State Of U.P . Thru' Principal ... vs Durvijay Singh
2018 Latest Caselaw 3320 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 40
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 799 of 2013
 

 
Appellant :- State Of U.P . Thru' Principal Secry. And 4 Others
 
Respondent :- Durvijay Singh
 
Counsel for Appellant :- A.K Roy,S.C.
 
Counsel for Respondent :- Ram Niwas Singh,A.N. Tripathi,Sanjay Kumar Pandey
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Harsh Kumar,J.

Ref:- Civil Misc. Review Application No. 292276 of 2016.

Ref:- Civil Misc. Delay Condonation Application No. 07 of 2018.

Ref:- Civil Misc. Recall/Restoration Application No. 08 of 2018.

Heard learned counsel for the applicants and perused the affidavit filed in support of the delay condonation application and the restoration application.

We have also perused the cause shown seeking restoration. Both causes appear to be sufficient, and accordingly, the application for condoning the delay as well as the restoration application are allowed.

The restoration application shall be treated to be within time. The order dated 25.08.2017 of the review petition being dismissed in default is set aside and the review petition shall stand restored to its original number.

Order On Appeal:-

Heard Sri A.N. Tripathi, learned Senior Counsel alongwith Sri Sanjay Kumar Pandey, learned counsel for the applicant-appellant.

This review application has been preferred contending that the learned Division Bench which proceeded to allow the appeal of the appellant-State considered additional material that was filed alongwith a supplementary affidavit at the stage of appeal, comprising of material the contents whereof had not been disclosed before the writ court. This additional material according to the learned counsel for the applicant did not conform to the principles of Order 41 Rule 27 Civil Procedure Code, inasmuch as, if any additional material including pleadings or evidence was required to be entertained, then the same ought to have been formally admitted for which there was no prayer on behalf of the appellant-State.

Inspite of this, the applicant respondent petitioner had filed a supplementary counter affidavit controverting the allegations contained in the said supplementary affidavit. Sri Tripathi contends that the learned Division Bench proceeded to allow the appeal on the strength of the averments and the material contained in the said supplementary affidavit without adverting to the reply given by the applicant through the supplementary counter affidavit.

He further submits that the observations made by the learned Division Bench to the effect that the learned counsel for the petitioner on repeated queries could not place any document which may show that the salary was ever paid to the petitioner during the period he claims that he had worked prior to the posting of Gorakhpur, had been suitably replied with in the supplementary counter affidavit that was omitted to be considered.

Sri Tripathi then contends that not only this, the learned Division Bench did not traverse the impact of the finality of the earlier judgments relating to the status of service of the applicant, and consequently, a serious prejudice has been caused to the applicant as such the judgment deserves to be reviewed.

He then submits that it is correct that the applicant had filed a special leave to appeal before the Apex Court against the judgment under review but the same was rejected in limine, whereafter this review application was filed after collecting material with regard to the payment of salary under the Right to Information Act which has been provided for and has been filed alongwith review application. He contends that even though averments had been made in the supplementary counter affidavit filed on behalf of the applicant, no successful rebuttal had been made by the State to the said facts, and therefore, such facts which formed part of the record that have been completely omitted to be considered clearly amounts to an error apparent on the face of the record. Other grounds of review have also been raised on equity as well as on the issue of discharge of burden by the State in relation to the evidence to support the allegations of fake and forged appointment.

In the exercise of a review jurisdiction, the Court has limited powers and it has to examine as to whether there is any error apparent on the face of record or not before proceeding to entertain the plea of review.

In this regard, it is relevant to mention that against the judgment under review, a special leave to appeal was filed and was dismissed in limine on 16.11.2015, order whereof is extracted hereinunder:-

"The special leave petition is dismissed.

Pending application is disposed of in view of the above."

Learned Senior Counsel has relied on the Apex Court decision in the case of Kunhayammed & Others Vs. State of Kerela 2000 SC 2587 to contend that since no leave had been granted by the Apex Court, the judgment under review will not stand merged in the order of the Supreme Court, and consequently, a review petition would be maintainable. It is urged that this issue was categorically dealt with in the aforesaid judgment of the Apex Court and the same has been answered in favour of the applicant, hence this review application is maintainable.

On the other hand Sri Ganguly, learned Standing Counsel submits that the entertainment of the review petition after the dismissal of the appeal in limine may amount to a subversion of judicial discipline, and for this, he has placed reliance on the Apex Court judgment in the case of Abbainaligai Partnership Firm Vs. K. Santhakumaran 1998 (7) SCC 386. The contention raised is that once the special leave to appeal has been dismissed there is no occasion for this Court now to re-examine the issue, moreso when the present review application only amounts to a rehearing of the entire matter. He submits that no ingredient of Order 47 Rule 1 are available on record for the exercise of the review jurisdiction by this Court, and consequently, the review application deserves to be dismissed.

We have considered the aforesaid submissions and what we find is that the learned Division Bench did proceed to rely on the averments made in the supplementary affidavit filed on behalf of the State-appellant which has been quoted inextenso in the judgment under review. However, the response given by the applicant through the supplementary counter affidavit dated 31.08.2018 has been completely omitted from being considered. The relevant paragraph of the said supplementary affidavit which extends in several pages of the said affidavit denying the contents of the supplementary affidavit did call for a consideration and discussion before accepting the case set up by the State in the supplementary affidavit. We do not find any such consideration by the learned Division Bench nor do we find that there is any reference to the supplementary rejoinder affidavit which has been filed by the State.

On record, we find that the supplementary affidavit of the State contains an averment about the letter of the Senior Superintendent Central Jail, Fatehgarh dated 2nd June, 2007. We have perused the said letter and this has been sent in reply to the letter sent from the District Jail Gorakhpur. The facts as to how this information came to be placed before the authorities has been explained in detail in the supplementary rejoinder affidavit. The letter dated 2nd June, 2007 categorically records that the Establishment Register of the Central Jail, Fatehgarh does not contain any entry of any order dated 24.12.1986 pertaining to the alleged appointment of the applicant. It further indicates that the orders which are available are dated 23.12.1986 and 28.12.1986, but there is no such order in between of 24th December, 1986. Before we proceed to consider such errors as pointed out by the learned counsel, since the aforesaid document had been brought on record before the Court, it would be appropriate to satisfy ourselves with the entries in the said Establishment Register of the Central Jail in order to draw the curtain on this entire controversy.

Consequently, we direct the learned Standing Counsel to produce the Establishment Register of Central Jail, Fatehgarh containing the material pertaining to the relevant period as disclosed in the letter dated 2nd June, 2007. The register shall be produced on 12th November, 2018 by some responsible officer of the Central Jail, Fatehgarh.

A copy of the order to the learned Standing Counsel for immediate compliance.

The learned Standing Counsel is also directed to give complete information with regard to the criminal cases which have been instituted in this regard.

Order Date :- 25.10.2018

M. Arif/-S.Chaurasia/-