* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.359/2010
% Date of Decision: 25.02.2011
UOI & Ors. ...... Petitioners
Through Mr.Ajay Vikram Singh, Advocate
Versus
Jai Kanwar Kaushik ...... Respondent
Through Nemo
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in NO
the Digest?
ANIL KUMAR, J.
* CM No. 2179-2180/2011 These are the applications by the petitioner/applicant seeking exemption from filing certified copies of the Lower Court Record and the certified copies of the translation of the annexures.
Allowed subject to just exceptions.
CM No. 2181/2011 & 2182/2011 & RA No. 70/2011
1. These are the applications for condonation of delay in filing and refilling the review application and for Review of order dated 20th January, 2010 dismissing the writ petition of the petitioners against the R.A 70 of 2011 in W.P.(C) No.359/2010 Page 1 of 10 order dated 12th August, 2009 passed in OA No. 2123/2004 titled as Jai Kanwar Kaushik v. UOI and Ors. The petitioner/applicant has sought condonation of delay of 124 days in re-filing the application for review and for condonation of delay of 194 days in filing the review application.
2. By the order dated 20th January, 2010, the writ petition of the petitioner against the order dated 12th August, 2009 passed in OA 2123/2004, was dismissed whereby the Tribunal had directed the petitioners to disburse pay and allowances to the respondent for the period on which he was not on duty was passed and the plea of the petitioners that the respondent was avoiding to join his duty on the post of Electric Fitter (Power), though, the said post did not bring him in contact with Diesel oil, grease, mobile oil, chromic water and petrol etc. was declined by the Tribunal.
3. The petitioner/applicant has filed one application seeking condonation of 194 days of delay in filing the review application alleging that the impugned order was examined and the department after analyzing the facts came to the conclusion that a review petition has to be filed against the impugned order dated 20th January, 2010. However, no facts have been disclosed as to when the order was examined and analyzed by the department and when it was concluded to file the review application and who had considered and examined the order and R.A 70 of 2011 in W.P.(C) No.359/2010 Page 2 of 10 why the concerned official or officials could not consider and analyze the order within the period of limitation. The averments made in the application are utterly vague and do not constitute sufficient cause as contemplated under law and in the facts and circumstances of the case. The allegations made in the application seeking condonation of 194 days delay are as under:-
"2. That the impugned order was passed on 20.01.10. The impugned order was examined and the department after analyzing the facts and circumstances of the case came to conclusion that a Review Petition can be filed against the impugned order.
3. That thereafter the recommendation for filing Review were sent to the Competent Authority which took some time in according final sanction to file a Review Petition. The process took some time because the officers of the Railways have been busy due to the Common Wealth Games. So the file movement remained slow.
4. That thereafter the counsel was assigned the case. The case was then drafted, the annexures were typed and then the draft was sent back to the department for finalizing and then for signing of the affidavit."
4. Similarly, in the application seeking condonation of delay of 124 days in refilling the review application, no facts have been disclosed which would constitute sufficient cause. The application for condonation of 124 days delay in refilling the review application completely lacks in material particulars. The averments made in the application seeking condonation of 124 days delay in refilling are as under:-
"2. That the present Review Petition was filed on 1/9/10 whereupon the Registry of this Hon‟ble Court put some R.A 70 of 2011 in W.P.(C) No.359/2010 Page 3 of 10 objections and matter was taken back from the registry. There were objections for dim annexures, application for condonation of delay etc. The annexures were sent for typing, the application for condonation of delay was drafted and in the mean time the time for refilling the petition had elapsed and hence the present application for delay in refilling has been drafted and then sent for signing of the accompanying affidavit to the department. Hence it took some time in refilling the present petition.
3. That during this a delay of 124 days has been caused in refilling the present Review Petition."
5. Though, while considering the plea of condonation of delay, the sufficient cause should be considered with pragmatism in justice oriented approach rather than a technical defection of sufficient cause explaining everyday‟s delay. However, some cogent reason has to be explained and facts are to be disclosed so that facts disclosed may constitute sufficient cause.
6. Perusal of the applications of the applicant for condonation of delay, it is apparent that no facts have been disclosed except the bald allegation that the order was examined and the department analyzed the facts and came to conclusion that a review petition is to be filed and for seeking condonation of delay in re-filing, nothing has been disclosed which would constitute sufficient cause as contemplated under law and in the facts and circumstances of the case.
R.A 70 of 2011 in W.P.(C) No.359/2010 Page 4 of 10
7. In the circumstances, the learned counsel for the petitioner has failed to make out sufficient cause for condonation of delay of 124 days in re-filing the review application and for condonation of delay of 194 days in filing the review application. The applications are therefore, without any merit and are liable to be dismissed. Therefore, the applications for condonation of delay of 194 days in filing the review application and condonation of 124 days delay in refilling the review application are dismissed.
8. Even the review application is without any merit as the review has been sought on the ground that the work of Electric Fitter (Power) is to change bulbs, switches, fan etc. which does not involve use of diesel oil, grease, mobile oil, chromic water or petrol etc. and therefore the respondent could not have refused the work which was offered to him The review applicant has contended that Court has ignored the fact that the Chief Chemical Superintendent sought wrong advise from Sr. DME/DSL as to whether a job of Tech. (Elect.), Group III comes with contact with diesel oil, grease, mobile oil, chromic water or petrol etc. in place of seeking advice for Electric Fitter (Power) as the scope of Technical (Elect.) Group-III is entirely different from the scope of work of Electric Fitter (Power). The review of the order dated 20th January, 2010 is also sought on the ground that the refusal given by the respondent in his own letters dated 31st August, 2001, 19th October, 2001 and 31st August, 2001 written to the Department, have been R.A 70 of 2011 in W.P.(C) No.359/2010 Page 5 of 10 completely ignored. According to the petitioners, the jobs offered to the respondent were refused by him being heavy jobs and he could not do the duties involved in them and therefore, he wanted to escape from the heavy work to which he was not entitled for. In the circumstances, the plea raised is that the Electric Fitter (Power) and Tech. (Elect.) are different and that the respondent has not gone for re-examination on 8th January, 2003 and remained illegally absent.
9. The facts and circumstances as has been alleged by the petitioners were agitated before this Court and were repelled. The petitioners are raising the same grounds and wants to have rehearing of the entire matter. It is no more res integra that a review cannot be sought merely for fresh hearing or arguments or correction of an erroneous view taken earlier. The power of review can be exercised only for correction of a patent error of law or fact which stays in the face without any elaborate argument being needed for establishing it. This power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047 the Supreme Court held that :-
"It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive R.A 70 of 2011 in W.P.(C) No.359/2010 Page 6 of 10 limits to be exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of 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 merit."
10. This Court, while dismissing the writ petition of the petitioner had categorically noted that by order dated 12th August, 2009, Tribunal had allowed the original application being O.A No. 2123/2004 allowing pay and allowances of the intervening period to the respondent during the period he was stopped by the petitioners till such time the respondent was adjusted in an alternate job. The Tribunal had also come to the conclusion that despite medical advice not to put the respondent on a post where he could come in contact with diesel oil, grease, mobile oil, chromic water or petrol etc., he was not offered the appropriate alternative appointment till such time he was appointed as halwai and therefore, the petitioners should be held liable and responsible for keeping the respondent away from the job of which could not be performed by him.
R.A 70 of 2011 in W.P.(C) No.359/2010 Page 7 of 10
11. While dismissing the writ petition of the petitioners by order dated 20th January, 2010, this Court also relied on petitioners‟ Circular bearing No. RBE 213/2000 providing for absorption of medically de- categorized staff in alternative employment and further contemplating that such an employee can be kept on special super-anomaly post till suitable post is available. Reliance was also placed on the provision contained under Section 47 of the Persons with Disability (Equal Opportunities Protection of Rights and Full Participation) Act, 1995.
12. The plea of the petitioners that the Tribunal had completely ignored that the respondent was provided with alternative job was categorically repelled after considering all the pleas and contentions which has again been raised by the petitioners now. The Tribunal and this Court had also noticed that the medical records had reflected that the post which was offered to the respondent was not such a post, where he was fit to perform his duties in view of the stipulations contained in Medical Certificate bearing No.-54 MED/Mb/J&K/1999 issued by Chief Staff Surgeon.
13. In view of these categorical consideration and observation, the petitioners cannot contend that the order dated 20th January, 2010 has an error apparent on it or new facts have come to the notice of the petitioners which were not known to them despite due diligence on their R.A 70 of 2011 in W.P.(C) No.359/2010 Page 8 of 10 part which would entail review of order of dismissal of the petitioners writ petition against the order of the Tribunal.
14. The pleas on the basis of which the review is sought are not new nor based on new material and were before the Tribunal and before this Court. In the garb of review, the petitioner/applicant is not entitled for fresh hearing or arguments for correction of an erroneous view, if any, taken earlier. There is no patent error of law or fact in the facts and circumstances. In any case, an error which is not self evident and has to be detected by a process of reasoning can hardly said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47 R. 1 of CPC. In exercise of the jurisdiction under Order-47 R.1 of CPC, it is not permissible for an erroneous decision, if any, to be re-heard and corrected. A review petition has a limited purpose and cannot be allowed to be appeal in disguise.
15. Consequently, there are no sufficient grounds to condone the delay of 124 days in re-filing the application for review and for condoning the delay of 194 days in filing the review application. Even on merits there are no grounds to review the order dated 20th January, 2010 dismissing the writ petition of the petitioners against the order of the Central Administrative Tribunal, Principal Bench. All the applications are therefore dismissed.
R.A 70 of 2011 in W.P.(C) No.359/2010 Page 9 of 10
Since the prayer for review has been declined, the application for stay being CM No. 2178/2011 does not survive and the application for stay is therefore, dismissed as infructuous.
ANIL KUMAR, J.
February 25, 2011. MOOL CHAND GARG, J.
„rs‟ R.A 70 of 2011 in W.P.(C) No.359/2010 Page 10 of 10