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2010 DIGILAW 296 (AP)

Mohd. Yousuf v. Director General of Fire Services

2010-04-13

G.V.SEETHAPATHY, P.S.NARAYANA

body2010
Judgment G.V. Seethapathy, J. 1. This application is filed by the petitioner under Order XL VII Rule 1 CPC seeking review of the order dated 23-03-2005 in W.P.No.3478 of 2004, wherein the said writ petition filed by the respondents herein for quashing the order dated 11-03-2003 in O.A.No.4949 of 2000, on the file of the A.P. Administrative Tribunal, was allowed. 2. Heard the learned counsel for the petitioner and Sri S.Satya Prasad, learned Additional Advocate General for the respondents. Perused the records. 3. A few facts, which are relevant for disposal of this application, can be stated thus: The petitioner herein was appointed as Fireman in 1962 and was subsequently promoted as Driver/Operator in 1975. He was unauthorisedly absent from duty from 02-02-1983 to 21-10-1986. Disciplinary proceedings were initiated for his unauthorized absence, which resulted in his dismissal from service. On appeal, the order of dismissal was set aside and alternative punishment was imposed and he was reinstated into service in 1986. On 29-12-1992, he fell sick and was admitted in Osmania General Hospital. He, however, did not, intimate the authorities about his absence. A charge sheet was issued to him by the department for the unauthorized absence, but it could not be served on him as he was not available at the address given by him. Thereafter, an ex parte enquiry was conducted and he was ultimately dismissed from service on 12-01-1994. On 27-03-1995, the petitioner filed an application and the same was also dismissed. On his representation to Government, the date of dismissal was changed from 29-12-1992 to 12-01-1994. Against the said order, he filed O.A.No.4949 of 2000 before the A.P.A.T. The Tribunal held that enquiry was not conducted properly and the enquiry report was also not furnished to the petitioner herein and accordingly allowed the O.A. Assailing the said order of the Tribunal, the department filed W.P.No.3478 of 2004. After hearing both sides, this Court held that the conduct of the petitioner herein in not intimating the department about his alleged admission in the hospital due to sickness was not justifiable. It was further held that ex parte enquiry had to be conducted as the petitioner herein was not available at the last address given by him and having regard to the previous conduct of the petitioner herein, who was in the habit of absenting himself unauthorisedly for years together, he does not deserve any sympathy. It was further held that ex parte enquiry had to be conducted as the petitioner herein was not available at the last address given by him and having regard to the previous conduct of the petitioner herein, who was in the habit of absenting himself unauthorisedly for years together, he does not deserve any sympathy. It was also held that the service of copy of the enquiry officer’s report also does not arise, as the whereabouts of the petitioner herein were not known. Accordingly, the order of the Tribunal directing reinstatement of the petitioner was held unsustainable and the same was set aside and the order of dismissal of the petitioner herein from service was confirmed. The writ petition was, thus, allowed on 23-03-2005. The petitioner herein allowed the said order to become final, as he has not challenged the same. 4. The petitioner now seeks review of the order in the writ petition mainly on the ground that the learned counsel for the petitioner herein could not bring to the notice of the Court certain decisions of the Supreme Court wherein it was held that notices must be given to the last known address as maintained in the service record and in case last known address is not traced out, the disciplinary authority must resort to substituted service by giving publicity in the local news papers. 5. The learned counsel for the petitioner relied on a decision in Union of India and others v. Mohd. Ramzan Khan (1) AIR 1991 SC 471 wherein the Apex Court held as follows: “Deletion of the second opportunity from the scheme of Art.311 (2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the mater of making his representation. Even though the second stage of the inquiry in Art.311 (2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. Even though the second stage of the inquiry in Art.311 (2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done by the 42nd amendment which could be taken as keeping natural justice out of the proceedings and the applicability of the rules of natural justice to such an inquiry is not affected by the 42nd amendment. Therefore supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-Second Amendment has not brought about any charge in this position.” The proposition laid down in the above decision is not disputed. In the present case, notice could not be served on the petitioner herein, as he was not found at the last address given by himself. The petitioner herein reported at the hospital on 29-12-1992 as outpatient and thereafter he was unathorisedly absent and did not intimate his whereabouts. He was not available at the last known address and he also did not inform the department about the change of address. The charge memo sent to the petitioner herein through a special messenger could not, therefore, be served. It was again sent to him by registered post with acknowledgement due and the said cover was returned with postal endorsement “addressee was continuously absent for 7 days”. For nearly three years, the petitioner herein had not intimated his whereabouts to the department and he was found not available at the last address given and his whereabouts were not known. It was again sent to him by registered post with acknowledgement due and the said cover was returned with postal endorsement “addressee was continuously absent for 7 days”. For nearly three years, the petitioner herein had not intimated his whereabouts to the department and he was found not available at the last address given and his whereabouts were not known. Accordingly, the Enquiry Officer conducted the enquiry based on the material available on record and submitted his report, holding that the charge levelled against the petitioner herein was proved. The failure of the petitioner herein to intimate his address to the department itself constitutes violation of Order No.73 of the A.P. Service Manual, which mandates that the petitioner herein is bound to leave his address with the Divisional Fire Officer or the Enquiry Officer. It is, therefore, not a case where the address of the petitioner herein was known and in spite of it notice was not sent to him. It is a case where notice of enquiry could not be served on the petitioner as his whereabouts were not known and the notices sent to the last address given by him were returned unserved. 6. The decision in P.V.S. Reddy v. Depot Manager, APSRTC, Gooty Depot, Anantapur District and others (2) 2006 (1) ALD 293 relied on by the learned counsel for the petitioner, wherein this court found fault with the failure to issue a show cause notice before imposing a major penalty, is also not applicable to the present case for the same reason. In the above case, the delinquent was very much available but still a show cause notice based on the report was not served on him and straightaway major penalty was imposed after receiving the report of enquiry. 7. The order under review is an order passed on merits after giving opportunity of hearing to the petitioner. The parameters for entertaining the review application under Order XL VII CPC are well settled by a catena of decisions and need no reiteration. Very recently, a Division Bench of this Court in T. Laxma Reddy v. Government of A.P (3) 2010 (1) ALT 28 of which one of us (Justice P.S. Narayana) was a member, while considering the principles governing the exercise of power of review under Order XL VII Rule 1 CPC, after reviewing the case law on the subject, held as follows:- “1. On the discovery of new and important matter or evidence which, after the exercise of due diligence is not within the knowledge or could not be produced by the petitioner at the time when the order was made. 2. It can be exercised on account of some mistake or error apparent on the face of record. 3. To correct the patent error of law or fact which stares in the face. 4. The expression “any other sufficient reason” appearing in order XL VII Rule 1 CPC has to be interpreted in the light of other specified grounds. 5. An erroneous order/judgment can not be corrected in the guise of exercise of power of review. 6. There is a clear distinction between an erroneous decision and an error apparent on the face of record. While the former can be corrected by the higher forum, the latter only can be corrected under Order XL VII Rule 1 CPC. 7. While exercising the power of review, the court cannot sit in appeal over its judgment. 8. 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 of the legal position.” In the present case, the only ground on which the review of the earlier order sought is that at the time of hearing of the writ petition, the petitioner could not place before the Court certain decisions of the Supreme Court. The principles laid down in the said decisions of the Apex Court, which are referred to supra, are not disputed, but they are not attracted to the factual matrix of the present case. Even otherwise, failure to cite certain decisions at the time of hearing does not afford valid or sufficient ground for review of the order. Under Order XL VII CPC, the scope of review is limited to certain specified grounds viz., (i) discovery of new and important matter or evidence, which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or made, (ii) on account of some mistake or error apparent on the face of the record; and (iii) for any other sufficient reason. The present case is not one where there has been discovery of new and important matter or evidence subsequent to passing of the order under review. Secondly, there is no mistake or error apparent on the face of record that needs to be corrected by exercise of power of review. Thirdly, the expression “any other sufficient reason” appearing under Order XL VII Rule 1 CPC has to be interpreted in the light of other specific grounds, as held in a catena of decisions and reiterated in the recent decision of a Division Bench of this Court in T.Laxma Reddy’s case (3 supra). There is no such mistake or error apparent or evident per se from the record of the case, which does not require any detailed examination, scrutiny and elucidation either of facts or of the legal position. 8. Hence, in view of the principles laid down in the above decision and none of the grounds for review enshrined under Order XL VII Rule 1 CPC getting attracted to the facts of the present case, it is held that the present application for review is de void of merits. The order dated 23-03-2005 in W.P.No.3478 of 2004 does not, therefore, call for any review. 9. In the result, Rev. WPMP.No.12798 of 2005 is dismissed. There shall be no order as to costs.