Tarsem Lal S/o Sh. Tara Chand v. Union Of India Through Secretary To Govt
2025-01-03
RAJESH SEKHRI, TASHI RABSTAN
body2025
DigiLaw.ai
JUDGMENT : Tashi Rabstan CJ: 1. This petition is filed by the petitioner in terms of Rule 51 of the Jammu & Kashmir High Court Rules seeking review of the judgment and order dated 10.12.2014 passed in SWP No. 593/2012, MP No. 921/2012 titled Tarsem Lal Vs. Union of India and others. 2. We have heard the learned counsel for the parties and considered their submissions. 3. The petitioner was appointed as Mazdoor vide order No. 1713/Rectt/16/E1B2 dated 03.08.2004 in Military Engineering Service (MES) by respondent No. 3 in the pay scale of Rs. 2550-55-2660-60-3200-(2550) plus usual allowance. He was on probation for a period of two years. His services were governed by the Civil Defence Service (Classification, Control & Appeal) Rules 1965 [“Rules of 1965”]. The respondents terminated the petitioner’s services vide order dated 31.10.2009 in reference to Explanation at Srl (viii) (a) Rule 11 of the Rules of 1965. 4. Being aggrieved, the petitioner filed OA No. 967/JK/2009 before the Central Administrative Tribunal, Chandigarh, questioning the order of termination dated 31.10.2009 on the ground that Sub Rule (VIII) (a) of Rule 11 of the Rules of 1965 was not applicable to him because he had already completed the maximum period of the probation and acquired the status of a permanent employee in the department of respondents and that the order of the termination was stigmatic in nature. The protection provided under Article 311 of the Constitution of India has not been provided to him as the petitioner being less educated not well versed with language. The Tribunal dismissed the petitioner’s application by virtue of order dated 22.09.2011. 5. Aggrieved of the Tribunal order, petitioner filed SWP No. 593/2012. The Division Bench relying upon the decisions reported in (1996) 11 SCC 605 titled Delhi Administration Versus Sushil Kumar , (2010) 14 SCC 103 titled Daya Shanker Yadav Versus Union of India and others and (2008) 3 SCC 222 State of Harayana Vs Dinesh Kumar and (2008) 11 SCC 314 case titled Union of India Vs Bipad Bhanjan Gayan and by applying the ratio of these judgments, has dismissed the writ petition vide judgement/order dated 10.12.2014. 6. Now review is being sought by the petitioner in the instant petition.
6. Now review is being sought by the petitioner in the instant petition. In support of the review petition, it is stated by the learned counsel for the review petitioner that this Court has erred in passing the judgement under review as petitioner has completed his probation period and acquired the status of permanent employee as such his services are deemed to have been confirmed on the post, therefore, he is entitled to protection in terms of Article 311 of the Constitution of India, but, this fact of the matter has not been considered by this Court while disposing of the petition. Learned counsel has also submitted that the petitioner neither at any point of time has suppressed any material information from the respondents while accepting the appointment as Mazdoor in MES nor have the respondents at any point of time asked for the same. The learned counsel has also submitted that the termination order is stigmatic in nature which requires procedure to be followed under Rule 14 of Rules of 1965. 7. In rebuttal to the submissions of learned counsel for the petitioner, the learned counsel for the respondents submits that the petitioner was on probation as laid down in the recruitment rules and during the probation period he was governed by the Rules of 1965. It is further contended that the verification report received by the respondent No.3 from the SSP, District Police Headquarters, Jammu, vide letter dated 21.01.2005 reveals that the petitioner was involved in a criminal case/ FIR No.281/200 under Section 307/326/34 RPC and 4/25 Arms Act which was registered at Police Station, Domana prior to his appointment in the MES, but the petitioner managed to secure a fake character certificate dated 10 th August. 2004 from SDPO, Akhnoor so as to get himself appointed in the MES. A regular inquiry was conducted. In the inquiry, the petitioner was found guilty of suppressing the material facts at the time of his recruitment in the department. This Court has rightly dismissed the writ petition while relying on various judgments on the point. Against the judgment, the petitioner filed SLP before the Hon’ble Supreme Court of India which came to be dismissed on 05.10.2015. After about two years of dismissal of the SLP, the petitioner has filed the present review petition. 8.
This Court has rightly dismissed the writ petition while relying on various judgments on the point. Against the judgment, the petitioner filed SLP before the Hon’ble Supreme Court of India which came to be dismissed on 05.10.2015. After about two years of dismissal of the SLP, the petitioner has filed the present review petition. 8. Meticulous examination of the present petition for review of the judgement dated 10.12.2014, makes it known that none of the grounds adumbrated therein can, strictly speaking, be said to fall within the ambit and scope of Order XLVII Rule 1 of the Code of Civil Procedure. This review petition, in essence, challenges the correctness of the judgement of this Court without pointing out any “error apparent on the face of the record” which can be reviewed. It is well settled that the review proceedings have to be strictly confined to the ambit and scope of Order XLVII Rule 1 CPC. 9. The Supreme Court in Thungabhadra Industries Ltd. s. The Government of Andhra Pradesh (1965 (5) SCR 174 at 186) has opined: “What, however, we are not concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an "error apparent on the face of the record". The fact that on the earlier occasion that Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an "error apparent on the face of the record", for there is a distinct which is real, though it might not always be capable of exposition between a mere erroneous decision and a decision which could be characterized as vitiated by "error apparent." A review is by no means an appeal in disguise whereby an erroneous decision is reheard corrected. but lies only for patent error." 10. In Smt. Meera Bhanjia v. Smt. Nirmala Kumari Choudhury (1995 (1) SCC 170) while quoting with approval a passage from Abhiram Taleshwar Sharma v. Abhiram Pishak Sharma & Ors. (1979 (4) SCC 389) , the Supreme Court held that review proceedings were not by way of an appeal and had to be strictly confined to the scope and ambit of Order XLVII Rule 1 CPC.
(1979 (4) SCC 389) , the Supreme Court held that review proceedings were not by way of an appeal and had to be strictly confined to the scope and ambit of Order XLVII Rule 1 CPC. Under Order XLVII Rule 1 CPC, a judgment may be open to review, inter alia, if there is a mistake or an error apparent on the face of the record. An error which is not self- evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII Rule 1 CPC. In exercise of jurisdiction under Order XLVII Rule 1 CPC, it is not permissible for an erroneous decision to be “reheard and corrected”. It must be remembered that a review petition has limited purpose and cannot be allowed to be “an appeal in disguise”. [See: Parsion Devi and others v. Sumitri Devi and others , (1997) 8 SCC 715 ]. 11. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the later only can be corrected by exercise of the review jurisdiction. A review cannot be permitted to operate as an appeal in disguise so as to enable an aggrieved party to re-agitate the matter and get it corrected. 12. In Shanti Conductors Private Limited v. Assam State Electricity Board and others , (2020) 2 SCC 677 , the Supreme Court, following Parsion Devi (supra) dismissed review petitions and held that the scope of review is limited and that an applicant/petitioner under the guise of review petition cannot be permitted to reagitate and reargue the questions which have already been addressed and decided. 13. The Supreme Court again in Shri Ram Sahu (Dead) through Legal Representatives and others v. Vinod Kumar Rawat and others, (2021) 13 SCC 1 , restated the law qua the scope of review under Section 114 read with Order XLVII, CPC. 14.
13. The Supreme Court again in Shri Ram Sahu (Dead) through Legal Representatives and others v. Vinod Kumar Rawat and others, (2021) 13 SCC 1 , restated the law qua the scope of review under Section 114 read with Order XLVII, CPC. 14. Yet again, the Supreme Court in S. Murali Sundaram v. Jothibai Kannan and others , reported as (2023) SCC OnLine SC 185 observed that even though a judgement sought to be reviewed is erroneous, the same cannot be a ground to review in exercise of powers under Order XLVII Rule 1 CPC. In the case of Perry Kansagra Vs. Smriti Madan Kansagra , (2019) 20 SCC 753 , it was observed by the Supreme Court that Review Court, while exercising review jurisdiction in an application under Order XLVII Rule 1 read with Section 114 CPC, does not sit in appeal over its own order. It was also observed that rehearing of the matter is impermissible in law and review is not appeal in disguise and that power or review can be exercised for correction of a mistake but not to substitute a new view inasmuch as such powers can be exercised within the limits of the statute dealing with the exercise of power. It is wholly unjustified and exhibits a tendency to rewrite a judgement by which the controversy has been finally decided. 15. In Arun Dev Upadhyaya v. Integrated Sales Service Limited and another (2023) 8 SCC 11 , the Supreme Court iterated the law, by holding that: “15. From the above, it is evident that a power to review cannot be exercised as an appellate power and has to be strictly confined to the scope and ambit of Order XLVII Rule 1 CPC. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.” 16. A Constitution Bench in Beghar Foundation v. Justice K.S. Puttaswamy (Retired) and others, (2021) 3 SCC 1 , held that even change in law or subsequent decision/judgement of a Coordinate Bench or Larger Bench by itself cannot be regarded as a ground for review. 17.
A Constitution Bench in Beghar Foundation v. Justice K.S. Puttaswamy (Retired) and others, (2021) 3 SCC 1 , held that even change in law or subsequent decision/judgement of a Coordinate Bench or Larger Bench by itself cannot be regarded as a ground for review. 17. In Sanjay Kumar Agarwal v. State Tax Officer , (2023) SCC OnLine SC 1406 , the Supreme Court has observed that the parties are not entitled to seek review of judgement merely for the purpose of rehearing and a fresh decision of the case. Applying the principles of Order 47 Rule 1 CPC, it is said that a review of a judgement is open, inter alia, if there is a mistake or error apparent on the face of the record. An error which is not obvious and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record. The Supreme Court has culled down the following propositions relevant for the review of a judgment: “(i) A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record. (ii) 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. (iii) An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review. (iv) In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be “reheard and corrected”. (v) A Review Petition has a limited purpose and cannot be allowed to be “an appeal in disguise”. (vi) Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided. (vii) An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.
(vii) An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions. (viii) Even the change in law or subsequent decision/ judgment of a co-ordinate or larger Bench by itself cannot be regarded as a ground for review.” 18. In the present case, the submissions made by the learned counsel for the review petitioner have been given thoughtful consideration by us. There is no potency in the submissions and contentions made by learned counsel for review petitioner, more particularly given the strenuous submission made by Mr. Vishal Sharma, learned DSGI appearing for respondents, that all that has been observed and said by this Court in the judgement knocks the bottom out of the basic edifice of review petition. 19. This Court while passing the judgement, review of which is sought herein, has seen, observed and, thus, held that the judgement under review did not call for any interference. Learned CAT, Chandigarh Bench has dismissed the OA vide order dated 22.09.2011 and against that order, the petitioner filed writ petition being SWP No.593/2012 before this Court which too was dismissed vide order dated 10 th December, 2014 and thereafter petitioner filed Special Leave Petition bearing SLP(C) No. 26952/2015 before the Hon’ble Supreme Court of India which too came to be dismissed vide order dated 05.10.2015. Thus, the petitioner after challenging the order and ultimately failing upto Supreme Court cannot ask for review of the judgment passed in the year 2014 which otherwise amounts to rehearing the main case whereas the judgment under review has already been considered and taken note of all the contentions raised in the present review petition, therefore, the petitioner cannot seek rehearing of the writ petition under the garb of this review petition as this Court cannot sit over the matter as an appellate authority. The reliance placed by the learned counsel for review petitioner on the judgment reported in 2005 AIR SCW 1058 titled Secretary, Department of Home Secy. A.P. and others Vs. B. Chinnam, Naidu does not render any aid and assistance to the case set up by him or for that matter submissions made by him, given the discourse made herein before qua scope of review. 20.
A.P. and others Vs. B. Chinnam, Naidu does not render any aid and assistance to the case set up by him or for that matter submissions made by him, given the discourse made herein before qua scope of review. 20. While having glimpse of review petition on hand, no case much less cogent or material one has been made out by review petitioner to seek review of the Judgement dated 10 th December, 2014. Same grounds and submissions, factual in character, have been made, which find place in the writ petition. There is no error apparent on the face of the record warranting review of the judgement dated 10 th December, 2014. The review petition is wholly misplaced and liable to be dismissed as the petitioner has failed to project any error apparent on the face of record which could justify review of the judgment and order dated 10 th December, 2014 passed in SWP No.593/2012. 21. In view of foregoing reasons and discussion, review petition on hand is, dismissed.