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Allahabad High Court · body

2019 DIGILAW 1387 (ALL)

Union of India v. Sanjay Charles

2019-05-21

PANKAJ MITHAL, PRAKASH PADIA

body2019
ORDER : 1. Heard Sri Rajnish Kumar Rai, learned counsel for the petitioners and Sri Anand Kumar for the respondent. 2. The petitioners have preferred this writ petition for quashing of the judgment and order dated 14th August, 2018 of the Central Administrative Tribunal, Allahabad Bench, Bench and the order dated 31.1.2019/7/2/2019 allegedly of the Central Administrative Tribunal, Cuttack Bench, Cuttack rejecting the review thereof. 3. The respondent was appointed as a Substitute Bungalow Khalasi in the year 2005. His services were terminated vide order dated 17.4.2017. Therefore, he preferred an Original Application under Section 19 of the Administrative Tribunal Act, 1985 (hereinafter referred to “the Act”). The Allahabad Bench of the Tribunal allowed the aforesaid Original Application vide judgment and order dated 14.8.2018. 4. The petitioners applied for the review of the aforesaid judgment. Since by the time the review came up for consideration one of the Members of the Bench deciding the Original Application was transferred to the Cuttack Bench, the procedure to get the review decided by circulation was adopted. The Member who was transferred to the Cuttack Bench gave his opinion on 31.1.2019 that the review is barred by time; there is no ground for condoning the delay and, therefore, the review is not maintainable and is also devoid of merits. The other Member at the Allahabad Bench of the Tribunal agreed with the said opinion and signed the order dated 7.2.2019. Accordingly, the review application was rejected. 5. In the aforesaid situation, Sri Rai, learned counsel for the petitioners has argued that in the first instance, the order rejecting the review application is without jurisdiction. The matter related to the review of the judgment and order of the Allahabad Bench of the Tribunal whereas it has been decided by the Cuttack Bench of the Tribunal. He asserts that the order rejecting the review application has been passed by one Member of the Cuttack Bench and the other of the Allahabad Bench of the Tribunal which is not legally permissible. 6. Sri Anand Kumar contends that as the review has to be heard by the same Members who passed the initial judgment and order, no impropriety or illegality has been committed by getting the review decided by circulation by the same Members though one of them was posted at the Cuttack and the other continued to be posted at the Allahabad Bench of the Tribunal. 7. 7. In view of respective contentions of the parties, a short question of law that has sprung up for consideration is as to whether a review application filed before the Allahabad Bench of the Tribunal can be decided by circulation by one Member sitting at Cuttack Bench and the other at Allahabad Bench of the Tribunal. 8. The Central Administrative Tribunal has been established in exercise of the powers under Section 4 of the Act with a Chairman and the Judicial Members as well as Administrative Members. The said Tribunal has its Benches at New Delhi (which is known as the Principal Bench) Allhabad, Calcutta, Madras, New Bombay and at such other places as may be notified by the Central Government for dealing matters relating to their local areas. It is important to note that the Central Government has not established any Administrative Tribunal for any State in particular independent of the Central Administrative Tribunal. The Benches of the Central Administrative Tribunal working in different states are in effect part and parcel of the Central Administrative Tribunal. 9. Section 22 of the Act provides that the Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure but shall always be guided by the principles of natural justice and have the power to regulate its own procedure. Sub-Section (3) of Section 22 of the Act provides that the Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure in respect of some of the matters, inter alia, for reviewing its decision. In this way, the Tribunal has the same powers as are vested in the Civil Court in the matter of considering and deciding the review applications. 10. The Code of Civil Procedure provides for review vide Section 114 and the procedure thereof has been specified under Order XLVII to it. For our purpose Rule 5 of Order XLVII of the Code of Civil Procedure is relevant which reads as under: “5. Application for review in Court consisting of two or more Judges. 10. The Code of Civil Procedure provides for review vide Section 114 and the procedure thereof has been specified under Order XLVII to it. For our purpose Rule 5 of Order XLVII of the Code of Civil Procedure is relevant which reads as under: “5. Application for review in Court consisting of two or more Judges. -Where the Judge or Judges, or any one of the Judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same.” 11. The aforesaid Rule envisages that where a judgment and order sought to be reviewed is passed by two or more Judges, a review of it would lie before said Judges or any of them, if they continue to remain attached to the Court and are not precluded by absence or other cause to hear and no other Judge or Judges of the Court shall hear the same. In other words, the Judge or Judges who passed the judgment and order sought to be reviewed, if available, would hear and decide the review application either together or, if one of them is not available the other one. 12. Rule 17 of the Central Administrative Tribunal (Procedure) Rules, 1987 (hereinafter referred to as “the Rules”), inter alia, provides that a review application shall ordinarily be heard by the same Bench which has passed the order, unless the Chairman directs it to be heard by a different Bench for reasons to be recorded, and that a review application shall be disposed of by circulation. The relevant provision of Rule 17 of the Rules are reproduced herein-below. “17. Application for review. -(1)..... (2) A review application shall ordinarily be heard by the same Bench which has passed the order, unless the Chairman may, for reasons to be recorded in writing, direct it to be heard by any other Bench. The relevant provision of Rule 17 of the Rules are reproduced herein-below. “17. Application for review. -(1)..... (2) A review application shall ordinarily be heard by the same Bench which has passed the order, unless the Chairman may, for reasons to be recorded in writing, direct it to be heard by any other Bench. (3) Unless otherwise ordered by the Bench concerned, a review application shall be disposed of by circulation and the Bench may either dismiss the application or direct notice to the opposite party.” 13. The aforesaid provision amply clarifies that as of practice a review is to be heard by the same Bench which has passed the order sought to be reviewed and that it can be decided by circulation. 14. This apart, Rule 49 provides that posting of the review application shall be governed by the order made by the Chairman as contained in Appendix IV subject to such modification as may be made by the Chairman from time to time. 15. In exercise of the above powers, rather the powers conferred upon the Chairman by Section 5, 12 and 22 of the Act read with Rule 17 of the Rules, the Chairman issued a notification dated 18.2.1992, as amended and substituted vide notification dated 18.5.2005, for the manner of posting of review applications to review the orders passed by a Bench of two Members. The said notification, inter alia, provides that where an order sought to be reviewed is passed by the Bench of which one Member sits at the local Bench and the other is a Member of another Bench, the review application shall be sent for consideration by circulation to those Members, and if one of them is of the view that it deserves to be heard on merits, then the review application shall be placed for preliminary hearing for which purpose the Vice-Chairman of the local Bench would constitute a Bench from amongst the Members available in the said Bench. The relevant portion of the aforesaid notification is quoted below: “2. Review of orders passed by the Bench of which one Member belongs to the local Bench and the other is a Member of another Bench. In such a case, the Review Petition shall be sent for consideration by circulation to the members, who passed the order. The relevant portion of the aforesaid notification is quoted below: “2. Review of orders passed by the Bench of which one Member belongs to the local Bench and the other is a Member of another Bench. In such a case, the Review Petition shall be sent for consideration by circulation to the members, who passed the order. If one of them is of the view that it merits a hearig, then the petition shall be placed for preliminary hearing. For that purpose, the Vice-Chairman of the Local Bench would be competent to constitute the Bench from amongst the Members available in that Bench.” 16. From a plain reading of the provisions of Section 22 of the Act along with Rules 17 and 49 of the Rules as well as the aforesaid notification it is implicit that a review application has to be ordinarily placed before the Bench that has passed the judgment and order sought to be reviewed and it is only in the event where the members of the Bench are no longer available in the same Bench that the application for review has to be sent for consideration by circulation, and if one of them decides to hear the matter on merits then it shall be placed before a newly constituted Bench by the Vice-Chairman from amongst the Members available in the local Bench. 17. It is well accepted legal proposition that the review is a simply re-examination of a decision with the view to correct or make improvement in it and it has to be heard by the same Court and by the same Judges. 18. The basic philosophy behind the doctrine of review is that an error occurring in a decision due to human fallibility ought not be ignored and it is an obligation upon the court/tribunal to rectify such mistakes or errors so as not to perpetuate the same and to avoid miscarriage of justice. 19. In Maharajah Moheshur Sing Vs. The Bengal Government, 7 M.I.A. 283 the Privy Council had the occasion to comment on the jurisdiction of review and it said that the primarily a review is reconsideration of the subject by the same Judge, in contradistinction from an appeal, which is a hearing before another Judge. A review before another Judge is an exception and is only allowed, ex necessitate, as in the case of death or removal. 20. A review before another Judge is an exception and is only allowed, ex necessitate, as in the case of death or removal. 20. The above decision in very clear and unequivocal terms lays down that a review has to lie before a Judge whose judgment and order is sought to be reviewed and laying it before another Judge is an exception to the rule. 21. The aforesaid decision has been followed by our Supreme Court in State of Orissa Vs. Commissioner of Land Records & Settlement, Cuttack, AIR 1998 SC 3067 and it has been observed as under: “It is, therefore, clear that the same Judge who disposes of a matter, if available, must “review” the earlier order passed by him inasmuch as he is best suited to remove any mistake or error apparent on the face of his own order. Again he alone will be able to remember what was earlier argued before him or what was not argued. In our opinion, the above principle is equally applicable in respect of orders of review passed by quasi-judicial authorities.” 22. In Malthesh Gudda Puja Vs. State of Karnataka and others (2011) 15 SCC 330 while considering the provisions of Order XLVII Rule 5 of the Code of Civil Procedure, the Apex Court held that law provides that review petition should ordinarily be heard and decided by the Bench of the High Court which pronounced the judgment sought to be reviewed, if Judges constituting the Bench continue to be Judge of the Court and if they are not precluded by death, retirement or absence for six months or more. It was also observed that even if there are Circuit Benches or Benches outside the main seat of the High Court and the roster requires Judges to move from one Bench to another and come back after some time, effort should always be made that the review application is placed for hearing before the same Judges, and if one of them is not available at least by a Bench consisting of the other Judge, in order to maintain good tradition. 23. 23. In view of legal discussion aforesaid, in the absence of any challenge to the Rules or to the notification referred to above, our opinion is that as both the Members of the Tribunal continues to be its Members, though one in the local Bench at Allahabad and the other in the Cuttack Bench of the Tribunal, in all legal propriety the review petition was rightly placed before the aforesaid two Members for consideration by circulation and there is no illegality in one of them opining to dismiss it and the other concurring with the said opinion. However, the description of the Cuttack Bench of the Tribunal in the order rejecting the review application is improper and it ought to have been Allahabad Bench of the Tribunal with the specific endorsement below the name of the two Members about the place of their respective posting. 24. In view of the aforesaid facts and circumstances, the first argument of a preliminary nature as raised is answered against the petitioners and the order rejecting the review application is not found to be without jurisdiction. 25. Let the petition be listed before the Bench for consideration of the matter on merits and other points, specially with regard to the correctness of the judgment and order of the Tribunal by which the original application was allowed.