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2019 DIGILAW 817 (ALL)

Chairman/M. D. Bharat Sanchar Nigam Ltd. v. Brij Bhushan Singh

2019-04-02

ANIL KUMAR, VIKAS KUNVAR SRIVASTAV

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JUDGMENT : 1. Heard Sri Asit Kumar Chaturvedi, Senior Advocate and Sri Rajeev Kumar Sinha on behalf of the review petitioners. 2. Present review application has been moved on behalf of review applicant for review of the judgment and order dated 03.11.2017 passed in Service Bench No.6915 of 2017. Initially, the present review application has been pressed by Sri Rajeev Kumar Sinha, learned counsel for the review petitioner who has initially argued the matter in writ petition on the ground that before the Central Administrative Tribunal (hereinafter be referred as "C.A.T.") an application for condonation of delay has been moved. Without adjudicating and deciding the same, tribunal has passed the judgment adn order dated 12.01.2017 in Original Application No.435 of 2014 (Brij Bhushan Singh Vs. Chairman-cum-Managing Director & Ors.) thereby allowing the writ petition. 3. Learned counsel for the review petitioner submits that the said fact has been taken before this Court, however, in spite of the said fact, the writ petition no.6915 of 2017 is dismissed, so keeping in view of the said fact, review petition may be allowed. 4. We have heard Sri Rajeev Kumar Sinha, learned counsel for the review petitioner and gone through the record. 5. From the perusal of the record, the position which emerges to the fact that in paragraph-11 of the judgment passed by tribunal dated 12.01.2017 in Original Application No.435/2014 has held as under:- "11. It is no-doubt true that the applicant was not regularized in 2008 after his acquittal in criminal case by AGM, RO, U.P. East on account of judgment delivered by Hon'ble Supreme Court in Uma Devi's case and the case of the applicant was referred to for further direction of BSNL Headquarters. The BSNL Headquarters has not considered the matter of the applicant nor the department has communicated the decision of Headquarters, nor regularize the services of the applicant. It is not, in dispute, that the applicant is still continuing in service after attaining the temporary status. It is also a fact that this Tribunal on earlier occasions during the pendency of application of condonation of delay invited Counter Reply of the O.A. and Rejoinder against the same and the parties had filed both, reply and rejoinder. It is not, in dispute, that the applicant is still continuing in service after attaining the temporary status. It is also a fact that this Tribunal on earlier occasions during the pendency of application of condonation of delay invited Counter Reply of the O.A. and Rejoinder against the same and the parties had filed both, reply and rejoinder. It is a fact that the applicant is still working as T.S.M. His case for regularization has not been considered in 2000 along with regularization has not been considered in 2000 along with other similarly situated persons on account of pendency of a criminal case. It is also not in dispute that the applicant is acquitted in that criminal case in 2007 and he again made a request for regularization, but his regularization request has not been finally adjudicated upon except that opinion of AGM,RO, U.P. East that after pronouncement of judgment of Hon'ble Supreme Court, regularization is not possible. However, final verdict of Headquarters is still awaited. Hence, in view of the above, I am of the view that in the aforesaid circumstances, the question of delay has become insignificant and the matter must have been decided on merits. Hence, I proceed to decide the matter on merits" 6. Taking into consideration, the said facts, this Court has passed an order dated 03.11.2017 and dismissed the writ petition 6915 of 2017. In view of the above said fact as well as the position of law that the review lies as under:- "Hon'ble the Apex Court in the case of M/s. Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur, (1964) AIR SC 1372, the Apex Court held that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out. Hon'ble the Apex Court in Subhash Vs. Hon'ble the Apex Court in Subhash Vs. State of Maharastra & Another, (2002) AIR SC 2537, the Apex Court emphasised that Court should not be misguided and should not lightly entertain the review application unless there are circumstances falling within the prescribed limits for that as the Courts and Tribunal should not proceed to re-examine the matter as if it was an original application before it for the reason that it cannot be a scope of review." 7. We do not find any force in the arguments raised by Sri Rajeev Kumar Sinha, learned counsel for the review of judgment and order dated 03.11.2017. Needless to mention herein that Sri Asit Kumar Chaturvedi learned Senior Advocate had also argued that the review application/petition on the points which has been mentioned in Paragraph 15 which quoted here in under:- "Thus, in view of the above said facts, review can be allowed only on (1) discovery of new and important matter of evidence which, after exercise of due diligence, was not within the knowledge of the person seeking review, or could not be produced by him at the time when the order was made, or (2) when some mistake or error on the face of record is found, or (3) on any analogous ground. But review is not permissible on the ground that the decision was erroneous on merits as the same would be the province of an Appellate Court." 8. After adjudicating and deciding the points and issues we feel appropriate to see the judgment of Hon'ble Apex Court in the case of. Oriental Insurance Company Limited Vs. Ram Nath, (2005) 10 SCC 596 as under:- "In the facts and circumstances of the case, we are not inclined to go into the merit of this appeal so far as the quantum of compensation is concerned. So far as the payment of sum of Rs. 50,000/- to the claimant is concerned, it appears that the said sum was awarded by the State Commissioner. Though the same was challenged in the ground of appeal filed before the National Forum but during the course of arguments, the point was not pressed. This being the position, we do not permit the appellant to raise this question before this Court." 9. Hon'ble the Apex Court in the case of S.N.S. ( Minerals ) Ltd. and another Vs. Though the same was challenged in the ground of appeal filed before the National Forum but during the course of arguments, the point was not pressed. This being the position, we do not permit the appellant to raise this question before this Court." 9. Hon'ble the Apex Court in the case of S.N.S. ( Minerals ) Ltd. and another Vs. Union of India and another, (2007) 12 SCC 132 has held as under:- "But the question is whether such a plea was in fact urged. From a reading of the order of the High Court and the Counter affidavit filed before this Court in which it has been specifically urged at paras 9 and 10 that no such argument was advanced, we do not consider this to be a fit case where any interference is called for, considering the limited scope of review.(See: Ganesh Sugar Milla Vs. State of U.P. and others, (1986) 1 SCC 623 , Life Insurance Corporation of India and others Vs. Jyothish Chandra Biswas, (2000) 6 SCC 562 and Rajashthan Agriculture University Vs. Ram Krishna Vyas, (1999) 4 SCC 720 )" 10. In the case of Transmission Corporation of A.P Ltd. And others Vs. P. Surya Bhagavan, (2003) 6 SCC 353 , the Hon'ble Apex Court has held as under:- "Question as to whether the respondent was overaged for entry into the service was neither raised in the written statement nor was it argued before the High Court. Under the circumstances the appellant cannot be permitted to raise this point for the first time in this Court. The second point regarding the delay in filing the petition though was raised in the written statement, but, it seems the same was not pressed before the Bench at the time of argument. It has not been stated in th ground of appeal that this point was raised and argued before the Bench during the course of arguments and the Bench had failed to notice the same. In view of this we decline to go into this question as well." 11. It has not been stated in th ground of appeal that this point was raised and argued before the Bench during the course of arguments and the Bench had failed to notice the same. In view of this we decline to go into this question as well." 11. In Shivdeo Singh v. State of Punjab, (1963) AIR SC 1909, in a review petition filed under Order 47 Rule 1 C.P.C the Supreme Court held that the power of review under Article 226 of the Constitution of India, in reviewing its own orders, every Court including High Court inheres plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it. 12. Accordingly, learned counsel for the review petitioner submits that the review petition be allowed and writ petition be restored. At the very outset the question which has been noted to Sri Asit Kumar Chaturvedi, Senior Advocate whether the said point was argued and taken by the review applicant while pressing the writ petition or not. 13. Sri Asit Kumar Chaturvedi very fairly submitted that the same has not been neither taken nor pressed when the matter was argued in writ petition. 14. Keeping in view of the said fact as well as the law laid down by the Hon'ble Apex Court in Oriental Insurance Company Limited Vs. Ram Nath, (2005) 10 SCC 596 as under:- "In the facts and circumstances of the case, we are not inclined to to into the merit of this appeal so far as the quantum of compensation is concerned. So far as the payment of sum of Rs. 50,000/- to the claimant is concerned, it appears that the said sum was awarded by the State Commissioner. Though the same was challenged in the ground of appeal filed before the National Forum but during the course of arguments, the point was not pressed. This being the position, we do not permit the appellant to raise this question before this Court." 15. As well as the fact stated herein-above in spite of entertaining a review petition and law laid down by the Hon'ble Apex Court in the Case of Zahira Habibullah Sheikh Vs. State of Gujarat, (2004) 5 SCC 353 , after placing reliance on its earlier judgments i.e. P.N. Eswara Iyer etc. Vs. Registrar Supreme Court of India, (1980) 4 SCC 680 ; Sutherdraraja Vs. State of Gujarat, (2004) 5 SCC 353 , after placing reliance on its earlier judgments i.e. P.N. Eswara Iyer etc. Vs. Registrar Supreme Court of India, (1980) 4 SCC 680 ; Sutherdraraja Vs. State, (1999) 9 SCC 323 ; Ramdeo Chauhan Vs. State of Assam, (2001) AIR SC 2231 ; and Devender Pal Singh Vs. State of NCT of Delhi, (2003) AIR SC 3365 ; observed that review applications are not to be filed for the pleasure of the parties or even as a device for ventilating remorselessness, but ought to be resorted to with a great sense of responsibility as well. 16. We do not find any good ground for the reasons to allow the present review application, accordingly review application is dismissed.