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2011 DIGILAW 227 (CAL)

Prasanta Das v. UNION OF INDIA

2011-02-17

MRINAL KANTI CHAUDHURI, PRATAP KUMAR RAY

body2011
JUDGMENT Pratap Kumar Ray, J. 1. THE Judgment of the Court was delivered by Heard the learned Advocates appearing for the parties. 2. ASSAILING the order dated 22nd October, 2010 in O.A. No. 2075 of 2010 passed by the Central Administrative Tribunal, Calcutta Bench, this writ application has been filed. The impugned order reads such: "22.10.2010 - When the matter is called out today Mr. A. Chakraborty, Learned counsel for the applicant states that the applicant shall be joining in Burdwan Division within a week and shall be submitting a representation for his appropriate posting. One such representation is already submitted. We expect that the same will be considered in terms of the last paragraph of the order dated 13.9.2010 as expeditiously as possible and within one month from the date of receipt of the representation. 2. We make it clear that we have expressed no opinion on the merits of the case or regarding regularization of the period for which the applicant claims he was under treatment of private doctor or had not been taken on duty. The O.A. stands disposed of. No costs." On a bare reading of the impugned order, it appears that it was a consent order wherein writ petitioner agreed to join in Burdwan Division and thereafter to file a representation seeking appropriate posting. 3. LEARNED Advocate for the petitioner, however, submits that the writ petitioner never instructed learned Advocate to submit such. On that point in paragraph 45 of the writ application which has been affirmed as submission before this Court, averment has been made to this effect that there was no instruction given to the learned Advocate to submit in the manner as has been recorded by the learned Tribunal below. Paragraph 45 reads such: "45. That your petitioner submits that all along he raised dispute against the said impugned transfer order issued by the respondent No.3. So he cannot give instruction to his learned advocate that he is willing to join Burdwan Division. So the order of the Hon'ble CAT dated 22.10.2010 is mechanical and without due application of mind, perverse and that order should be quashed." Hence, the issue involved herein is very short. 4. So he cannot give instruction to his learned advocate that he is willing to join Burdwan Division. So the order of the Hon'ble CAT dated 22.10.2010 is mechanical and without due application of mind, perverse and that order should be quashed." Hence, the issue involved herein is very short. 4. FROM the order under challenge, it appears that there is a categorical finding of the learned Tribunal below to this effect that learned Advocate for the writ petitioner, who was applicant therein, agreed to join in the transferred post and thereafter to file representation seeking appropriate posting and learned Tribunal accordingly passed necessary direction to consider representation. Whether the contention of the writ petitioner in paragraph 45 could be considered by us, we need not wait further in view of the settled legal position of law wherein it is held that the record of Court or Tribunal recording any finding/observation would be considered by the superior or Higher Court as a real state of affairs and Superior Court will not interfere with the said finality/observation of the order on the basis of any affidavit filed by the litigant controverting the finding recorded by the Court below. Reliance is placed to the judgement passed in the case Mount Carmel School Society v. Delhi Development Authority reported in (2008) 2 SCC 141 wherein the Apex Court held to this effect "record made by a judge to be expected as correct - question whether a particular plea raised but not dealt with by the judge concerned could not be considered by the Higher Court - remedy available in such type of cases to file application for review before the said judge". The said principle is old one which has been reiterated by the Apex Court. Long back in the year 1926, Privy Council considered that issue in the case Shyam Sunderam v. Subramonium reported in AIR 1926 Privy Council 136 where Lord Atkinson held - we are bound to accept the statements of the judges recorded in their judgements, as to what transpired in Court. We cannot allow the statements of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. We cannot allow the statements of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges' say in the Judgements that something was done, said or admitted before them, that has to be the last word on the subject and remedy to call attention of the Court on such issue". Some view was expressed by Sir Ashutosh Mookherjee in the case Sarat Chandra v. Bivabati Debt reported in AIR 1922 (Cal.) 584. It was re-echoed in the case King Emperor v. Barendra Kumar reported in AIR 1924 (Cal) 257 (Division Bench). Lord Buck Master also opined in the same tune in the case Madhusudan v. Chandrabati reported in 21 CWN 897. The Apex Court also considered the same principle and applied it, in different cases. In the case State of Maharashtra v. Ramdas Srinivas Nayak reported in AIR 1982 SC 1249 Court held "judges record is conclusive neither High Court nor the litigant may claim to contradict it, except before the judge's himself but nowhere else". Same view was reiterated by the Apex Court in Bhabnagar University v. Palitana Sugar Mills Pvt. Ltd. reported in AIR 2003 SC 511 , Sankar Prasad Mondal v. State of Bihar reported in (2003) 9 SCC 519 , Central Bank of India v. Brajlal Kapur Chand Gandhi reported in (2003) 6 SCC 573 and Guruvayur Devaswom Managing Committee v. C.K. Rajari reported in (2003) 7 SCC 546 , a judgement of 3-judges Bench. In the case Bhagwati Prasad Bhagwati Devi v. Delhi State Mineral Development Corporation reported in (1990) 1 SCC 361 the Apex Court held" wrong statement recorded alleged by the party on controverting it, is not permissible - parties are required to file application praying correction of such statement before the Court who passed order". In that case section 152 of the Code of Civil Procedure was considered and applied. Having regard to the aforesaid settled legal position, we cannot accept the contention of the writ petitioner to set aside the order of learned Tribunal below. We have to accept the finding of the learned Tribunal below as a right submission recorded which was submitted by the learned Advocate for the writ petitioner before him. 5. CONSIDERING the issue in that angle as it is a consent order, there is no merit in the writ application. The writ application accordingly stands dismissed. 6. We have to accept the finding of the learned Tribunal below as a right submission recorded which was submitted by the learned Advocate for the writ petitioner before him. 5. CONSIDERING the issue in that angle as it is a consent order, there is no merit in the writ application. The writ application accordingly stands dismissed. 6. LET xerox certified copy of this order, if applied for, be given to the learned Advocates appearing for the parties expeditiously. Dr. Mrinal Kanti Chaudhuri, J.-I agree. Writ application dismissed.