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2013 DIGILAW 2971 (MAD)

R. John Wilson v. Union of India rep. By its Chief General Manager, BSNL Chennai Telephones

2013-08-19

M.JAICHANDREN, M.VENUGOPAL

body2013
Judgment : M. Venugopal, J. 1. The Petitioner has preferred the instant Review Petition before this Court to review the order of dismissal passed by this Court dated 11.06.2013 in W.P.No.13274 of 2012. 2. Earlier, this Court, on 11.06.2013, in W.P.No.13274 of 2012 [filed by the Writ Petitioner/Review Applicant], has, inter alia, observed, in para 7, that 'On going through the entire materials placed on record, we do not find any reason to interfere with the order passed by the Tribunal in dismissing the original application, which was filed by the petitioner against the order of dismissal from service by the Disciplinary Authority/third respondent on the ground of involvement in a criminal case, which ended in conviction and sentence of two years rigorous imprisonment, and later, modified to that of six months rigorous imprisonment by the Appellate Authority/second respondent. When the petitioner went to the Hon'ble Supreme Court against the conviction and sentence of six months imprisonment imposed by the Appellate Court, the Supreme Court confirmed the punishment imposed by the Appellate Authority, based on which, he was removed from service' and consequently, dismissed the Writ Petition without costs, thereby affirming the order dated 20.03.2012 passed by the Central Administrative Tribunal in dismissing the Original Application No.1143 of 2010. 3. The Review Applicant/Writ Petitioner (in person) submits that in the order in W.P.No.13274 of 2012 dated 11.06.2013, this Court categorically observed that he had rendered 11 years of service in the Respondents 1 to 3/Department and before passing the order of dismissal, the Respondents/Department should have considered the service rendered by him in the said Department. 4. It is the contention of the Applicant/Petitioner that the Respondents/Department should have given him the minor punishment or compulsory retirement from service which would have enable him atleast to claim his service benefits with a view to carry on his rest of his life. It is the further plea of the Review Applicant that the order dated 11.06.2013 in W.P.No.13274 of 2012 passed by this Court in dismissing the Writ Petition takes away his right. 5. It is the further plea of the Review Applicant that the order dated 11.06.2013 in W.P.No.13274 of 2012 passed by this Court in dismissing the Writ Petition takes away his right. 5. Added further, it is the stand of the Applicant/Petitioner that this Court, on 10.04.2013, the 1st Respondent, who appeared in person before this Court, suggested him to file a review petition by the Petitioner to review the punishment imposed against him on administrative grounds and pass appropriate orders, to convert the punishment of removal from service to that off compulsory retirement. Furthermore, eight weeks time was granted to the 1st Respondent to consider the review petition to be filed by the Petitioner and pass appropriate orders. 6. According to the Review Applicant/Writ Petitioner, this Court noted that the 1st Respondent miserably failed to pass any order on the Review Petition filed by the Petitioner pursuant to the interim order passed by this Court in W.P.No.13274 of 2012 dated 10.04.2013 and this shows that the 1st Respondent has not taken any initiative steps to pass orders on the Review Petition. 7. It is the specific case of the Review Applicant that due to false theft story, he was dismissed from service and that he is unemployed and suffers like anything to run his family. 8. Conversely, it is the submission of the Learned Counsel for the Respondents 1 to 3 that the Review Applicant/Writ Petitioner, in the year 2001, while serving as Group 'D' Employee in the Office of the 3rd Respondent, Chennai Telephones, was involved in a cable theft criminal case in C.C.No.356 of 2001 and that he was convicted under Section 379 of Indian Penal Code and sentenced to undergo rigorous imprisonment for 24 months and was directed to pay a fine of Rs.2000/-and in default of payment to undergo rigorous imprisonment for three months, by the Judicial Magistrate, Arakkonam, Vellore District, in terms of the Judgment dated 06.08.2004. 9. The Learned Counsel for the Respondents 1 to 3 brings it to the notice of this Court that the Review Applicant/Writ Petitioner brings it to the notice of this Court that the Review Applicant/Writ Petitioner filed Crl.A.No.113 of 2004 on the file of the Learned Principal Sessions Judge, Vellore, as against the Judgment dated 06.08.2004 in C.C.No.356 of 2001 passed by the trial Court and in Appeal, the Judgment of the trial Court was affirmed on 03.01.2005. 10. Continuing further, the Learned Counsel for the Respondents 1 to 3 invites the attention of this Court that the Review Applicant/Writ Petitioner preferred Crl.R.C.No.124 of 2005 as against the Judgment in C.A.No.113 of 2004 dated 03.01.2005 passed by the Learned Principal Sessions Judge, Vellore and this Court, on 27.07.2007, disposed of the Criminal Revision Petition by confirming the conviction, but modified the sentence imposed on the Revision Petitioner [Review Applicant -Writ Petitioner] to 6 months rigorous imprisonment, instead of two years rigorous imprisonment imposed by the Court below, apart from the fine amount already paid by him, as per the Judgment of the trial Court. Not satisfied with the order passed by this Court in Crl.R.C.No.124 of 2005 dated 27.07.2007, the Review Applicant filed S.L.P. before the Hon'ble Supreme Court and that also was dismissed on 26.05.2008. 11. The Learned Counsel for the Respondents 1 to 3 submits that the Review Applicant was dismissed from service, by an order dated 15.04.2005 issued by the 3rd Respondent/Disciplinary Authority, as per Rule 19(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 with effect from 15.04.2005. 12. That apart, the Review Applicant (Appellant) preferred an Appeal before the 2nd Respondent/Appellate Authority as against the order dated 15.04.2005 passed by the 3rd Respondent/Disciplinary Authority, in dismissing him from service and that the Appeal was disposed of, in confirming the punishment imposed by the Disciplinary Authority, through an order No.GM(North)/Disp. Proceedings/RJW/ 2010-11 dated 21.04.2010. 13. The Learned Counsel for the Respondents 1 to 3 proceeds to submit that the Review Applicant filed O.A.No.1143 of 2010 on the file of Central Administrative Tribunal to quash the dismissal order passed by the Appellate Authority and consequently, to reinstate him into service with all monetary benefits. In this connection, the Learned Counsel for the Respondents points out that the Central Administrative Tribunal passed an order on 20.03.2010, by dismissing the Original Application No.1143 of 2010. 14. The Review Applicant, on being dissatisfied with the order dated 20.03.2012 passed by the Central Administrative Tribunal in dismissing the O.A.No.1143 of 2010, filed W.P.No.13274 of 2012 before this Court. 15. 14. The Review Applicant, on being dissatisfied with the order dated 20.03.2012 passed by the Central Administrative Tribunal in dismissing the O.A.No.1143 of 2010, filed W.P.No.13274 of 2012 before this Court. 15. According to the Learned Counsel for the Respondents 1 to 3, this Court, after going through the entire materials placed on record, had opined in emphatic terms that it did not find any valid reason to interfere with the order passed by the Central Administrative Tribunal in dismissing the Original Application in O.A.No.1143 of 2010 and consequently, dismissed the Writ Petition without costs. 16. At this juncture, it is not out of place for this Court to point out that this Court on 10.04.2013 in W.P.No.13274 of 2012 passed the following order: "Heard. Mr. alasubramanian, the Chief General Manager, the first respondent herein, suggested to file a review petition by the petitioner to review the punishment imposed against him on administrative grounds and pass appropriate orders, to convert the punishment of removal from service to that of compulsory retirement. Therefore, eight weeks time is granted to the first respondent to consider the review petition to be filed by the petitioner and pass appropriate orders. Post after eight (8) weeks." 17. The Learned Counsel for the Respondents 1 to 3 contends that the Review Petition of the Review Applicant dated 18.04.2013 addressed to the 1st Respondent and another was filed belatedly and as per Rule, the said Review Petition was to be filed within 45 days on disposal of Appeal by the Appellate Authority and in the present case on hand, the Review Applicant filed Review Petition dated 18.04.2013 after an inordinate delay of about three years. However, the delay in filing the Review Petition was condoned and the Review Petition was considered on merits by the 1st Respondent (Reviewing Authority), who ultimately dismissed the Review Petition, by, among other things, observing that 'The Review Applicant was not a physically handicapped person at the time of entry into the Department. He did not become physically handicapped while carrying out any office/ Departmental work and also not at the workplace' and in view of the fact that the Applicant had committed theft of cable property belonging to the Department, which was a grave misconduct, he was awarded with severe punishment of 'Dismissal from Service' by the Disciplinary Authority and subsequently, affirmed by the Appellate Authority. 18. 18. It is to be borne in mind that in law, the term 'Review' literally and even judicially means re-examination or re-consideration of the subject matter in issue. 19. No wonder, Power of Review is not to be confused with the power of Appellate Court enabling it to correct all errors. After all, 'Review' erases the previous Order/Judgment and operates as law from the inception. In fact, a Court of Law would not go into the merits of the case in Review Petition. 20. One cannot ignore a very pivotal fact that it is the trend of law that if all questions raised by counsel for Review Petitioner have been dealt with by a Court of Law by Judgment/Order, then, the Review Petition prima facie does not lie, as opined by this Court. 21. This Court recalls and recollects the decision of the Hon'ble Supreme Court in Raja Shatrunji V. Mohammad Azmat Azim Khan and others, 1971 (2) Supreme Court Cases 200 at page 204, wherein, it is held that 'The grounds for review are the discovery of new matters 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 order made, or the review is asked for on account of some mistake or error apparent on the face of record'. 22. Further, this Court is alive to the fact that there is nothing in Article 226 of the Constitution which precludes this Court from exercising the power of review which is inherent in every Court of plenary jurisdiction to prevent miscarriage of Justice or to correct grave and palpable errors committed by it. Also that, an error must be one which is apparent on mere looking of the record without requiring any long drawn process of reasoning. 23. Equally, it is the well settled preposition of law that 'Review Petition' cannot be allowed to be 'an appeal in disguise' as per the Division Bench decision of this Court in B.Dhanalakshmi V. M.Shajahan and others, AIR 2004 Madras 512. 24. 23. Equally, it is the well settled preposition of law that 'Review Petition' cannot be allowed to be 'an appeal in disguise' as per the Division Bench decision of this Court in B.Dhanalakshmi V. M.Shajahan and others, AIR 2004 Madras 512. 24. Apart from the above, this Court cites the Full Bench decision in Commissioner of Sales Tax V. Hukumchand Mills, 2005-Vol.139 Sales Tax Cases at page 1, at special page 3, wherein, it is laid down as follows: "(ii) that while the power of review can be exercised for correction of mistake, review is not an appeal in disguise for correction of an erroneous decision. This limited power cannot be exercised to substitute a view. The possibility of two views on a legal question is no ground for review. A litigant cannot seek review of a judgment merely for the purpose of rehearing and a fresh decision of the case. A review proceeding cannot be equated with the original hearing of the case." 25. In the decision Sharda Bai and another V. Padamlal and others, 2003 A I H C 1756 (A.P.), it is held that 'All contentions raised and decided in main proceedings cannot be reopened under the guise of review petition'. 26. As far as the present case is concerned, this Court, on a careful consideration of respective contentions and also after going through the order passed by this Court in W.P.No.13274 of 2012 dated 11.06.2013, comes to an inescapable conclusion that there are no errors apparent on the face of record. Further, this Court is of the considered view that the procedural facility of filing a Review Petition is not an 'Appeal in Disguise'. Even otherwise there are no prima facie sufficient reasons adduced on behalf of the Review Applicant to allow the Review Application. In short, this Court holds that the Review Application filed by the Review Applicant/Writ Petitioner is per se not maintainable in law, inasmuch as the Review Applicant cannot be permitted to reopen the main proceedings under the garb of 'Review'. Looking at from any angle, the Review Application sans merits and it consequently fails. 27. In the result, the Review Application is dismissed, leaving the parties to bear their own costs. Looking at from any angle, the Review Application sans merits and it consequently fails. 27. In the result, the Review Application is dismissed, leaving the parties to bear their own costs. It is made clear by this Court that the dismissal of the Review Application will not preclude the Review Applicant/Writ Petitioner to pursue his further remedy before the competent forum (if he so desires/advised), as against the order dated 07.06.2013 in CGM/Review/RJW/2013-14/1 passed by the 1st Respondent (Reviewing Authority), in the manner known to law.