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2022 DIGILAW 425 (AP)

Director General of Police, A. P. v. D. Ravi Babu

2022-04-20

M.SATYANARAYANA MURTHY

body2022
JUDGMENT 1. This interlocutory application is filed under Order XLVII Rule (1) of Civil Procedure Code (for short 'C.P.C') to review the order passed by this Court in W.P.No.23315 of 2020 dtd. 1/4/2021. The main ground raised in the present review petition is that, this Court did not consider Standing Order 179 (2) and (3) of the Andhra Pradesh Police Manual. Standing Order 179 deals with Departmental enquiries in case of fraud or embezzlement of Government Money or criminal misconduct etc. Therefore, there is no clear embargo in proceeding with the enquiry till completion of criminal trial against this petitioner. It is contended that, this issue was not considered by this Court, though such contention was urged at the time of hearing argument for the first time. Hence, the petitioner requested this Court to review the order passed by this Court earlier in W.P.No.23315 of 2020 dtd. 1/4/2021. Respondents filed counter affidavit, denying material allegations, inter alia, contending that, the contention based on Standing Order No.179 was raised before this Court and the same was not considered, but no such plea was raised in the counter affidavit filed by the respondents. However, that is not the ground to review the order dtd. 1/4/2021 according to the respondent and that, Standing Order Nos.150 and 179 are running contrary to one another and in such case, this Court cannot exercise power of review under Order XLVII Rule (1) of C.P.C and requested to dismiss the review petition. Learned Government Pleader for Services-I filed rejoinder raising a specific contention in Paragraph No.12 of Page No.8, contending as follows: "12. Since, trial has not been commenced in the both cases, there is no conflict between these provisions to complete the remaining part of the disciplinary proceedings. According to para 150, since the trial has not been commenced, there is no scope for delivery of judgment at the earliest and hence, disciplinary process can go on and the process should not be hampered. As per Order 179, there is no need to wait to complete the disciplinary proceedings on account of criminal charges. It cannot be said that the criminal charges are pending in the case when the criminal charges are not framed yet in one case (Cr.No.123/2017) and even charge sheet is not filed in another case (Cr.No.66/2018). As per Order 179, there is no need to wait to complete the disciplinary proceedings on account of criminal charges. It cannot be said that the criminal charges are pending in the case when the criminal charges are not framed yet in one case (Cr.No.123/2017) and even charge sheet is not filed in another case (Cr.No.66/2018). It is the only intention of the charged officer to create confusion to escape disciplinary action in near future." Learned Government Pleader for Services-I also placed on record judgments of the Hon'ble Apex Court in M. Paul Anthony vs. Bharat Gold Mines Limited, AIR 1999 SC 1416 Karnataka Power Transport Corporation Limited vs. Sri C. Nagaraju,SLP (C) No.25909 of 2013 dtd. 16/9/2019 judgment of Division Bench of this Court in N. Shankar Prasad vs. The State of Andhra Pradesh,W.A.No.384 of 2020 dtd. 1/4/2021 order of this Court in D. Ravi Babu vs. Director General of Police,W.P.No.23315 of 2020 dtd. 1/4/2021 and Circular Memorandum issued by the Director General of Police, Andhra Pradesh in Rc.No.340/L&O-III/2021 dtd. 8/7/2021. On the strength of these documents, the learned Government Pleader for Services-I sought to review the order dtd. 1/4/2021. During hearing, learned counsel for the review petitioners raised a specific ground that this Court did not consider the effect of Andhra Pradesh Police Manual. Though such contention was not raised in the counter affidavit filed in the writ petition, it was raised at the time of advancing argument. Learned counsel for the review petitioners also raised several other contentions that some of the judgments were not considered as such contention is without any specific plea and requested to review the order in the writ petition. Whereas, Sri G. Seena Kumar, learned counsel for the writ petitioner, contended that, Standing Order Nos.150 and 179 are running contrary to each other and it is difficult to follow either of the Standing Orders of A.P. Police Manual and therefore, it is not a ground to review the order and requested to dismiss the review petition. Admittedly, review petition is filed under Order XLVII Rule (1) of C.P.C and the scope of review is limited. Order XLVII Rule (1) of C.P.C reads as follows: 1. Admittedly, review petition is filed under Order XLVII Rule (1) of C.P.C and the scope of review is limited. Order XLVII Rule (1) of C.P.C reads as follows: 1. Application for review of judgment- (1) Any person considering himself aggrieved- (a) by a decree or Order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or Order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or Order made, or on account of some mistake or error apparent on the face of the record of for any other sufficient reason, desires to obtain a review of the decree passed or Order made against him, may apply for a review of judgment to the Court which passed the decree or made the Order. (2) A party who is not appealing from a decree on Order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. Explanation-The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. Explanation to Sub-Rule (2) of Rule (1) of Order XLVII of C.P.C further clarifies that, the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. Therefore, the jurisdiction under Rule (1) of Order XLVII of C.P.C for review of the order is only when the parties are not able to produce evidence on important matters or evidence which after the exercise of due diligence before pronouncement of judgment or the order was passed on account of mistake or error apparent on the face of record. But, here, in this case, the contention of the review petitioners is about non-consideration of Standing Order No.179(2) of Andhra Pradesh Police Manual. Except that, no other contention is raised. The Standing Orders contained in A.P. Police Manual are only administrative guidelines, thereby; the statute will prevail over the Standing Orders. The enforceability of the Board Standing Orders was considered by the Division Bench of the High Court of Andhra Pradesh in Kanumuri Anji Raju v. State of Andhra Pradesh,1960 (2) An.W.R 272 (D.B) candidly held that the Standing Orders are merely executive instructions issued for the guidance of officers who are to carry out the policy of the Government. The said principle was reiterated by the learned single Judge of the High Court of Andhra Pradesh in Smt. C. Rajamma v. The District Collector, 1995 (1) ALT 681 Further, a learned single Judge of this Court in Katta Rattamma v. Gannamaneni Kotaiah,1975 (2) An.W.R 122 held that the Standing Orders are only administrative instructions and they do not have any statutory force, or force of law. Therefore, standing orders are not having legal enforceability and they are only guidelines for the purpose of administration. Hence, Standing Orders are not a law passed by the State Legislature or Parliament. In view of the law laid down by various Courts, Standing Orders have no statutory basis and they are only Administrative guidelines. The contention of the review petitioners is that, Standing Orders or Standing Instructions in Andhra Pradesh Police Manual are binding on the officials of the department and they can proceed with the departmental enquiry, despite pendency of criminal case against the writ petitioner based on same cause of action and facts and charge. No doubt, the Standing Orders are binding on the departmental officials. But, they are not passed by exercising power under Article 309 of the Constitution of India to attach any statutory validity and bind the employees working under the police department. No doubt, the Standing Orders are binding on the departmental officials. But, they are not passed by exercising power under Article 309 of the Constitution of India to attach any statutory validity and bind the employees working under the police department. They will not over-ride the Andhra Pradesh State and Subordinate Service Rules, 1996 and Andhra Pradesh Civil Services (Classification, Control And Appeal) Rules, 1991. Therefore, though they are binding on the police officials dealing with the affairs of the police department, they are not having any statutory force and they will not come in the way of passing any order. In view of the specific contention raised by Sri G. Seena Kumar, learned counsel for the writ petitioner, it is apposite to extract Standing Order Nos.150 and 179(2) and (3) for better appreciation of the case: "150. Where there is a grave criminal misconduct on the part of a police officer, action should be taken in terms of APCS (CC&A) Rules. If prosecution is also launched against such police officer in a criminal court and if the departmental inquiry is completed before the judgment in the criminal court is pronounced, the decision in the departmental proceeding shall ordinarily be postponed till the criminal case is disposed of. Standing Order 179 (2) and (3) reads as follows: 2. When a criminal case is pending in a court, departmental proceedings should be suspended. In such cases it must be decided whether the departmental proceedings should be taken in the first instance before filing a charge sheet. However departmental enquiry can take place simultaneously with police investigation. Laying of charge sheet subject to limitations provided under Cr.P.C. can be delayed till the departmental action is completed. 3. If it is decided to take departmental action first, the departmental proceedings should not be postponed till a criminal case is launched and disposed off, but orders should be passed on merits of the case." Therefore, Standing Order Nos.150 and 179(2) and (3) are contrary to one another and either of them cannot be applied to the present facts of the case and failure to consider the same is not a ground to review the order passed by this Court, exercising power under Order XLVII Rules (1) and (2) of C.P.C. The power of review is distinct from the Court's power to hear appeals, i.e. the appellate jurisdiction. When hearing a review petition filed against its own order or judgment, the Court does not rehear the case at hand, as it would in an appeal. The purpose of a review petition is limited to remedying an apparent error or the resultant grave injustice that has been the consequence of a decision of the Supreme Court. The Court is thus restricted in the exercise of the power of review to cases where there is an error apparent on the face of the record or in accordance with the provisions of Order XLVII of the Code of Civil Procedure, 1908. The scope of the power of review was explained by the Hon'ble Apex Court in Northern India Caterers (India) v Lt. Governor Of Delhi, (1980) 2 SCC 167 wherein the Court held that "a party is not entitled to seek a review of a judgment delivered by the Courts merely for the purpose of a rehearing and a fresh decision in the case. Normally the principle is that a judgment pronounced by the Court is final and departure from that principle is justified only when circumstances of a substantial and compelling circumstances make it necessary to do so. If the attention of the Court is not drawn to a material statutory provision during the original hearing the Court will review its judgment. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice." Thus, the power to review its own decisions is not an inherent power of the Court, but a protective measure against the fallibility of the orders of the Court and it such power must be exercised in a limited manner. Even if the principle laid down in the above judgment is applied to the present facts of the case, when a fact was not pleaded, more particularly, about Standing Order No.179(2) and (3) of A.P. Police Manual, mere raising a contention at the time of hearing is not sufficient and it is not based on any plea in the counter affidavit. Apart from that, the Standing Orders have no statutory legal force, more so, both Standing Order Nos.150 and 179 are conflicting to each other. Apart from that, the Standing Orders have no statutory legal force, more so, both Standing Order Nos.150 and 179 are conflicting to each other. Learned counsel for the respondent/writ petitioner - Sri G. Seena Kumar, in support of his contention, drawn attention of this Court to Kamlesh Verma vs. Mayawati and others, 2013 (8) SCC 320 where the Hon'ble Apex Court dealt with the scope of review and held in Paragraph No.9 as follows: "In a criminal proceeding, review is permissible on the ground of an error apparent on the face of the record. A review proceeding cannot be equated with the original hearing of the case. In M/s. Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, this Court, in paragraph Nos. 8 and 9 held as under: 8. It is well-settled that a party is not entitled to seek a review of a judgment delivered by this Court merely' for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so: Sajjan Singh v. State of Rajasthan. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment: G.L. Gupta v. D.N. Mehta. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice: O.N. Mohindroo v. Distt. Judge, Delhi. Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order 40 Rule 1, Supreme Court Rules, 1966). In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order 40 Rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that 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 v. Sheikh Habib. 13. In a review petition, it is not open to the Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Conclusion arrived at on appreciation of evidence cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. This Court, in Kerala State Electricity Board v. Hitech Electrothermics and Hydropower Ltd. and Ors. (2005) 6 SCC 651 , held as under: 10....In a review petition it is not open to this Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Learned Counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review Petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise. 14. Review is not re-hearing of an original matter. It has not been contended before us that there is any error apparent on the face of the record. To permit the review Petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise. 14. Review is not re-hearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to re-open concluded adjudications. This Court, in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd. (2006) 5 SCC 501 , held as under: 11. So far as the grievance of the applicant on merits is concerned, the Learned Counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases. 12. When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of "second innings" which is impermissible and unwarranted and cannot be granted. 15. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of Code of Civil Procedure. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. 15. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of Code of Civil Procedure. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction." Even by applying the principle laid down in the above judgment, I find no manifest error resulting in grave injustice to the police department/review petitioners. If the police department has to wait till pronouncement of judgment in the criminal trial pending before the competent court and if the department is allowed to proceed with the departmental proceedings and take a decision to impose any punishment, the employee facing trial will have to suffer serious consequences on account of the finding recorded by the authorities in the departmental proceedings. The injustice being caused to the delinquent is graver in nature than the inconvenience being caused to the departmental authorities. In such case, it is difficult to exercise power of review under Order XLVII Rule (1) of C.P.C. On the other hand, no apparent error is pointed out except placing bunch of judgments which are not relevant at this stage, as consideration of those judgments would amount to rehearing of the writ petition, which is impermissible under law, in view of the principle laid down by the Hon'ble Apex Court in Northern India Caterers (India) v Lt. Governor Of Delhi (referred supra) and by applying the same to the present facts of the case, I find no ground to review the order in W.P.No.23315 of 2020 dtd. 1/4/2021. Consequently, the review petition is liable to be dismissed. In the result, Review I.A.No.1 of 2021 is dismissed.