Research › Search › Judgment

Madras High Court · body

2015 DIGILAW 1758 (MAD)

Union of India Rep. by the Chief General Manager, Telecommunications, Bharat Sanchar Nigam Limited v. Registrar, Central Administrative Tribunal, Madras Bench

2015-04-01

P.R.SHIVAKUMAR, V.RAMASUBRAMANIAN

body2015
Order 1. These Review Applications have been filed under Order XLVII Rule 1 read with Section 114 of the Code of Civil Procedure praying for reviewing the common order dated 12.04.2013 made in W.P.No.376 and 12348 of 2011 by a Division Bench consisting of two Hon'ble Judges of this Court, who have demitted office after pronouncement of the said judgment and before the Review applications came to be numbered. 2. We have heard Mr.G.Rajagopal, learned Additional Solicitor General appearing for Mr.M.Govindaraj, learned counsel on record for the petitioners in both the review applications, Ms.V.J.Latha, learned counsel appearing on behalf of the respondents 2 to 28 in Revision Application No.244/2014 and Mr.L.Chandrakumar, learned counsel appearing for the second respondent in Revision Application No.245 of 2014 and carefully considered the submissions. 3. The respondents 2 to 29 herein were the persons employed as casual Mazdoors in the Department of Telecommunication during the year 1984. In 1988, a scheme was introduced by letter No.269-29/87/STL dated 18.11.1988 for conferring temporary status on casual labourers whose employment was in currency and who had rendered continuous service at least for a year. The scheme was approved by the Telecom Commission. By the said scheme called "Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of the Department of Telecommunications, 1989" which was brought into force with effect from 01.10.1989, vacancies in Group 'D' cadres in various offices of the Department of Telecommunications were directed to be filled up exclusively by regularisation of casual labourers, except in case of appointments on compassionate grounds, till the absorption of all existing casual labourers fulfilling the eligibility conditions including educational qualification prescribed in the relevant Recruitment Rules, but at the same time providing age relaxation, wherever it would be necessary. As per the said scheme, temporary status would be conferred on all the casual labourers, who were currently in appointment as on the date of the Scheme coming into force and who had rendered continuous service of at least one year, out of which they must have been engaged on work for a period of 240 days. 4. The private respondents were terminated with effect from 01.10.1995 from service on the ground that the records produced by them regarding their service as casual labourers were false and fabricated. The said orders of termination were challenged and separate applications came to be filed by the terminated casual labourers in O.A.No.1286/1995 (Batch). 4. The private respondents were terminated with effect from 01.10.1995 from service on the ground that the records produced by them regarding their service as casual labourers were false and fabricated. The said orders of termination were challenged and separate applications came to be filed by the terminated casual labourers in O.A.No.1286/1995 (Batch). The Central Administrative Tribunal, Madras Bench, Chennai, by order dated 27.02.1996 disposed of the said original applications, quashing the impugned orders of termination, directing that the applicants therein, who were continued to be engaged in accordance with the interim orders of the court or otherwise to be continued to be engaged and directing the re-engagement those applicants who had been dis-engaged as result of the impugned orders, with continuity of service but without back wages for the period of disengagement. However the order permitted the Department to hold an enquiry into the allegation of production of the false service certificates and pass appropriate orders at the conclusion of such enquiry, with the further observation that the applicants, in the event of the orders going against them, would have the right to approach the Tribunal once again. Similar orders came to be passed in O.A.No.838/1997 batch. 5. Subsequent to the said order of the Tribunal, enquiry was conducted and the private respondents were sought to be terminated and notices of termination came to be issued preventing the engagement of the services of the private respondents on the expiry of 30 days from the date of termination notices. The same were challenged in a batch of Original Applications in O.A.No.955/2000 (Batch) and the Tribunal, in its order dated 31.08.2000, held that the matter was enquired into by an Enquiry Committee which gave full opportunity to the private respondents herein to submit their depositions in respect of the alleged irregularity of submitting fraudulent certificates containing false informations with the intention of gaining illegal entry in the Department; that they failed to give any convincing reply to deny the allegations and that hence there was sufficient reason for the Department to terminate the services of the private respondents as casual Mazdoors. However, while concluding the order, besides holding that the Tribunal could not find any infirmity in the orders impugned before the Tribunal, it gave liberty to the private respondents herein to make a representation to the General Manager, Telecommunications, Chengalpattu S.S.A against the impugned orders passed. However, while concluding the order, besides holding that the Tribunal could not find any infirmity in the orders impugned before the Tribunal, it gave liberty to the private respondents herein to make a representation to the General Manager, Telecommunications, Chengalpattu S.S.A against the impugned orders passed. Such a representation came to be made by them only on 26.08.2009 requesting the Department to consider their case afresh and give them an opportunity to serve the Department. 6. Thereafter, the private respondents filed M.A.No.471/2009 and O.A.No.1120/2009 praying for a direction to the petitioners herein to dispose of the above said representations in the light of the recommendation made by the second petitioner dated 04.09.2002. The Tribunal disposed of the said application directing the first petitioner herein to consider and decide the common representation of the private respondents dated 26.08.2009 and pass a reasoned and speaking order in accordance with law, within a period of two months from the date of receipt of a copy of the order of the Tribunal. As against the said order of the Tribunal dated 09.11.2009, the Department did not prefer any writ petition. Thereafter, the Deputy General Manager (Admn.), Chennai Telephones, in his proceedings in No.GM/CPT/LEGAL/CL-TSM/2003-04/67 dated 28.01.2010 held that the private respondents had been terminated after duly following the principles of natural justice as contemplated in Law and full opportunity to them to prove their case was given. He also observed that the private respondents had not made any representation as found in the order of the Tribunal and passed the following order. The relevant part of the said order reads as follows: "It is reiterated that Sri.B.Paul Wilson & others had been terminated after duly following the various obligations giving full opportunity from 1995 to 2000 to prove their case on the basis of natural justice and as per the law of land. The same was upheld by the Hon'ble courts by their judgments as referred above. The appellants have not submitted any material evidence in support of their claim for re-examinations by the competent authority since 2001. Since finality has arrived by a court order and in the absence of any fresh evidence, the prayer of Sri.B.Paul Wilson & others cannot be taken for consideration and thus the common representation of Sri.B.Paul Wilson & others stands disposed off." 7. Since finality has arrived by a court order and in the absence of any fresh evidence, the prayer of Sri.B.Paul Wilson & others cannot be taken for consideration and thus the common representation of Sri.B.Paul Wilson & others stands disposed off." 7. As against the said order of the second petitioner dated 28.01.2010, the private respondents in Rev. Appln. No.244/2014 preferred O.A.No.231/2010 and the 2nd respondent in Rev. Application No.245/2014 preferred O.A.No.520/2010 before the Tribunal. The Tribunal, by a common order dated 10.11.2010, disposed of the same. The operative portion of the order reads as follows: "The application is disposed of in the following terms: (a) The impugned orders dated 28.01.2010 of the second respondent is quashed in so far as the applicants herein are concerned and there will be a consequent direction to the respondents to reinstate the applicants and consider their case for regularisation. However, they are not entitled for monetary benefits when they are not in service, except granting of continuity of service on notional basis. (b) The above exercise shall be completed within a period of eight weeks from the date of receipt of a copy of this order. (c) There will be no order as to costs." 8. As against the said order of the Tribunal, the petitioners approached this court with W.P.No.376/2011 and 12348/2011. The Division Bench by order date 12.04.2013 dismissed the writ petitions confirming the common order of the Tribunal dated 10.11.2010 made in O.A.Nos.231 and 520 of 2010. The said common order of the Division Bench dated 12.04.2013 made in W.P.No.376 and 12348 of 2011 is sought to be reviewed by filing the present review applications. 9. It is the contention of the learned Additional Solicitor General that the challenge made to the notices of termination in the earlier round of litigation ended against the private respondents, since the Tribunal held in its order dated 31.08.2000 that there was no infirmity in the impugned order of termination and that an attempt was made to re-agitate the matter by submitting a representation belatedly and getting a direction from the Tribunal for disposal of the said representation. The further contention of the learned Additional Solicitor General is that the Tribunal as well as the Division Bench failed to consider the question of laches insofar as the order containing an observation that it was open to the private respondents to make a representation to the General Manager, Telecommunications, Chengalpattu SSA was passed as early as on 31.08.2000 itself, whereas the representation came to be made by the private respondents on 26.08.2009, namely 9 years after the said order. 10. The order dated 31.08.2000 came to be made by the Tribunal in the presence of the counsel for the petitioners in the review application. As against the said order directing the first petitioner to consider and decide the common representation dated 26.08.2009 and pass a reasoned and speaking order in accordance with law within a period fixed in the order of the Tribunal, no challenge was made. Having not chosen to challenge the said order, the 2nd petitioner chose to pass impugned order dated 28.01.2010, which was challenged in O.A.Nos.231 and 520 of 2010 by the private respondents. In the counter filed by the review petitioners herein before the Tribunal, the issues of laches and belated submission of the representation were not raised. It seems, it was canvassed before the Division Bench by the review petitioners that a matter which had attained finality by order dated 31.08.2000 could not be reopened on the mere fact that it was observed therein that the private respondents were at liberty to make a representation to the first petitioner and that if such representation was made, the first petitioner should consider and pass orders. The petitioners having suffered an earlier order dated 31.08.2000 in the hands of the Tribunal for the disposal of the representation of the private respondents, could have taken a specific plea that the representation was belated and acting on such belated representation was not proper. Only in such an event the Division Bench would have considered the same and given a finding assigning reasons. In view of the fact that neither the order of the Tribunal nor the order of the Division Bench contain any reference to the contention regarding laches and belated representation, we are of the considered view that such a plea cannot be taken in the review application. 11. In view of the fact that neither the order of the Tribunal nor the order of the Division Bench contain any reference to the contention regarding laches and belated representation, we are of the considered view that such a plea cannot be taken in the review application. 11. The scope of the review has been discussed by the Apex Court and it shall be appropriate to refer to the observations made in the following Cases: (i) Meera Bhanja vs. Nirmala Kumari Choudhary, (1995) 1 SCC 170 (ii) Lily Thomas and others vs. Union of India and others, (2000) 6 SCC 224 (iii) Northern India Caterers (India) Ltd. vs. Lt. Governor of Delhi, (1980) 2 SCC 167 12. The view expressed by the Supreme Court in Meera Bhanja vs. Nirmala Kumari Choudhary, (1995) 1 SCC 170 is as follows: "8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC. In connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharmal, (1979) 4 SCC 389 , speaking through Chinnappa Reddy, J., has made the following pertinent observations: "It is true as observed by this Court in Shivdeo Singh v. State of Punjab, 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 person 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." 9. Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view 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 two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, 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. " 13. In Lily Thomas and others vs. Union of India and others, (2000) 6 SCC 224 regarding the scope of review, the Supreme Court has held as follows:- "the power of review can be exercised for correction of a mistake but not to substitute a view. 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." 14. In Northern India Caterers (India) Ltd. vs. Lt. 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." 14. In Northern India Caterers (India) Ltd. vs. Lt. Governor of Delhi, (1980) 2 SCC 167 the Supreme Court has held as follows: "It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so." 15. Applying the above said principles to the case on hand, we come to the conclusion that no case for review has been made out and the review applications deserve rejection. Accordingly, both the review applications are rejected.