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2012 DIGILAW 73 (CAL)

Barun Kumar Das v. STATE OF WEST BENGAL

2012-01-19

ASHIM KUMAR BANERJEE, SOUMEN SEN

body2012
JUDGMENT SOUMEN SEN,J 1. THE petitioner filed this application for review of an order passed on 11th March, 2008 in FMA No.2159 of 2007. The said application was accompanied by an Application for Condonation of Delay of about 1298 days. 2. WE propose to dispose of the application filed for condonation of delay being CAN No.10607 of 2011 first before deciding the application for review. 3. THE petitioner is of advanced age and is a senior citizen. The petitioner submits that he has been diligent all throughout in pursuing the said appeal. After the said judgment was delivered he suffered from various physical and mental ailments. He also got in touch with the High Court Legal Service Committee for allotment of an Advocate to pursue the present proceeding and ultimately on 28th July, 2011, one Ms. Pratima Mishra was allotted the said work by the Legal Service Committee. Thereafter, Ms. Pratima Misra could not take any steps because of the ailment of her mother. The mother of the said advocate died on 22nd August, 2011. It is only after she resumed her work that the present review application was prepared and filed. 4. WE are satisfied with the explanation for not preferring the review application within time and sufficient cause being shown, we are inclined to allow the said application being CAN No.10607 of 2011 for condonation of delay and the same is allowed. 5. THE instant review application is arising out of a judgment and order dated 11th March, 2008 passed by a Division Bench presided over by one of us, namely, Justice Ashim Kumar Banerjee. The other learned Single Judge, namely, Justice Tapas Kumar Giri having retired, the said application is taken up by the present Division Bench. The Division Bench by the judgment dated 11th March, 2008 dismissed the appeal and upheld the order passed by the Tribunal. 6. THE petitioner initially challenged the order of the Tribunal passed on 24th July, 1990 upholding the penalty of dismissal against the petitioner. The said award of the Seventh Industrial Tribunal dated 24th July, 1990 was challenged under Article 226 of the Constitution of India being C.O. No.1996(W) of 1991. The learned Single Judge after considering the matter at length upheld the order passed by the Tribunal in exercise of its jurisdiction under Section 11A of the Industrial Disputes Act. 7. The said award of the Seventh Industrial Tribunal dated 24th July, 1990 was challenged under Article 226 of the Constitution of India being C.O. No.1996(W) of 1991. The learned Single Judge after considering the matter at length upheld the order passed by the Tribunal in exercise of its jurisdiction under Section 11A of the Industrial Disputes Act. 7. THE learned Single Judge took note of various contradictory and inconsistent stands taken by the petitioner before the Enquiry Officer and upon consideration of the materials on record came to the conclusion that the plea of the petitioner that enquiry had been held ex parte, could not be sustained in view of the fact that the said delinquent employee had not deliberately participated in the said proceeding and, accordingly, it was no more open for him to allege violation of principles of natural justice. 8. THE learned Single Judge also took note of the fact even before the Tribunal, the delinquent, except in making attempt to establish that no notice of the enquiry was served, "did not utter a word on the merits of the charges levelled against him". The learned Tribunal, while deciding the said reference, came to a definite conclusion that the domestic enquiry had been conducted against the employee petitioner in a fair and proper manner and the same was valid. Such conclusion was arrived at on scrutiny of the materials on record. The Tribunal did not find any reason to interfere with the findings of the Enquiry Officer and order of the Disciplinary Authority upholding the report of the Enquiry Officer. The Tribunal did not find any reason either to interfere with the quantum of punishment, namely, dismissal. The Tribunal came to the conclusion that having regard to the gravity of the offence with which the employee had been charged and having regard to the fact that such charges had been proved the order of dismissal passed in the said proceeding was commensurate with the misconduct and was perfectly justified. 9. THE learned Single Judge, while upholding the award of the Tribunal, did not find any error apparent on the face of the record or perversity in the finding of the Tribunal or manifest abuse of the process of law and, accordingly, refused to interfere with the award of the Tribunal. 9. THE learned Single Judge, while upholding the award of the Tribunal, did not find any error apparent on the face of the record or perversity in the finding of the Tribunal or manifest abuse of the process of law and, accordingly, refused to interfere with the award of the Tribunal. The present petitioner, being aggrieved by the said order of the learned Single Judge, preferred an appeal, which, ultimately culminated in the judgment dated 11th March, 2008. The Division Bench also concurred with the view taken by the Tribunal and observed as follows: "We have carefully perused the award of the Industrial Tribunal as well as the judgment and order of the learned Single Judge. We have also perused the report of the enquiry. We are of the view that enough opportunity was given to the appellant to defend himself in the proceeding. Each time he tried to stall the proceeding. From the paragraphs quoted (supra) it would appear that he was not in a mood to assist the Enquiry Officer. Significant to note, for last three decades the appellant is trying to stall imposition of punishment by approaching every possible forum. However, he did not utter a single word on the merit of the case. The charges were grave in nature. The charges were proved to the hilt. The appellant contends that he was not afforded adequate opportunity before the Enquiry Officer. He was given opportunity by the Industrial Tribunal. He examined himself. He was allowed to cross-examine the prosecution witnesses. The Tribunal ultimately came to a finding that the proceeding was lawfully conducted and the punishment was appropriate. The learned Single Judge again reviewed the situation and ultimately came to the same conclusion. We do not find any scope of interference therein." 10. NOW, the present application has been filed after a considerable delay for review of the said order passed by the Hon'ble Division Bench. The learned Advocate appearing on behalf of the petitioner submits that his client being a senior citizen of 84 years, should not be allowed to live the rest of his life with the stigma attached to his career by reason of the order of dismissal. It is further submitted that in view of various irregularities committed by the Enquiry Officer, the petitioner as a mark of protest preferred to remain absent and did not participate in the said proceeding. It is further submitted that in view of various irregularities committed by the Enquiry Officer, the petitioner as a mark of protest preferred to remain absent and did not participate in the said proceeding. He submits that all the members selected from time to time as members of the Enquiry Committee were all direct subordinate and accountable to the Senior Curator being the Disciplinary Authority who had issued the order of suspension and such selections of Enquiry Officers were in violation of the express provision of the CCS (CCA) Rules, 1965. 11. IT is argued that the Enquiry was conducted in a fascist manner, ex parte and the finding of the Tribunal as also of the learned Single Judge and the Division Bench proceeded on the basis as if sufficient opportunity was given to the petitioner but the petitioner deliberately avoided to present himself for the said proceeding, is completely erroneous. 12. IT is argued that from the observation of the Hon'ble Division Bench it would not appear that the Division Bench independently considered the main grievance of the petitioner that the Disciplinary Authority had not followed procedure laid down under CCS(CCA) Rules, 1965, and thereby, the petitioner had been denied the principles of natural justice. 13. WE have considered the grounds of review and compared it with the grounds of appeal. The grounds are almost overlapping. Some of the grounds on which the appeal was preferred against the learned Single Judge are set out hereinbelow: "II. For that the learned Judge erred in both law and fact that the notice fixed for enquiry was served through proper channel by registered post; III. For that the learned Judge ought to have held that the enquiry was held ex parte, without any notice to the Appellant. IV. For that the learned Judge erred in both law and fact that the appellant tried to stall the enquiry proceeding; V. For that the learned Judge ought to have held that the enquiry was held in gross violation of principles of natural justice. VI. For that the learned Judge ought to have held that the appellant was denied reasonable and/or an opportunity to defend his case; VII. For that the learned Judge ought to have held that the enquiry was vitiated for gross violation of principles of natural justice and fair play; VIII. VI. For that the learned Judge ought to have held that the appellant was denied reasonable and/or an opportunity to defend his case; VII. For that the learned Judge ought to have held that the enquiry was vitiated for gross violation of principles of natural justice and fair play; VIII. For that the learned Judge erred in law in holding that there was no perversity or error of law on the part of the Tribunal in making its finding and passing the impugned order and the award; XI. For that the learned Judge ought to have held that the action of the disciplinary authority in dismissing the appellant without giving any opportunity to defend his case was illegal, unjustified and mala fide;" 14. IN the present review application, the petitioner is seeking review of the judgment of the Division Bench, inter alia, on the following grounds: "I. For that the judgment dated 11th March, 2008 in FMA No.2159 of 2007 passed by Hon'ble Division Bench suffers from error apparent on the face of the judgment as while passing the judgment Hon'ble Court failed to consider that while conducting the enquiry proceedings, the Disciplinary Authority has failed to follow the Rules envisaged for that purpose. II. For that the judgment dated 11th March, 2008 in FMA No.2159 of 2007 passed by Hon'ble Division Bench suffers from error apparent on the face of the judgment as while passing the judgment Hon'ble Court failed to consider that the Enquiry Committee was biased and was appointed for the purpose of removing the petitioner from the way. III. For that the judgment dated 11th March, 2008 in FMA No.2159 of 2007 passed by Hon'ble Division Bench suffers from error apparent on the face of the judgment as while passing the judgment Hon'ble Court failed to consider that the entire procedure of issuing suspension order till appointment of the Enquiry Committee as well as the enquiry proceedings and report are vitiated with the fact that at no stage the procedure established under the CCS(CCA) Rules 1965 has been followed. IV. IV. For that the judgment dated 11th March, 2008 in FMA No.2159 of 2007 passed by Hon'ble Division Bench suffers from error apparent on the face of the judgment as while passing the judgment Hon'ble Court failed to consider that the circumstance under which the petitioner was compelled to be absent from the proceedings before the Enquiry Committee, which is not formed in accordance with the law and it was apparent that the petitioner would not have got justice in the proceedings. V. For that the judgment dated 11th March, 2008 in FMA No.2159 of 2007 passed by Hon'ble Division Bench suffers from error apparent on the face of the judgment as while passing the judgment Hon'ble Court failed to do justice and appreciate that the only remedy available to the petitioner to record his protest against illegal and arbitrary action of the Disciplinary Authority is to be absent from the proceedings. VI. For that the judgment dated 11th March, 2008 in FMA No.2159 of 2007 passed by Hon'ble Division Bench suffers from error apparent on the face of the judgment as while passing the judgment Hon'ble Court failed to consider that by being absent from the Enquiry Proceedings the petitioner has only raised protest and was not for any guilty feelings or being afraid of facing any enquiry proceedings by proper authority appointed under the CCS(CCA) Rule 1965. VII. For that Hon'ble Division Bench has failed to do justice with independent consideration without being influenced with the wrongful observation of the Courts below." 15. ALL these points which are now sought to be raised in the review were argued before the Hon'ble Division Bench and Hon'ble Division Bench considered each of such points and decided the issue against the petitioner. In fact, by filing the said review application, the petitioner wants to reopen the appeal and attempts rehearing of the said appeal. 16. THE issues sought to be raised in the review application, in our considered opinion, do not come within the purview of Order 47 Rule 1 of the Code of Civil Procedure. Even it is assumed that Order 47 Rule 1 would not strictly apply to an application of review arising out of a writ proceeding we do not find any 'sufficient reason' either to review the said order. 17. Even it is assumed that Order 47 Rule 1 would not strictly apply to an application of review arising out of a writ proceeding we do not find any 'sufficient reason' either to review the said order. 17. THE power to review of an Order passed under Article 226 of the Constitution is not curtailed and/or limited by any provision of the Code of Civil Procedure or other statute but, at the same time, we have to remind ourselves that under the garb of review we should not permit rehearing of the entire appeal. The review proceedings are not meant for rehearing of appeal. The scope and ambit of Order 47 Rule 1, vis-a-vis, the jurisdiction available to High Court, while seeking to review the orders under Article 226 of the Constitution of India, came up for consideration in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharmal in a decision reported in 1979(4) SCC 389 : AIR 1979 SC 1047 in which the Hon'ble Supreme Court in Paragraph 3 held as follows: "It is true as observed by this Court in Shivdeo Singh v. State of Punjab reported in AIR 1963 SC 1909 , there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the power seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A 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." 18. THE said decision was subsequently considered in Meera Bhanja Vs. That would be the province of a court of appeal. A 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." 18. THE said decision was subsequently considered in Meera Bhanja Vs. Nirmala Kumari Choudhury case reported in 1995 (1) SCC 170 in which Their Lordships held, while entertaining a review only on the ground of error apparent on the face of the record, it has to be kept in mind that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be of two opinions. We may also usefully refer to the observations of the Hon'ble Supreme Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale reported in AIR 1960 SC 137 wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record: "An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ." 19. IT is also well-settled that mistake or error apparent on the face of the record has to be self-evident and does not require a process of reasoning and the same is clearly distinct from erroneous decision as has been held in Parsion Devi and Ors. v. Sumitri Devi and Ors. reported in 1997(8) SCC 715 . In the said decision, the Hon'ble Supreme Court was considering the phrase "mistake or error apparent on the face of record". v. Sumitri Devi and Ors. reported in 1997(8) SCC 715 . In the said decision, the Hon'ble Supreme Court was considering the phrase "mistake or error apparent on the face of record". It was held, 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". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter can only be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise". 20. ALTHOUGH the said decision was rendered under Order 47 Rule 1 of the Code of Civil Procedure, it is certainly a guiding principle even for considering an application under Article 226 of the Constitution of India. 21. IN the instant review application, the petitioner applicant, in fact, seeks rehearing of the appeal, which is, is not permissible. 22. IN view of the aforesaid discussion, we are of the view that the instant review application is not maintainable and, accordingly, the same is dismissed, however, there shall be no order as to costs. Urgent xerox certified copy, if applied for, be given to the parties on usual undertaking.