitioner remained absent on number of occasions between 1996 and 1998 on account of illness." Thus it is evident from the record that termination letter was issued on 05.01.1998 on account of unauthorized absence and thereafter on 18.02.1998 medical certificate was issued. This aspect has also been dealt with in the judgment under review in the aforesaid manner and there was no omission on the part of the Hon''ble Division Bench causing failure of justice.

In AIR 2000 SC 85 Hon''ble Apex Court has held inter alia that the expression ''sufficient means'' used in Order 47 Rule 1 CPC means a reason sufficiently analogues to those specified in the Rule. Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in order 47 would amount to an abuse of the liberty given to the Tribunal under the Act to review its Judgment. Relying upon the above principle I hold that the plea taken by the Petitioner for review of judgment is beyond the scope of order 47 Rule 1 CPC and reassessment of it''s merit cannot be reopened under review which will amount to abuse of the liberty granted therein. Considering all these aspects we hold that where the judgment has been delivered upon consideration of technical and material facts on record there is no scope for review only for reassessment of such material . Therefore I hold that instant application for review is devoid of any merit and the same is dismissed.

I make no order as to costs.

Urgent photostat certified copy of this order, if applied for, be supplied to the respective parties, upon compliance of all necessary formalities.