Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 142 (MAD)

Union of India v. Registrar, Central Administrative Tribunal, Madras Bench, Chennai

2014-01-22

N.PAUL VASANTHAKUMAR, R.MAHADEVAN

body2014
Judgment R. Mahadevan, J. This Review Application has been filed against the order dated 16.04.2012 in W.P.No.13900 of 2011 after withdrawing the Special Leave Petition with liberty to file the Review Application stating that the merger of the posts of Head Ticket Examiner and Deputy Chief Ticket Inspector with effect from 01.01.2006 was not placed before this Court. 2. It is claimed by the petitioners that the posts of Head Ticket Examiner and Deputy Chief Ticket Inspector got merged with effect from 01.06.2006 retrospectively by the VI Pay Commission on 04.09.2008, and therefore, the second respondent is not entitled to promotion as Deputy Chief Ticket Inspector as his penalty expired only on 22.09.2008. Initially, the Writ Petition was filed challenging the order of the Tribunal in O.A.No.470 of 2009 dated 20.08.2010 and the order in Review Application No.37 of 2010 dated 18.01.2011. The Writ Petition was dismissed on 16.04.2012. 3. The learned counsel for the petitioners urged that this Hon’ble Court had earlier failed to consider the various contentions raised and that the order passed by the Tribunal is against the Railway Services (Revised Pay) Rules, 2008 which came into effect from 01.01.2006. The learned counsel reiterating his contentions in the writ petition argued that after the expiry of the penalty, the second respondent’s pay has been fixed based on the VI Pay Commission Rules on par with his junior. The learned counsel further contended that by the time, the penalty had expired, the VI Pay Commission had come into force and hence prayed for setting aside the orders of the Tribunal Below. 4. In reply, the learned counsel for the second respondent contended that there is no perversity in the orders of the Tribunal. The Writ Petitioners raised the very same contentions in the Original Applications, then in the Review Application before the Tribunal, then in the Writ Petition, then in the Special Leave Petition and withdrew the Special Leave Petition as if the fact of merger was not brought to the knowledge of this Court earlier. The learned counsel also placed reliance on the Board’s Letter No.E (D& A) 62 RG6-46 dated 30.07.1964 wherein after expiry of the penalty, the seniority should be fixed in the higher service , grade or post or the higher time scale at what it would have been but for his reduction. The learned counsel also placed reliance on the Board’s Letter No.E (D& A) 62 RG6-46 dated 30.07.1964 wherein after expiry of the penalty, the seniority should be fixed in the higher service , grade or post or the higher time scale at what it would have been but for his reduction. The learned counsel further contended that the plea regarding merger was already considered and negatived by this Court and therefore sought for dismissal of the Review Application. 5. Heard the learned counsel for the Review Applicants and the learned counsel for the second respondent. 6. The scope for review is borrowed from Order XLVII of CPC. Recalling the earlier order must be done only in exceptional circumstances as the resultant effect would set at naught the actions taken in compliance of the earlier orders. There must be an error apparent on the face of the record or some evidence, which though could not be produced after due diligence if produced, would result in a different decision or for any other sufficient reason, provided the person seeking review must prove that the existence of the document was not within his knowledge earlier. If even on the consideration of the document same decision is possible, the Courts would refrain to interfere. 7. In the judgment reported in (1999) 9 SCC 596 [AJIT KUMAR RATH vs. STATE OF ORISSA], the Hon’ble Apex Court has in paragraphs 30 and 31 held as follows: “30.The provisions extracted above indicate that the power of review available to the Tirbunal is the same as has been given to a counter under Section 114 read with Order 47 CPC. The Power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on the discovery of new and important matter 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 order was made. The power can also be exercised on the account of some mistake or error apparent on the fact of record or for any other sufficient reason. The power can also be exercised on the account of some mistake or error apparent on the fact of record or for any other sufficient reason. A review cannot be claimed or asked merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression “any other sufficient reason” used in order 47 Rule 1 means a reason sufficiently analogous to those specified in the rule. 31. Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of liberty given to the Tribunal under the Act to review its judgment”. 8. In the judgment reported in (2013) 7 SCC 615 [KHELA BANERJEE AND ANOTHER vs. CITY MONTESSORI SCHOOL AND OTHERS], the Hon'ble Apex Court dismissed the Application for Review holding that the error was not germane to the controversy adjudicated. 9. In the judgment reported in (1980) 2 SCC 167 [NORTHERN INDIA CATERERS (INDIA) LTD. vs. Lt. GOVERNOR OF DELHI] in paragraph 9 the Hon'ble Apex Court held as follows: “Now, besided the fact that most of the legal material so assiduously collected and placed before us by the learned Additional Solicitor General, who has now been entrusted to appear for the respondent, was never brought to our attention when the appeals were heard, we may also examine whether the judgment suffers from an error apparent on the face of the record. Such an error exists if of two or more views canvassed on the point it is possible to hold that the controversy can be said to admit of only one of them. If the view adopted by the court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record” 10. In yet another judgment reported in (2013) 8 SCC 320 [KAMLESH VERMA vs. MAYAWATI AND OTHERS], the Hon’ble Apex Court after examining various judgments passed earlier has held as follows: “12. In yet another judgment reported in (2013) 8 SCC 320 [KAMLESH VERMA vs. MAYAWATI AND OTHERS], the Hon’ble Apex Court after examining various judgments passed earlier has held as follows: “12. This Court has repeatedly held in various judgments that the jurisdiction and scope of review is not that of an appeal and it can be entertained only if there is an error apparent on the face of the record. A mere repetition through different counsel, of old and overruled arguments, a second trip over ineffectually covered grounds or minor mistakes of inconsequential import are obviously insufficient..........” In the above judgment, the Hon'ble Apex Court has laid down the principles as under: “19. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. Summary of the Principles: 20. Thus, in view of above, the following grounds of review are maintainable as stipulated by the statute: 20.1. When the review will be maintainable:- (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of record; (iii) Any other sufficient reason. The words “any other sufficient reason” has been interpreted in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Others (1955) 1 SCR 520 , to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The same principles have been reiterated in Union of India Vs Sandur Manganese & Iron Ores Ltd. & Ors., JT (2013) 8 SC 275. 20.2. When the review will not be maintainable: (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. 20.2. When the review will not be maintainable: (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an errror which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.” 11. Upon perusal of the order dated 16.04.2012, we find that the merger of posts from 01.01.2006 was raised repeatedly before all forums including this Court, and the same was rejected. The Tribunal had considered that the juniors of the second respondent were promoted by proceedings dated 04.05.2006 and therefore after the expiry of the penalty, the second respondent was entitled to be promoted as Deputy Chief Ticket Inspector and fixed in the same scale of pay of 5500-9000 with effect from 22.09.2008. No additional material or new argument has been put forward before us by the writ petitioners. All that is sought is a change of opinion on the same facts and documents. Once a point has been raised and negatived, the same point cannot be argued under the guise of review. The Review Application cannot be used as a tool for change of opinion. This Application squarely falls in the second limb of the principles laid down by the Hon'ble Apex Court in the judgment reported in (2013) 8 SCC 320 [KAMLESH VERMA vs. MAYAWATI AND OTHERS]. Hence the Review Application fails and is hereby dismissed. No costs.