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2016 DIGILAW 1870 (ALL)

Islam Ahmad v. District Judge

2016-05-13

MANOJ MISRA, VIKRAM NATH

body2016
JUDGMENT Heard Sri Yogesh Agarwal for the petitioner-appellant-applicant (hereinafter referred to as the petitioner) and Sri Samir Sharma for the respondents. 2. The facts giving rise to this review application are being narrated herein below. 3. The petitioner was posted as Suits Clerk in the Judgeship of District Bulandshahar. An Original Suit No. 345 of 1976 was decided on 21.11.1991 and the record was consigned to the record room. Some defects were found in the record as a result the record was sent back to the court concerned for removal of defects. It appears that at some stage during the movement/ consignment of the record, the petitioner received the record, which fact was evidenced by his signature on the dispatch register. However, when one of the parties to the suit moved an application for return of certain documents, the record was found missing from the record room therefore, after calling an explanation from the petitioner, a departmental enquiry was initiated against the petitioner for negligence in maintenance of record which resulted in loss of record of Original Suit No. 345 of 1976. The Enquiry Officer in his report dated 18.07.2002 found the charge proved upon which a show cause notice dated 10.10.2002 was issued to the petitioner and thereafter, by order dated 23.11.2002, punishment of dismissal from service was imposed upon the petitioner. Challenging the order of punishment Writ A No. 54091 of 2002 was filed. Initially, the writ petition was entertained and an interim order was passed on 19.12.2002 under which the petitioner continued to render service and was paid salary till he attained the age of superannuation. However, the writ petition came to be dismissed on 09.10.2012 though it was observed that the respondents would not seek refund of salary for the period the petitioner worked under the interim order of this Court. 4. Against the order of the Writ Court, a Special Appeal No. 1924 of 2012 was filed which was dismissed by order dated 03.04.2013 by a Division Bench of which one of us (Hon'ble Manoj Misra, J.) was a member. 5. It appears that against the order passed in Special Appeal No. 1924 of 2012, a Special Leave to Appeal (Civil) No. 22615 of 2013 was filed which was dismissed in limine by order dated 29.07.2013. 6. 5. It appears that against the order passed in Special Appeal No. 1924 of 2012, a Special Leave to Appeal (Civil) No. 22615 of 2013 was filed which was dismissed in limine by order dated 29.07.2013. 6. After dismissal of the Special Appeal and Special Leave to Appeal, on 12.09.2013, the petitioner submitted an application before the District Judge, Bulandshahar stating therein that the record of Original Suit No. 345 of 1976, for the loss of which he had been dismissed from service, has been traced out and he had received copy of the record on 26.07.2013. Accordingly, it was prayed that the dismissal order dated 23.11.2002 be recalled. On the said application a reference was made to the Advisory Committee. The Advisory Committee called for a report from the record-keeper, who, vide report dated 01.10.2013, informed that as per report of the First Assistant Record-Keeper, the record of O.S. No. 345 of 1976 is available in the record room. Upon receipt of said report, the Advisory Committee submitted a report dated 20.12.2013 stating that the record was not available either during the enquiry or during the proceeding before the High Court as well as the Apex Court and it appears that the record has become available only thereafter and, therefore, before taking any decision in the matter, an enquiry is needed to ascertain as to who was responsible for not keeping the record at its proper place. However, the report of the Advisory Committee was rejected by the District Judge vide order dated 17.04.2014 by observing that since dismissal order has been affirmed by the High Court as well as the Apex Court there is no need of any enquiry and the matter was closed. This order dated 17.04.2014 has been assailed in Writ A No.36432 of 2015, which has been directed to be heard by the same Bench, which was hearing the review application. 7. The review application has been filed by the petitioner taking a plea that by discovery of the record of the suit concerned, the substratum of the charge, on which the petitioner had been dismissed, has disappeared, therefore, the order of dismissal from service no longer can be sustained. 8. 7. The review application has been filed by the petitioner taking a plea that by discovery of the record of the suit concerned, the substratum of the charge, on which the petitioner had been dismissed, has disappeared, therefore, the order of dismissal from service no longer can be sustained. 8. Sri Yogesh Agarwal, learned counsel for the petitioner, has submitted that it is always open to the Court to review its order on discovery of fresh and new evidence which, despite due diligence, could not have been placed by the petitioner before the Court at the time when the order under review was passed. He submitted that since the charge against the petitioner was that on account of his negligence there was loss of the record, therefore, once the record has been found, the basis of the charge stood demolished and as such the decision of dismissal from service was liable to be set aside and the petitioner entitled to all consequential benefits. 9. Sri Yogesh Agarwal further submitted that since the Special Leave to Appeal before the Apex Court, against the judgment and order passed by the Special Appeal Court, was not entertained and was dismissed in limine, therefore, there would be no merger and as such it would be open for this Court to review its earlier order and set aside the order of punishment. 10. Sri Samir Sharma, learned counsel appearing for the respondents, submitted that mere recovery of the record would not be sufficient to demolish the charge against the applicant because crux of the charge against the applicant was that of negligence in keeping of the record and since admittedly the record was not found at the relevant time, therefore, it would be assumed that the record was not properly kept and as such the charge of negligence in keeping and maintaining the record stands proved notwithstanding subsequent recovery of the record. He thus submitted that there is no such new fact or evidence which may necessitate reopening of the case. 11. We have given thoughtful consideration to the submissions of the learned counsel for the parties and have perused the record. 12. Before proceeding to examine the merit of the rival submissions, it would be useful to first examine the law with regard to the scope of review. 11. We have given thoughtful consideration to the submissions of the learned counsel for the parties and have perused the record. 12. Before proceeding to examine the merit of the rival submissions, it would be useful to first examine the law with regard to the scope of review. In the case of Kamlesh Verma v. Mayawati and others: (2013) 8 SCC 320 , the Apex Court after considering a number of decisions, summarized the principles governing review proceedings, in paragraphs 20, 20.1 and 20.2 of the report, as follows: - 13. Summary of the principles: - 20. Thus, in view of the 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 the 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 & Ors., (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. (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 error which has to be fished out and searched. (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 error 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." 14. In view of the law noticed herein above, it is clear that a review is maintainable on discovery of new and important matter or evidence which the petitioner, despite exercise of due diligence, could not have brought on record earlier while the proceeding was pending. 15. In the instant case, the review has been sought on the ground that the petitioner since the time of initiation of departmental enquiry against him had been searching for the missing record and only after dismissal of the writ petition as well as Special Appeal, he found that the record was available in the record room. There is nothing on record, at this stage, to infer that had the applicant been more diligent, he could have traced out the record before consideration of his writ petition or Special Appeal. Under the circumstances, while keeping in mind that the charge against the applicant was negligence in maintenance of the record, which resulted in its loss, the discovery of the record is an important piece of evidence which could have material bearing in the result of the enquiry initiated against him, particularly, in view of the report of the Advisory Committee that before taking any decision it would be necessary to ascertain as to who was responsible for misplacement of the record. Therefore we are of the view that the applicant had made out a case for review because if, in the enquiry, it is found that the record was misplaced not on account of the negligence or fault of the petitioner but for some other reasons, the foundation of the punishment order goes. Therefore we are of the view that the applicant had made out a case for review because if, in the enquiry, it is found that the record was misplaced not on account of the negligence or fault of the petitioner but for some other reasons, the foundation of the punishment order goes. Thus, the recovery of the record, the loss of which was the basis of the enquiry, is a material aspect which goes to the root of the matter and necessitates an enquiry so as to fix the responsibility of the person who was responsible for misplacement of the record. 16. At this stage, it would be apposite to observe that the dismissal of the Special Leave to Appeal preferred by the petitioner before the Apex Court against the order of this Court in Special Appeal would not come in our way in exercising the power of review because the Special Leave to Appeal was dismissed in limine without entering into the merits of the case and, therefore, by virtue of the law laid down by the Apex Court in the case of Kunhayammed and others v. State of Kerala and another : (2000) 6 SCC 359 , such dismissal of the Special Leave to Appeal would not culminate in merger of the impugned decision with the order of the Apex Court and, therefore, it would not bar a review application before this Court. The aforesaid view of the Apex Court has consistently been followed by the Apex Court {vide Chandi Prasad and others v. Jagdish Prasad and others : (2004) 8 SCC 724 and Y. Satyanarayan Reddy v. Mandal Revenue Officer, Andhra Pradesh : (2009) 9 SCC 447 }. 17. The question that now arises for our consideration is as to what relief the petitioner is entitled to. It has already come on the record that during the pendency of the Writ Petition, the petitioner had attained the age of superannuation and it has also come on the record that there was an interim order operating in the writ petition under which the petitioner had served and had drawn salary till he attained the age of superannuation. The writ court, while dismissing the writ petition, had observed that the salary already paid to the petitioner of the period for which he had worked under the interim order would not be recovered from the petitioner. The writ court, while dismissing the writ petition, had observed that the salary already paid to the petitioner of the period for which he had worked under the interim order would not be recovered from the petitioner. In view of the above, the decision which the Disciplinary Authority may take, once the order of dismissal is set aside, would be with regard to the admissibility of pensionary / post-retiral benefits available to the petitioner apart from other consequential benefits. 18. At this stage, it would be useful to refer to Regulation 351 A of the Civil Service Regulations, which provides as follows: - "351A. The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement: Provided that- (a) Such departmental proceedings, if not instituted while the officer was on duty either before retirement or during reemployment - i) shall not be instituted save with the sanction of the Governor. ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made. (b) Judicial proceedings, if not instituted while the officer was on duty either before retirement or during re- employment, shall have been instituted in accordance with Sub-clause (ii) of Clause (a); and (c) The Public Service Commission, UP shall be consulted before final orders are passed. (b) Judicial proceedings, if not instituted while the officer was on duty either before retirement or during re- employment, shall have been instituted in accordance with Sub-clause (ii) of Clause (a); and (c) The Public Service Commission, UP shall be consulted before final orders are passed. (Provided further that if the order passed by the Governor relates to a case dealt with under the Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947, it shall not be necessary to consult Public Service Commission.) Explanation - For the purpose of this article - (a) departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or, if the officer has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to have been instituted: (i) in the case of criminal proceedings, on the date on which complaint is made, or a charge-sheet is submitted, to a criminal court; and (ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made to a Civil Court." 19. Interpreting the provisions of Regulation 351 A of Civil Service Regulations, the Apex Court in the case of State of U.P. and others v. R. C. Misra : 2007 (113) FLR 468 held that the enquiry which had been instituted prior to the retirement of the employee and was completed after his retirement would not be held illegal on the ground of want of sanction of the Governor. As, admittedly, in this case, the enquiry was instituted before the retirement of the petitioner, the continuance of the said enquiry under the direction of this Court, post retirement of the petitioner, would not require the sanction of the Governor. 20. As, admittedly, in this case, the enquiry was instituted before the retirement of the petitioner, the continuance of the said enquiry under the direction of this Court, post retirement of the petitioner, would not require the sanction of the Governor. 20. Taking a conspectus of the facts and circumstances of the case as also the legal position, we are of the view that the interest of justice would best be served if the order of dismissal dated 23.11.2002 is set aside and the enquiry instituted against the applicant is restored to the stage of leading of evidence so that the petitioner as well as the department is in a position to lead evidence to substantiate as to who was responsible for the misplacement /temporary loss of the record and, thereafter, on the basis of finding returned in that enquiry, a fresh decision is taken with regard to admissibility of post retiral/ pensionary /other consequential benefits to the petitioner. But in no event an order should be passed seeking recovery of the salary already received by the petitioner for the period he had rendered service till attaining the age of superannuation under the interim order of the writ court. For the purpose of holding the enquiry, the petitioner shall be deemed to be in service till the date of attaining the age of superannuation. 21. In view of the above, the review application is allowed. The order dated 03.04.2013 dismissing the Special Appeal No. 1924 of 2012 is set aside. The Special Appeal No. 1924 of 2012 is allowed. The judgment and order dated 09.10.2012 dismissing the Writ Petition No. 54091 of 2002 is set aside and the said writ petition is allowed to the extent indicated herein below. The dismissal order dated 23.11.2002 passed by the District Judge, Bulandshahr is quashed with a direction to hold an enquiry from the stage and for the purpose indicated herein above. 22. It is made clear that till a final decision is taken in the enquiry, as directed herein above, the petitioner will not be entitled to any pensionary or retirement benefits which otherwise would not have been admissible to him had the earlier order of dismissal been affirmed. 22. It is made clear that till a final decision is taken in the enquiry, as directed herein above, the petitioner will not be entitled to any pensionary or retirement benefits which otherwise would not have been admissible to him had the earlier order of dismissal been affirmed. However, after completion of the enquiry, as directed herein above, the consequential benefits, if found admissible and payable to the petitioner under the final decision to be taken by the disciplinary authority, shall be made available to him, in accordance with law, with 6% simple interest per annum. It is further provided that the exercise of completing the enquiry including taking of final decision as also payment of consequential benefits, if any found admissible, would be completed expeditiously, preferably, within a period of four months from the date a certified copy of this order is produced before the District Judge, Bulandshahar, subject to co-operation of the petitioner in the enquiry.