No. 671430328 Ex. Constable Anand Bahadur Pal v. Union of India
2019-03-01
RAMESH RANGANATHAN, SHARAD KUMAR SHARMA
body2019
DigiLaw.ai
ORDER : RAMESH RANGANATHAN, J. 1. Review Application No. 1552 of 2018 is filed seeking review of the order passed by the Division Bench of this Court in Special Appeal No. 120 of 2017 dated 29.10.2018. Special Appeal No. 120 of 2017 was preferred against the order passed by the learned Single Judge in WPSS No. 377 of 2007 dated 23.11.2011. 2. Facts, which are not in dispute, are that the appellant was enrolled in the Armed Forces on 25.12.1967. He was declared invalid in the year 1971. His request, for grant of disability pension, was rejected on 31.01.1973. Thirty two years thereafter, the petitioner submitted an application to the competent authority on 07.01.2005, which came to be rejected by the order impugned in the writ petition dated 30.03.2005. 3. In his order in WPSS No. 377 of 2007 dated 23.11.2011, the learned Single Judge opined that the writ petition, filed before the Court, was highly belated and was, therefore, liable to be dismissed on the ground of laches alone; merely because an order had been passed on 30.03.2005, it did not cure the defect of inordinate delay in filing the writ petition; moreover, the concerned authority had stated that, one of the grounds for rejecting the application of the petitioner, was that the claim was belated; and, therefore, the writ petition was liable to be dismissed. 4. In the order under review dated 21.11.2018, the Division Bench opined that the learned Single Judge had rightly come to the conclusion that the writ petition was barred by delay and laches; there was no merit in the special appeal; and it was liable to be dismissed. 5. Shri M.S. Pal, learned Senior Counsel appearing on behalf of the review petition, would submit that both the learned Single Judge, and the Division Bench in the order under review, had adopted a hyper-technical approach; the petitioner’s claim for disability pension should have been examined on its merits; the petitioner’s claim for disability pension is squarely covered by the judgment of the Supreme Court in Sukhvinder Singh Vs. Union of India and others : (2014) 14 SCC 364 ; and failure on the part of the Division Bench to examine the petitioner’s claim on merits, necessitates the order under review to be set aside; and for the Special Appeal to be heard on its merits. 6. We must express our inability to agree.
Union of India and others : (2014) 14 SCC 364 ; and failure on the part of the Division Bench to examine the petitioner’s claim on merits, necessitates the order under review to be set aside; and for the Special Appeal to be heard on its merits. 6. We must express our inability to agree. The facts, not in dispute, are that the petitioner was discharged from duty on the ground of invalidation in 1971, and he was adjudged as disentiled for disability pension in 1973. It was more than three decades thereafter, that the petitioner filed an application to the Additional Director General (ESTT) on 07.01.2005, and his claim for disability pension was rejected by the competent authority vide proceedings dated 30.03.2005. In para 6 of the said order, the Additional Director DIG (ESTT) stated that the petitioner was invalidated from service because of injuries sustained by him in the normal course of duty; his case was not under the Rules; the case required a court of inquiry only if the injuries sustained by the government servants is attributed to government service, which was not available in this case; and hence, at this belated stage, it was not possible to cover disability pension under the Rules. 7. Among the grounds on which the petitioner’s claim, for grant of disability pension, was rejected by the Additional Director DIG (ESTT), was that the application was belated. This conclusion of the Additional Director DIG (ESTT); was accepted by the learned Single Judge holding that an unduly belated claim could not be entertained. The Division Bench has come to the same view, and has affirmed the order passed by the learned Single Judge. 8. The jurisdiction which this Court exercises, under Article 226 of the Constitution of India, is discretionary. Inordinate delay and laches would, by itself, justify the Court refusing to exercise its discretion to entertain the writ petition. In State of M.P. and others Vs. Nandlal Jaiswal and others : (1986) 4 SCC 566 , the Supreme Court observed:- “….. Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent of the acquiescent and the lethargic.
Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent of the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs with the High Court in deciding whether or not to exercise such jurisdiction….” (emphasis supplied) 9. In review proceedings the contentions, urged on merits, are, ordinarily, not examined as these are all matters within the purview of an appellate Courts. 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 the appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court.
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 the appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court. [Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and others : AIR 1979 SC 1047 ; Shivdeo Singh and others vs. State of Punjab and other : AIR 1963 SC 1909 ; Smt. Meera Bhanja vs. Smt. Nirmala Kumari Choudhury : AIR 1995 SC 455 ]. Review proceedings are not by way of an appeal, and should be strictly confined to the scope and ambit of Order 47 Rule 1 C.P.C. (Smt. Meera Bhanja vs. Smt. Nirmala Kumari Choudhury : AIR 1995 SC 455 ). A party is not entitled to seek review of a judgment merely for the purpose of a rehearing and a fresh decision of the case. [Sajjan Singh vs. State of Rajasthan : AIR 1965 SC 845 ; M/s Northern India Caterers (India) Ltd. vs. Lt. Governor of Delhi : (1980) 2 SCC 167 ]. A review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except “where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.” [Sow Chandra Kante & another vs. Sheikh Habib : (1975) 1 SCC 674 ; M/s Northern India Caterers (India) Ltd. vs. Lt. Governor of Delhi : (1980) 2 SCC 167 ]. 10. In review proceedings, this Court would interfere only if the order under review suffers from an error apparent on the face of the record. We are satisfied that the said order does not suffer from any such infirmity. It is only if the Division Bench, while hearing the Special Appeal, was of the view that the matter should be examined on merits, would the petitioner’s contentions on merits have necessitated examination. In cases where the Court refuses to exercise discretion to entertain a Writ Petition, on the ground of inordinate delay and laches, it is wholly unnecessary for the Court to examine the contentions urged on merits.
In cases where the Court refuses to exercise discretion to entertain a Writ Petition, on the ground of inordinate delay and laches, it is wholly unnecessary for the Court to examine the contentions urged on merits. We are satisfied, therefore, that the order of the Division Bench does not suffer from any infirmity, much less an error apparent on the face of the record, merely because it did not examine the petitioner’s claim on merits while dismissing Special Appeal on the ground of inordinate delay and laches. 11. The Review Application fails and is, accordingly, dismissed.