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2018 DIGILAW 336 (ORI)

Mrutyunjay Barik v. Collector, Balasore

2018-04-02

SUJIT NARAYAN PRASAD

body2018
JUDGMENT : S.N. Prasad, J. The instant review petition has been filed by the opposite party no.4 of the writ petition for review of the order dated 12.1.2016 passed by this Court in W.P.(C) No.24392 of 2011. 2. Review of the said order has been sought on the ground that the petitioner has not been provided with opportunity to address his case at the time of the hearing of the writ petition, as also on the ground that the Collector has passed some observation in favour of the petitioner. The review has also been sought for on the basis of the order passed in the case of Jogendra Behera vs. State of Orissa and others reported in 2014 (2) OLR 810 and in the case of Budhiram Ho vs. State of Orissa and others reported in 2014 (2) OLR 1018 . 3. Before going into the merit of the instant writ petition, it would be relevant for this Court to state some factual aspect as per the pleadings made in the writ petition as has been referred in the order to be reviewed. The review petitioner was the opposite party no.4 in the writ petition against whom the writ petitioner/private opposite party no.4 has filed writ petition assailing his appointment which according to him was engaged by producing forged certificate of Upasashtri and to that effect the Collector has directed for instituting F.I.R. for investigation under sections 417, 420 and 468 of the Indian Penal Code, prior to institution of W.P.(C) No.24392 of 2011 he has filed another writ petition being W.P.(C) No.13789 of 2010 which was disposed of vide order dated 3.12.2012 directing the authority to take decision on the representation if preferred by the petitioner and accordingly the Collector has taken decision vide order dated 9.6.2011, came to finding that the opposite party no.4(review petitioner) has suppressed material facts and fraudulently obtained certificate based upon which he was engaged, accordingly FIR has been instituted but even after coming to the prima facie opinion of commission of fraud by the review petitioner, he has been allowed to continue in service, being aggrieved, this W.P.(C) No.24392 of 2011 has been filed. The review petitioner (opposite party no.4) has appeared in the said writ petition after being noticed and detailed counter affidavit has been filed. The review petitioner (opposite party no.4) has appeared in the said writ petition after being noticed and detailed counter affidavit has been filed. The matter has been heard by this Court on 12.1.2016 and thereafter order has been passed considering the submission of charge-sheet and framing of charge against the opposite party no.4 and as such direction passed by the Collector not to disengage the opposite party no.4 has been held to be illegal and accordingly quashed by this Court, thereafter the instant review petition has been filed. 4. Learned counsel for the review petitioner has submitted that the instant review petition is in terms of the order passed by a coordinate Division Bench of this Court in W.A. No. 48 of 2016 on 29.3.2016. This Court has heard the learned counsel for the petitioner on the review petition as well as the Miscellaneous application. This Court has thought it proper to pass order in Misc. Case No.72 of 2016 filed by the petitioner, to condone the delay in filing the present review petition since according to the review petitioner the review petition has been filed within time since time period for filing review petitioner is from 29.3.2016 i.e. the date of order passed by the Hon’ble Division Bench in W.A.No.48 of 2016. This Court after considering the submissions made in the said application is satisfied with the reason for condonation of delay, accordingly the delay in filing the review petition is condoned. 5. The review petitioner has taken ground that adequate opportunity, at the time of disposal of the writ petition, has not been given to him and if he would have granted opportunity the order would not have been passed in the writ petition since he would have brought to the notice of the Court various judgments as referred hereinabove. 6. This Court after appreciating the submissions of the learned counsel for the petitioner is of the view that the scope of review is very limited, it is not in dispute that the power to review is the creation of a statue. It must be conferred by law either specifically or by necessary implication. Review is not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. It must be conferred by law either specifically or by necessary implication. Review is not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the court finds that the error pointed out in the review petition was under mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration had resulted in miscarriage of justice, then certainly this can be said to be ground for review, but the mere fact that different views on the same subject are possible, cannot be said to be a ground to review the earlier judgment passed by a Court of Law. This Court has considered the judgment of Hon’ble Apex Court regarding width and scope of power of review as has been rendered in the case of Moran Mar Basselios Catholicos and Another Vs. Most Rev. Mar Poulose Athanasius and Others, reported in AIR 1954 SC 526 particularly at paragraph 32 which reads as under. “32. Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order XLVII, Rule I of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order XLVII, Rule I of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified, grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason.” In the case of Shivdev Singh v. State of Punjab, reported in AIR 1963 SC 1909 , in a review petition filed under Order 47, Rule 1 C.P.C., the Supreme Court held that the power of review of its own order by the High Court inheres in every Court of plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it. In doing so, the Court was only upholding the principles of natural justice. This decision indicates that the Court's power of review while exercising jurisdiction under Article 226 of the Constitution extends to correct all errors to prevent miscarriage of justice. The judgment rendered by Hon’ble Apex Court in the case of Sow. Chandra Kanta and Another Vs. Sheik Habib reported in AIR 1975 SC 1500 wherein it has been held that- “A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. Chandra Kanta and Another Vs. Sheik Habib reported in AIR 1975 SC 1500 wherein it has been held that- “A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition through different counsel of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient.” It is the settled proposition as has been held by Hon’ble Apex Court in the judgment discussed herein above the scope of review which can only be done in case of discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, mistake or error apparent on the face of the record and for any other sufficient reason and in the light of this legal position the fact of these review petitions need to be appreciated. 7. This Court is to see as to whether the review petitioner has been able to make out a case for review of the order passed by this Court. It is evident from the order dated 12.1.2016 passed by this Court in W.P.(C) No.24392 of 2011, sought to have been reviewed, that the opposite party no.4/review petitioner has put his appearance through his counsel but none represented him on that date although name of the counsels namely R.C. Jena and M.R. Padhi were on the daily cause list. At the time of call of the matter even no mention has been made on behalf of the opposite party no.4, hence this Court considering the fact that the matter is of the year 2011 and none is present to represent the opposite party no.4, neither any mention has been made for its adjournment on his behalf, hence taken up the matter for final hearing in presence of the learned counsel for the opposite party-State and the petitioner and also taken into consideration the counter affidavit filed by the opposite partyno.4(review petitioner) and thereafter has passed order. 8. 8. The ground which has been taken by the review petitioner is that opportunity of hearing has not been provided, the same cannot be a ground for review in the facts and circumstances of the case since it is not a case of the nature in which notice has not been issued to the opposite party no.4 rather notice has been issued, opposite party no.4 has been represented through two counsels, also filed detailed counter affidavit and if the counsel at the time of the call of the matter will not be present, even no mention for adjournment has been made on that date, the Court suo motu cannot adjourn the matter that too when the learned counsel for other parties were pressing for hearing, rather the Court is to proceed with on the basis of the materials available on record, accordingly the Court has proceeded with hearing of the matter and after hearing the learned counsel for the petitioner as well as the opposite party-State and after going through the counter affidavit filed by the opposite party no.4 (review petitioner) has passed the order which is sought to be reviewed in this writ petition and as such it is not a case where the petitioner has not been provided an opportunity of hearing rather opportunity was provided, counter has been filed but not chosen to appear at the time of call and as such on this ground the order dated 12.1.2016 passed in W.P.(C) No.24392 of 2016 cannot be reviewed by this Court since it is outside the purview of the jurisdiction of review to be exercised by under Article 226 of the Constitution of India as per the legal proposition of law referred to above. 9. Further contention of the petitioner that on the basis of the some judgments which he has annexed in this review petition although it is not fit to be entertained but this Court has thought it proper to deal with the said judgments regarding its applicability. 9. Further contention of the petitioner that on the basis of the some judgments which he has annexed in this review petition although it is not fit to be entertained but this Court has thought it proper to deal with the said judgments regarding its applicability. According to the considered view of this Court the judgment rendered in the case of Jogendra Behera vs. State of Orissa and others (supra) is that the factual aspect revolves around in that case is quashing of the order of removal which has been passed without giving reasonable opportunity of hearing, there is no dispute about the proposition of law that principles of natural justice has to be followed but simultaneously it is also legal proposition that the principles of natural justice not to be followed in straight jacket formula rather principles of natural justice is to be followed where any prejudice is being caused to the incumbent and if the factual aspect is not in dispute and if there is no chance of change in the factual aspect there is no requirement to follow the principle of natural justice, here in the instant case, the fact of pendency of criminal case in which the competent court criminal jurisdiction has taken cognizance is not in dispute and that is the ground of disengagement i.e. the commission of forgery as would be evident from the order of the Collector under Annexure-1 to the writ petition and even if principles of natural justice would be followed remitting the matter before the authority for passing order afresh, there is no likelihood of change in the factual aspect since the fact of institution of criminal case and taking of cognizance in the same cannot be disputed. It is further settled that a judgment cannot be made to be applicable universally, it would be applicable on the basis of the facts and circumstances governing the case. This Court needs to refer the judgment with respect to the observation of the principles of natural justice and its requirement i.e. if there is no likelihood of change in factual aspects, remitting the matter for passing afresh order will be an empty formality and futile exercise. Reference may be made to the judgment In this connection the judgment rendered in case of A.K. Kraipak Vs. Reference may be made to the judgment In this connection the judgment rendered in case of A.K. Kraipak Vs. Union of India, (1969) 2 SCC 262 wherein it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it and their aim is to secure justice or to prevent miscarriage of justice and therefore it has made applicable to the decision to be taken in the administrative proceedings for the purpose of achieving that the enquiry must be held in good faith and without bias and not arbitrarily or unreasonably. In the case of Chairman, Board of Mining Examination Vs. Ramjee (1977) 2 SCC 256 the Hon’ble Apex Court has observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. In the case of Institute of Chartered Accounts of India Vs. L.K. Ratna, (1986) 4 SCC 537 , Charan Lal Sahu Vs. Union of India, (1990) 1 SCC 613 and C.B. Gautam Vs. Union of India (1993) 1 SCC 78 the doctrine that the principle of natural justice must be applied in the unoccupied interstices of the statute unless there is a clear mandate to the contrary is reiterated. Thus it is now settled that the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. It is well settled law that principles of natural justice are integral part of Article. But there may be situation wherein for some reason perhaps because the evidence against the individual is thought to be utterly compelling, it is felt that a fair hearing would make no difference, meaning that a hearing would not change the ultimate conclusion reached by the decision maker, then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch Vs. Aberdeen Corporation, (1971) 1 WLR 1578 wherein it has been stated that a breach of procedure - cannot give a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. Such an approach was endorsed by Lord Wilberforce in Malloch Vs. Aberdeen Corporation, (1971) 1 WLR 1578 wherein it has been stated that a breach of procedure - cannot give a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain. Relying on these comments, Brandon LJ opined in Cinnamond Vs. British Airports Authority, (1980) 1 WLR 582 that no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing. In such situations, fair procedures appear to serve no purpose since right result can be secured without according such treatment to the individual. In the case of Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors, (1993) 4 SCC 727 the relevant paragraph i.e. paragraph 30 is being quoted herein below: “30. Hence the incidental questions raised above may be answered as follows: xxxxxx xxxxxxx xxxx (v) The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all the sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. They are not incantations to be invoked nor rites to be performed on all the sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an ‘unnatural expansion of natural justice’ which in itself is antithetical to justice.” Yet another judgment of Hon’ble Supreme Court in case of Aligarh Muslim University Vs. Mansoor Ali Khan, (2000) 7 SCC 529 needs to be referred here. In that case Hon’ble Apex Court have held that the relevant rule provided automatic termination of service of an employee on unauthorized absence for certain period. M remained absent for more than five years and, hence, the post was deemed to have been vacated by him. M challenged the order being violative of natural justice as no opportunity of hearing was afforded before taking the action. Though the Court held that the rules of natural justice were violated, it refused to set aside the order on the ground that no prejudice was caused to M. Referring to several cases, considering the theory of “useless” or “empty” formality and noting “admitted or undisputed” facts, the Court held that the only conclusion which could be drawn was that had M been given a notice, it “would not have made any difference” and, hence, no prejudice had been caused to M. In the light of the proposition as referred hereinabove even if the notice would have been issued to the petitioner the things could not have changed since the allegation against the petitioner was of submission of forged educational certificate as also the transfer certificate said to have been obtained from the school and the concerned Headmaster of the school has categorically stated that no such certificate has been issued under the signature of Headmaster, hence there would not have been change in the factual position. In view thereof issuance of notice for mere following the Principle of Natural Justice will be said to be an empty formality. Further it is evident from the order of the Collector, who in the first paragraph, has observed that forgery has been committed by the review petitioner but again giving go by to the intent of the forgery and allowed the opposite party no.4 to continue in service, this Court has taken into consideration that aspect of the matter and in consequence thereof has quashed that part of the order whereby and where under the Collector has directed for continuance of the opposite party no.4 in service. In view thereof, the judgment rendered in the case of Jogendra Behera vs. State of Orissa and others (supra) is not applicable to the facts and circumstances of the case. 10. So far as the judgment rendered in the case of Budhiram Ho vs. State of Orissa and others (supra) the same related to entertaining Public Interest Litigation in the service matter and Division Bench of this Court has considered the locus standi of a third party in service jurisprudence and as such in my considered view this judgment is not applicable. 11. This Court, after taking into consideration the grounds raised by the learned counsel for the petitioner to seek review of the said order, is not impressed upon, to exercise jurisdiction conferred to review the order, reason being that no new matter or evidence, which after exercise of due diligence, was not within applicant’s knowledge or could not be produced by him when the order was passed and could not be able to point out any mistake or error apparent on the face of the record or for any other reason, hence it is not a fit case to review the order passed by this Court. 12. In view of the discussions made with respect to the factual aspects as well as the legal position, This Court is not inclined to review the order dated 12.1.2016 passed by this Court in W.P.(C) No.24392 of 2011. Accordingly, the review petition is dismissed.