AI Structured Summary
Not yet generated for this judgment
Judgment
O R D E R
SUDHI RANJAN MISHRA, MEMBER (Judl.):
This RA has been filed b the Union of India and other seeking review of the order dated 30.04.2024 in OA 541 of 2019 passed by the Division Bench. As per rules, RA ought to have been considered on circulation, however, in order to give opportunities to the parties concerned, the matter was listed before the Bench.
Heard parties. Perused records.
The disciplinary proceedings initiated against the review respondent/employee concerned, which culminated with imposition of punishment, was challenged by him in the OA. The respondents filed counter contesting the case and this Tribunal after giving in-depth consideration to the arguments advanced by the respective parties and upon perusal of records vis a vis the rule position and law disposed of the OA, an excerpt from it is quoted hereunder:
“13.From the above, it is clear that the Disciplinary Authority himself conducted the inquiry afresh and, thus, he should have observed all the procedure provided in the rules by way of examining the witnesses, marshaling the evidences, giving opportunity for cross examination to the applicant so also opportunity to file written brief after the closure of the inquiry, which procedure appears to have not been observed by the DA more so the inquiry conducted by the DA was not in accordance with Rule 15 of the Rules and the observations of this Tribunal in OA 561/2014.
14.Sub Rule 18 of Rule 14 clearly provides that “the inquiry authority may, after the government servant closes his case, and shall, if the government servant has not examined himself, generally question him o the circumstances appearing against him in the evidence for the purpose of enabling the government servant to explain any circumstances appearing in the evidence against him”. The applicant had specifically raised this point before the DA but the DA held that it was incumbent upon the CO to offer himself to be examined and in that case he is liable to be cross-examined but document do not show that any point of time applicant offered himself for examination. The view taken by the DA in this regard is not in accordance with the aforesaid rules. Thus, there has been gross violation of the rules and principles of natural justice to the extent stated above.
15.This Tribunal is reminded of the decision of the Hon’ble Apex Court in the case of State of UP & Others Vs. Saroj Kumar Sinha, AIR 2010 SC 3131, wherein it was held that departmental inquiry cannot be treated as a casual exercise. The enquiry proceedings cannot be conducted with the closed mind. The Rules of natural justice are required to be observed to ensure not only that justice is done but it is manifestly seen to be done. Also, in the case of Yoginath D. Bagde Versus State of Maharashtra and another, (1999) 7 SCC 739, the Hon’ble Apex Court has observed that the ‘right to be heard’, being a constitutional right of the employee cannot be taken away by any legislative enactment or service rule including rules made under Article 309 of the Constitution.
16.In the case of Mohd. Iqbal Khanday v. Abdul Majid Rather, [1994] 4 SCC 34, it was held by the Hon’ble Apex Court that if a party is aggrieved by the order, he should take prompt steps to invoke appellate proceedings and cannot ignore the order. Right or wrong, the order has to be obeyed. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order.
17.This Tribunal is also remanded by the legal maxim quod contra legem fit, pro infecto habetur means what is done contrary to law is considered as not done is a well accepted principle commonly applied to all proceedings. It is also trite law that if a thing is to be done in a particular manner then it has to be done in that manner and not in any other manner. Further, the maxim sublato fundament cadit opus is a well recognized principle that if the foundation is removed, the superstructure will collapse. It is also well settled proposition that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same.
18.In disciplinary proceedings, the DA is obliged to follow the rules and principle of natural justice. On examination of the earlier order of this Tribunal with vis a vis the happenings and the position of rules and law discussed above, we do not have any iota of doubt that this is a case where there has been gross violation of the rules, procedures and principle of natural justice leading to miscarriage of justice caused to the applicant. In ordinary circumstances, this Tribunal would have quashed the proceedings and set the matter at rest but considering the earlier observation of this Tribunal on the allegation leveled against the applicant, the impugned order of punishment passed by the DA dated 27.07.2018 (A/7) and upheld by the Appellate Authority vide order dated 03.07.2019 (A/9) are hereby quashed. As a consequence, the matter is remitted back to the Disciplinary Authority to initiate the disciplinary proceedings from the stage where Rule-15 of CCS(CCA) Rules came into picture. He has to act strictly within the framework of Rule-15 and carry forward the disciplinary proceedings and the entire proceeding shall be completed within a period of sixty days from the date of receipt of a copy of this order.
Being aggrieved of the aforesaid the UOI & Ors. filed this RA on 31.05.2024 seeking to review the aforesaid order on the ground that in the daily order sheet dated 30.05.2013, the inquiry authority inexplicitly asked he charged official as to whether he wants to cross examine anyone in his defence and he replied in negative. Thus, the CO has been given ample opportunity at all stages. After following due process in accordance with CCS (CCA) Rules, 1965 and considering the report of the IO and the reply of the applicant, he was imposed with the punishment. Therefore, the observation of the Tribunal that the applicant was denied the principle of natural justice is an error warranting review of the order. The Tribunal came to the conclusion without taking into consideration all the facts raised in the counter. It is submitted that the charged official meanwhile retired from service on 31.07.2023. The witnesses in this proceeding are also not available in the station. There whereabouts is not known to the present review applicants. Hence, at this stage, initiation of proceeding again within the frame work of Rule 15 and carry forward the disciplinary proceedings is not feasible. Accordingly, review applicants/UOI & ors. seek to review the orders.
This was strongly opposed by the Ld Counsel appearing for the review respondent/applicant in the OA. By remembering various decision of the Hon’ble Apex Court, it has been submitted by him that none of the grounds based on which this RA is filed comes within the scope and ambit of order 47 Rule 1 of CPC warranting exercise of power of review. Further, by taking us through the orders sought to be reviewed, he has submitted that this Tribunal has vividly discussed the facts on record and position of rule and ultimately came to a conclusion in a well reasoned order. The points raised by the review applicants for review does not and cannot alter the position and ultimate finding reached by this Tribunal. In the circumstances, he has prayed for dismissal of this RA.
After considering the arguments advanced by the parties, we have perused the records. We are completely in agreement with the Ld. Counsel for the review respondents that the grounds upon which the review applicants seek to review the order does not come within the parameter of Order 47 Rule 1 of CPC. Under Order 47 Rule 1 CPC, a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. 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 justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise". The above observation is fortified by the decision of the Hon’ble Apex Court in the case of State of West Bengal v. Kamal Sengupta, (2008) 8 SCC 612, wherein the Hon’ble Apex Court had an occasion to consider what can be said to be "mistake or error apparent on the face of record" and the Hon’ble Apex Court observed and held as under:
"22.The term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision.”
In State of Haryana Vs. M.P. Mohla, (2007) 1 SCC 457, the Hon’ble Apex Court has held as under:
"27.A review petition filed by the appellants herein was not maintainable. There was no error apparent on the face of the record. The effect of a judgment may have to be considered afresh in a separate proceeding having regard to the subsequent cause of action which might have arisen but the same by itself may not be a ground for filing an application for review."
In the case of Lily Thomas v. Union of India, (2000) 6 SC 224, it has been observed and held by the Hon’ble Apex Court that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power.
In the case of Parsion Devi & Ors. vs. Sumitri Devi & Ors., (1997) 8 SCC 715, it has been held by the Hon’ble Apex Court that 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 justifying the Court to exercise its power of review. A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected, but lies only for patent error.
In the case of Col. Avtar Singh Sekhon vs. Union of India & Ors., 1980 (Supp) SCC 562, Hon’ble Apex Court held that review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. Further, in the case of Aribam Tuleshwar Sharma Vs Aribam Pishak Sharma and Ors., (1979) 4 SCC 389, Hon’ble Apex Court observed that power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court.
From the record, it establishes that the Review Applicants through this RA virtually seek for rehearing of the matter on merit, which is impermissible in law. Thus, going by the stand point of the review applicants vis-à-vis the law laid down by the Hon’ble Apex Court, this Tribunal is at a loss to come to the conclusion that there was any error apparent on the face of record requiring review of the order. Also, retirement of the applicant is hardly of any ground to review the order.
In view of the above, this RA stands dismissed by leaving the parties to bear their own costs.