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2013 DIGILAW 488 (JK)

State Of J&K v. R. K. Zalpuri

2013-08-29

Mansoor Ahmad Mir, MUZAFFAR HUSSAIN ATTAR

body2013
Per Mansoor, J. 1. Challenging the judgment and order of learned writ court passed in SWP No. 352/2006 dated 14th May, 2010, a Letters Patent Appeal being LPA No. 102/2010, had been dismissed vide judgment and order dated 20th October, 2011, which is sought to be reviewed by the petitioner/ appellant by the instant Review Petition. 2. Heard learned counsel for the parties and considered the matter. 3. Learned counsel for review petitioner argued that there are some errors/mistakes apparent on the face of record which warrant exercise of powers in terms of Section 114 read with Order XLVII of the Code of Civil Procedure, for short as CPC. 4. Review petition in hand pleads that appellants/ petitioners had specifically averred in the Letters Patent Appeal, for short LPA that, while passing the judgment in a writ petition, the learned Writ Court has not considered the material on record, therefore, the judgment rendered is bad. It is further stated in the review petition in hand that learned Division Bench while disposing off the LPA, has recorded that challenge to the judgment is only to the extent that appellants have been left without any remedy, which is incorrect. In fact, as stated above, the appeal had been preferred on the ground that impugned judgment is bad because it has been passed without appreciating the material on record. It being so, the mistake is, argued to be, apparent on the face of record and a review, therefore, is inevitable. 5. To appreciate the matrix of the petition in hand, the origin of the controversy needs to be understood, therefore, account of the events may be stated, thus: 6. Respondent serving as Senior Assistant in the office of Resident Commissioner, New Delhi, was dismissed from service in terms of Clause (viii) of Rule 30 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, for short CCA, for misappropriating an amount of Rs. 2,68,317.00. 7. Challenging the dismissal before this court, respondent prayed for quashment of the dismissal order by the medium of a writ petition being SWP No. 352/2006. Writ court allowed the petition and quashed the order of dismissal. Against the said judgment, appellants went in appeal with certain pleas. The appeal was dismissed vide judgment and order dated 20th October, 2011. Against this judgment and order present review has been filed. 8. Writ court allowed the petition and quashed the order of dismissal. Against the said judgment, appellants went in appeal with certain pleas. The appeal was dismissed vide judgment and order dated 20th October, 2011. Against this judgment and order present review has been filed. 8. We have examined the matter and gone through the judgment dated 20th October, 2011. The contention that mistake is apparent on the face of record is imaginary and does not necessitate the review, for, Mr. Javed Iqbal, learned counsel for appellants has confined his argument to the extent that appellants have been left without any remedy. While elaborating his contention, he has stated that appellants have not been allowed to conclude enquiry proceedings after following the mandate of Rule 33 and 34 of CCA. It is apt to reproduce paragraphs 2, 6 and 7 of the judgment under review herein, thus:- "Learned counsel for appellants submits that the learned Single Judge's Order was not sustainable as the State has been left without any remedy to proceed against the delinquent Government Servant. He, accordingly, submitted that the order passed by the learned Single Judge needs modification. Although the appellants' dismissal was set aside by the Court finding non-compliance of the provisions of Rule 34 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, yet it cannot be said that the appellants have been left without any remedy to proceed against the delinquent employee on complying with the requirement of Rule 34. The learned State counsel's contention that the appellants have been left without any remedy to proceed against the respondent may not, therefore, be a correct proposition of law." 9. The reproduced text makes it explicit that petitioners/ appellants have not pressed into service the other grounds taken in the memo of appeal. 10. No averment has been taken in the review petition also to the effect that learned appellants' counsel had either attacked the impugned writ court judgment during arguments on all the grounds taken in the memo of appeal. Thus it can very safely be held that appellants/ review petitioners have not pressed the other grounds into service. Therefore there is no error on the face of record. 11. It is worthwhile to mention herein that impugned judgment is passed at the back of the respondent/ writ petitioner. 12. Thus it can very safely be held that appellants/ review petitioners have not pressed the other grounds into service. Therefore there is no error on the face of record. 11. It is worthwhile to mention herein that impugned judgment is passed at the back of the respondent/ writ petitioner. 12. Even otherwise writ petitioner had specifically averred that writ respondents/ appellants have not furnished copy of the proceedings to him. The contention of the writ petitioner/ respondent herein has not been denied by the appellants. It is apt to reproduce relevant portion of paragraph 3 of the reply of the appellants filed in opposition to writ petition, herein, thus: ".... He was provided copies of the records as were produced against him by the Govt. during the enquiry. The petitioner as well was permitted to cross-examine the witnesses and to produce his own defence, consequent to the conduct of the enquiry, the enquiry officer as well returned a finding of guilt against the petitioner...." 13. It is also apt to reproduce reply in opposition to ground M of the writ petition, herein, thus:- "In reply to ground (m), it is reiterated that the mandate of the rules has been fully adhered to by the respondents. The petitioner has been conveyed copy of the enquiry report, which was required to be furnished to him under rules. Neither the petitioner has shown nor as a matter of fact any prejudice was caused to him either during the course of enquiry proceedings or after issuance of show cause notice." 14. Thus writ respondents, appellants have specifically averred that only copies of record which were produced during the enquiry were furnished to the writ petitioner/ respondent herein and it is not averred by the writ respondents/ appellants that copies of proceedings were furnished to him as was required as per the mandate of Rule 33 and 34 of CCA. 15. In the circumstances, the writ court has rightly quashed the order of dismissal and Division Bench also made it clear in terms of judgment under review that respondents/ appellants/ department is at liberty to conclude the enquiry in terms of Rule 34 of CCA. Thus the argument advanced by Mr. Kawoosa, that there does appear a mistake apparent on the face of record is incorrect. 16. Thus the argument advanced by Mr. Kawoosa, that there does appear a mistake apparent on the face of record is incorrect. 16. It is beaten law of the land that power of review is to be exercised in limited circumstances and that too as per the mandate of Order XLVII CPC. The remedy available in the shape of review cannot be allowed to be a masquerade appeal. 17. Even otherwise the Apex Court has, consistently, in unambiguous terms, held that review cannot be treated like an appeal in disguise. It is apt to reproduce paragraph 16 and 17 of the judgment delivered in case titled Haryana State Industrial Development Corporation Ltd. v. Mawasi & Ors. reported as AIR SCW 2012, 4222, herein, thus: "16. In Lily Thomas v. Union of India (2000) 6 SCC 224 , R.P. Sethi, J., who concurred with S. Saghir Ahmad, J., summarised the scope of the power of review in the following words (Para 15): "Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised." 17. In Haridas Das v. Usha Rani Banik (2006) 4 SCC 78 , the Court observed: "The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict." 18. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict." 18. Keeping in view the above discussion and the mandate of Section 114 of the Code of Civil Procedure, for short CPC, read with Order XLVII of CPC, no ground is made out for interference. 19. We have otherwise examined the controversy and we do not find any mistake apparent on the face of record which requires correction. 20. We are, in the circumstances, of the considered view that review petition is not pennyworth even to record our agreement with the contentions so raised in its support. 21. Summing up the above narration we dismiss the review petition as meritless. 22. Return the record.