Suneel Kumar Sharma vs Union Of India Thru' Chairman & ...
2017 Latest Caselaw 3062 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 37
 
Case :- WRIT - A No. - 26594 of 2010
 
Petitioner :- Suneel Kumar Sharma
 
Respondent :- Union Of India Thru' Chairman & Others
 
Counsel for Petitioner :- H.P. Pandey,Pushpa Singh
 
Counsel for Respondent :- A.S.G.I.,S.C.
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajiv Lochan Mehrotra,J.

Heard learned counsel for the petitioner Sri H.P. Pandey and Sri S.K. Mishra for the respondents.

This writ petition questions the correctness of the original judgment in Original Application No. 98 of 2010 dated 25th January, 2010 as well as the rejection of the Review Application dated 24th March, 2010 in the same matter by the Central Administrative Tribunal.

The case of the petitioner before the Tribunal was in relation to his alleged unauthorized absence from 16.12.1995 to 14.12.2000. This dispute was raised in the background of the facts which is not necessary to be delineated at this stage in view of the nature of the order that we propose to pass.

The original application of the petitioner for the aforesaid relief was rejected by the order of the Tribunal on 25th January, 2010 by the following order:-

"1.We have heard Shri H.P. Pandey, learned counsel for the applicant and Shri R.D. Tiwari, learned counsel for the respondents.

2. We have seen para 4 of the order dated 24.9.2009 (Annexure A-1) that the order passed by the Tribunal has already been stayed by the Hon'ble High Court in Civil Misc. Writ Petition No. 38808 of 2004. Since, the matter is seized with the Hon'ble High Court, we do not inclined to admit the case.

3. Accordingly, O.A. is dismissed at admission stage itself. If stay order is vacated / modified or some final order is passed, it will be open for the applicant to approach before this Tribunal, if so advised. No costs."

A perusal thereof would indicate that the Tribunal was of the opinion that since a similar matter had been disposed of by the Tribunal and the High Court had passed an interim order therein, therefore, the application of the petitioner need not be entertained and it will be open to the petitioner to approach the Tribunal if so advised after final orders are passed in that writ petition.

We have proceeded to examine the facts of this case and the copy of the order in the case of Akhilesh Narain Singh Vs. Union of India & Others in Original Application No. 228 of 1999 reveals that the said dispute was with regard to an interview and the results for appointment on the post of Electrician as well as payment of salary in respect thereof. The writ petition filed against the same was Writ No. 38808 of 2004 in which an interim order was passed but later on the writ petition itself has been dismissed on 16.8.2016 by the following order:-

"1. Called in revised. None appeared on behalf of petitioners. However, we have perused the record.

2. By means of present writ petition, petitioners have sought following relief:- 

"(i) Issue, a writ, order or direction in the nature of certiorari quashing the impugned order dated 19.11.2003 passed by Learned Central Administrative Tribunal Bench at Allahabad in O.A. No. 228 of 1999 (Annexure No.1 to this writ petition)."

3.Having gone through the entire writ petition, we do not find any ground entitling petitioners for grant of any of above reliefs. No interference, therefore, is called for.

4.Dismissed.

5.Interim order, if any, stands vacated."

A perusal of the aforesaid quoted order would indicate that reference is to the same original application has been made in the case of Akhilesh Narain Singh and the order passed thereon and consequently, the same had been relied upon while dismissing the original application of the petitioner.

It appears that the petitioner filed a review application contending that the said case has got nothing to do with the dispute raised by the petitioner and that the judgment dated 25th January, 2010 therefore, suffers from an apparent error on the face of record, hence it should be reviewed. The Tribunal by the impugned order dated 24th March, 2010 rejected the review application on the ground that the judgment had been passed after hearing the learned counsel for the parties and there was no justifiable ground to review the judgment as the scope of review is very narrow and a limited one.

Aggrieved, the petitioner has arrived before this Court contending that firstly, a mere pendency of a writ petition before this Court with a stay order does not dis-entitle a similarly placed person from moving an application on the original side before the Central Administrative Tribunal. Secondly, the review application of the petitioner could not have been rejected as there was a clear error apparent on the face of record inasmuch as the facts of such a case were taken into consideration which had no factual or legal similarity or any concern whatsoever with the facts of the present case.

Learned counsel for the respondents Sri S.K. Mishra, submits that the merits of the claim can be again looked into by the Tribunal in accordance with law.

Having considered the submissions raised, we find that the order of the Tribunal is manifestly erroneous and proceeds on such assumption of facts and law which are totally erroneous and foreign to the controversy.

The Tribunal has to exercise its original jurisdiction and even if a similar matter has been disposed of by it, the Tribunal can entertain a similar claim and either keep it pending or dispose it of on the same terms. Merely, because a stay order has been passed by the High Court in a separate similar claim, the same does not take away the jurisdiction of the Tribunal to entertain a similar matter. The discretion and exercise of jurisdiction cannot be avoided, surrendered or waived on this ground inasmuch as the stay of a judgment does not take away its impact and simply puts it into abeyance. The ground therefore taken in the impugned order dated 25.1.2010 for not entertaining the application of the petitioner is an absolute procedural as well as substantive error.

The reliance placed by the Tribunal to dis-entitle the petitioner from pursuing his original application is on such facts that have absolutely no concern with the present case at hand. Admittedly, the petitioner herein is seeking a relief in respect of the alleged period of unauthorized absence whereas the judgment that has been relied upon to non-suit is in relation to selections and appointment on the post of Electrician. They do not appear to have any similarity or concern with the nature of the claim presently involved.

Having said so, the review application if filed, ought to have been entertained by the Tribunal inasmuch as this was a clear error apparent on the face of record. The Tribunal proceeded on an erroneous assumption of such facts which were not applicable to the controversy and proceeded to dislodge the petitioner from pursuing his remedy which was obviously his right to pursue before the Tribunal itself. There cannot be a better case of an error apparent on the face of record.

Consequently, both the orders of the Tribunal dated 25.01.2010 and 24.03.2010 suffer from manifest errors and the writ petition deserves to be allowed for the reasons given hereinabove.

We allow the writ petition and set aside both the impugned orders with a request to the Tribunal to dispose of the claim of the petitioner on merits preferably within six months from the date of production of the certified copy of this order.

The original application of the petitioner shall stand restored before the Central Administrative Tribunal.

Order Date :- 8.8.2017

S.Chaurasia