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2011 DIGILAW 552 (JK)

State of J&K and others v. Abdul Majid Dar

2011-10-20

J.P.SINGH, MUZAFFAR HUSSAIN ATTAR

body2011
JUDGMENT 1. In terms of order No. 777 of 1999 dated 17-08-1999, issued by the Inspector General of Police (Armed), J&K, Srinagar, the petitioner (for short review petitioner), a Senior Grade Constable in the J&K Armed Police Force, suffered exit from the said force with effect from 02-04-1999, the date he had absented from duty. This order became subject matter of SWP 1460/99 and was quashed by the learned Single Judge by judgement dated 27-04-2005. The respondents were, however, given liberty to conduct enquiry in accordance with the rules. It was also provided that quashment of the order of dismissal shall not entitle the petitioner to claim back wages/pay/salary. The State, being aggrieved, challenged the judgement by medium of LPA No. 169/06. Appeal was accepted by the Letters Patent Bench of this Court and the judgement of the learned Single Judge was set aside and, consequently, writ petition filed by the review petitioner was also dismissed on 18-10-2007. 2. The review petitioner has prayed for review of the judgment of the Letters Patent Bench and for maintaining the judgment of the learned Single Judge passed in SWP 1460/99. 3. On notice issued, objections have been filed by the respondents. 4. We have heard learned counsel for the review petitioner. 5. Mr. Z. A. Qureshi, learned counsel for the review petitioner, submitted that the period of unauthorized absence from 14-09-1994 to 14-11-1994 was enquired into and the review petitioner was awarded censure and the period of his unauthorized absence aforementioned was treated as earned leave. On review filed, the Commandant, vide his order No. 608 of 1995 dated 16-06-1995, revoked the order of punishment to the extent of awarding censure but other part of the order was maintained. Learned counsel for the review petitioner also submitted that in terms of order No. 1161 of 1997 dated 29-09-1997, the review petitioner was promoted and appointed to the rank of Senior Grade Constable. The learned counsel further submitted that at the time of filing of the writ petition and during the pendency of the LPA, the copies of order NOs. 1506 of 1994 dated 24-12-1994 and 608 of 1995 dated 16-06-1995 were not in possession of the review petitioner and same are now brought on record of the review petition. The learned counsel further submitted that at the time of filing of the writ petition and during the pendency of the LPA, the copies of order NOs. 1506 of 1994 dated 24-12-1994 and 608 of 1995 dated 16-06-1995 were not in possession of the review petitioner and same are now brought on record of the review petition. The learned counsel further submitted that the review petition, in view of the aforementioned developments, which have taken place in the service career of the review petitioner, requires to be allowed and the judgment passed by the Letters Patent Bench recalled. He further submitted that the Letters Patent Bench has wrongly placed reliance on the judgments of the Supreme Court in case titled Kuldeep Singh Versus State of Punjab (1996) 10 SCC 659 and Farooq Ahmad Mir Versus State of J&K (2001) SLJ 182 as the facts in these cases and in the case of the review petitioner are, materially, different. He also submitted that this Court has all the powers to review its order/judgment when same is necessitated in particular facts and circumstances of a case. Learned counsel, in support of his contention, referred to and relied upon the judgement of the Supreme Court in case titled Board of Control for Cricket in India and another ' appellant versus Netaji Cricket Club ' respondent, reported in (2005) 4 SCC 741 and in case titled Rekha Mukerjee ' appellant versus Ashis Kumar Das and another ' respondent, reported in (2005) 3 SCC 427 . 6. Human fallibility is an accepted reality of life. Human beings, being not perfect, their actions and renderings cannot be termed as infallible. Mistakes may be committed, so would require to be corrected. The process of correcting ones renderings cannot be based on exercise of an unbridled power. Human rationale and system's smooth functioning would require exercising of such power by fixing reasonable norms, as otherwise an uncertainty will be created and there will be no end to litigation. It is for this reason that norms fixed and criterion laid, for reviewing of an order/judgement, have to be followed. The function of Courts is to bring to a lawful end the litigation pending on its files. Law Courts are not breeding grounds for uncertainty. 7. It is for this reason that norms fixed and criterion laid, for reviewing of an order/judgement, have to be followed. The function of Courts is to bring to a lawful end the litigation pending on its files. Law Courts are not breeding grounds for uncertainty. 7. Whether the grounds, on which review of the judgement dated 18-10-2007 passed in LPA 169/2006 is sought, would constitute ground in law to review the said judgement, has to be considered in the factual backdrop of this case. Paragraphs 2&3 of the order of dismissal of the review petitioner are reproduced hereunder : 2. Whereas the Sg constable under suspension, was apprehended by police Budgam on 26.5.99.During interrogation he admitted that he had exfliterated across the border to POK for obtaining Training in handling of sophisticated Arms and Ammunition, in the year 1994, with intention to join hands with the militants operating in the valley, to launch a Jihad in order to liberate the State of J&K from the Union of India. He infiltrated to his side alongwith Arms and Ammunition in Nov. 1994 and joined an outlawed organisation, Lashkar-i-Toiba. On his disclosure and at his instance two pistols of Chinese make and 2 (two) Magazines were recovered from his possession on 26.5.99. In this connection case FIR No.114/99 u/s 121,122 RPC, 7/27 IA Act stands registered in police station Beerua. 3. Whereas, the records of the suspendee constable, reveal that he had proceeded on 10+2 days leave w.e.f. 01.9.94 and was due to report back on 14.09.1994 which he had failed to do and finally reported on 14.11.1994 after absence of 81 days on the pretext of illness and had managed a medical certificate from Medical Officer Sub District Hospital Beerua. This aspect also corroborates the admission of the said delinquent, during interrogation, to have exfliterated across the border, having ulterior motive. 8. Contention of the learned counsel for the review petitioner that order No. 150 of 1994 dated 24-12-1994 and order No. 608 of 1995 dated 16-06-1995 were not in possession of the review petitioner at the time of filing of the writ petition, does not stand to reason, in as much as, a specific reference in respect of the unauthorized absence of the review petitioner from 14-09-1994 to 14-11-1994 was mentioned in paragraph 3 of the order of dismissal which was challenged by him in the writ petition. The review petitioner had, thus, an opportunity to deal with this aspect of the matter and since punishment was awarded to him against which he filed a review petition, so both these aspects were within his knowledge and it was a duty cast upon him to refer to these facts in the writ petition. 9. Record of the writ petition was summoned to find out as to whether the review petitioner has made mention of these facts therein. Perusal of the writ petition revealed that the review petitioner had not referred to the said orders in the writ petition. These were not the documents about which he got knowledge after passing of the judgement. Order XLVII Rule 1 of the CPC provides that review of a judgement can be sought on the discovery of new evidence and on that material, which, after 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 order made. At paragraph 12 of the review petition, it is stated that the aforementioned orders were not in possession of the review petitioner at the time when writ petition was filed or when he contested the LPA and same are now being filed along with the review petition to seek review of the judgement. 10. Rule 65 of the Jammu & Kashmir High Court Rules, 1999 provides that the Court may review its judgement or order but no application shall be entertained except on the ground mentioned in Order XLVII Rule 1 of the CPC. In view of the language in which Order XLVII Rule 1 of the CPC is couched, the review petition cannot be entertained and allowed on the basis of the documents now placed on record of the review petition. These documents were within the knowledge of the review petitioner but still, as already stated, he did not make any mention in the writ petition or before the Letters Patent Bench about the same. This ground is not, thus, available in law to the review petitioner for seeking review of the judgement. 11. The order, dispensing with conducting of enquiry and consequent dismissal of the review petitioner, was passed on the ground of misdemeanor including his having crossed the border for undergoing training. This ground is not, thus, available in law to the review petitioner for seeking review of the judgement. 11. The order, dispensing with conducting of enquiry and consequent dismissal of the review petitioner, was passed on the ground of misdemeanor including his having crossed the border for undergoing training. The reason, for dispensing with conducting of enquiry, was considered by the Letters Patent Bench of this Court and was held, on its merits, a valid ground for dispensing with conducting of enquiry as same was not found to be reasonably practicable. Whether the judgements passed in Kuldeep Singh's and Farooq Mir's cases aforementioned were properly applied or not, cannot be a ground in law to review the judgement. If, in the wisdom of the learned counsel for the review petitioner, the judgements have wrongly been applied, the consequence thereof can be that a legally wrong judgement has been delivered. This cannot be said to be a mistake apparent on the face of the record. If a case is stated to have been decided wrongly on merits then it cannot be corrected by filing a review petition. The judgement/order, in such circumstances, can be corrected only by an appellate/superior authority. 12. The review petition cannot be allowed in law, as the reason for dispensing with conducting of enquiry, being not reasonably practicable, was recorded in paragraphs 2&3 of the dismissal order. The orders awarding punishment earlier proceeded on different set of facts, whereas the order of dismissal proceeded on the admission made by the review petitioner in the year 1999. The reason for dispensing with conducting of enquiry was maintained by the Letters Patent Bench. The correctness or otherwise of the said view cannot become subject matter of review petition. This Court cannot, under the color of review, re-hear the case on merits. May be the review petitioner has a strong case on merits, but it can be corrected only by appellate Court and not by a review Court. 13. The power of the Constitutional Court to recall its order/judgement is not circumscribed and controlled by the codal limitations. The Constitutional Court, in order to do justice, ex debito justitiae, may in exceptional and rare cases, recall its order/judgement. 13. The power of the Constitutional Court to recall its order/judgement is not circumscribed and controlled by the codal limitations. The Constitutional Court, in order to do justice, ex debito justitiae, may in exceptional and rare cases, recall its order/judgement. The case in hand, however, does not fall within the ambit of exceptional and rare cases, in as much as, the facts, which are now being projected in the review petition, were within the knowledge of the review petitioner at the time of filing of writ petition. He omitted to refer to them and plead them in the writ petition and even he did not bring these facts to the notice of the Letters Patent Bench, though these were within his knowledge, besides, the administrative decision of dispensing with conducting of enquiry proceeded on different set of facts as delineated hereinabove. 14. The judgements, referred to by the learned counsel for the review petitioner, reiterate the principles on which review of an order/judgement can be sought. The case on hand does not fall in any of the categories enumerated in the aforementioned two judgements. 15. For the above stated reasons, we find no merit in this review petition. Same is dismissed.