Union Of India And Ors vs Shankar Kumar
2021 Latest Caselaw 11645 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION
                      REVIEW PETITION (ST.) NO. 13060 OF 2019
                                        IN
                         WRIT PETITION NO. 6806 OF 2014
1. Union of India
2. C.I.S.F. (DG),
   Address : Block No. 13, CGO's
   Complex, Lodhi Road,
    New Delhi-110 003.
3. B.G. Das (CMO-SG)
4. G.C. Pandhi (CMO-SG)
5. Mrs. S. Mehra (CMO-SG)
6. Sr. Commandant
    Mr. Sanjay Kumar Singh,
    Address : New Police Line,
    Building No. 12,
    Opp. SL Raheja Hospital,                                 .. Petitioners
    Mahim, Mumbai-400 016.                             (Original Respondents)
Versus
Shankar Kumar
S/o : Shree Bhim Prasad Mistry,
Lallu Pokharargarar Road
Post - Mungar, Dist- Mungar
Pin - 811 201 (Bihar)                                          ...Respondent

                                ***
Mr.D.A. Nalawade i/b M/s. Bharadwaj for petitioners in Review
Petition.
Mr. Vinnay Kumar Bajpai for respondent.
                               ****
               CORAM : K. K. TATED &
                          N.J. JAMADAR, JJ.

               DATE     : 24TH AUGUST 2021
PC :

1. The petitioners-original respondents seek review of the

judgment and order dated 4th March 2019 in Writ Petition No. 6806

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of 2014, passed by a Division Bench of this Court (Coram : B.R.

Gavai and N.J. Jamadar, JJ.), whereby the said writ petition came

to be allowed by quashing and setting aside the termination of the

respondent-original petitioner from the post of Constable with

C.I.S.F. vide order dated 26th February 2013, and directing his

reinstatement forthwith along with continuity in service and all

back-wages. (For the sake of convenience, the parties are

hereinafter referred to as 'employers' and 'employee')

2. The review petition arises in the backdrop of the following

facts :-

The employee came to be appointed as Constable/G.D. in

C.I.S.F. on 16th November 2019. While undergoing training, the

employee suffered a major fracture in right hip femur on 11 th

January 2010. The employee could not acquire the required SHAPE

and was, thus, found unft to undergo training. Eventually, the

employee came to be terminated by order dated 26 th February 2013

in exercise of power under Rule 25 of C.I.S.F. Rules, 2001. The

appeal preferred by the employee came to be rejected by order

dated 14th February 2014. Being aggrieved, the employee preferred

the petition, being Writ Petition No. 6808 of 2014.

3. In the course of hearing of the said writ petition, employers

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were called upon to make a statement as to whether the employee

could be accommodated on a non-feld job having sedentary duties.

4. In an additional affdavit in reply fled by Smt. Shipra

Srivastava, on behalf of the employers, in paragraph No.9, it was

averred as under :

"9 I say and submit that there is no separate quota or provision in CISF for recruitment of personnel for sedentary duties. There is no specifc duties which are declared as sedentary duties. In some Units, there are few duties having the nature of sedentary duty. All such duties are performed by the personnel in CISF, who have successfully completed the basic training. In the case of the petitioner, the basic issue is that he is not ft for successful completion of the period of probation and confrmation which is mandatory for further service in the Force."

5. In the context of the aforesaid development, the said writ

petition came up for consideration before the Division Bench on 4 th

March 2019. The Division Bench noted that though the employers

have admitted that there are certain duties, which are of sedentary

nature, the employee/petitioner cannot be appointed on the same

since his services were not confrmed.

6. During the course of hearing, the learned counsel for the

employers tendered the judgment of the Supreme Court in the case

of Kunal Singh Vs. The Union of India and another 1. Upon perusal

of the said judgment, the Court found that it fully supported the 1 (2003) 4 SCC 524

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case of the employee. The Court thus proceeded to allow the writ

petition having found, in the facts of the case, that the employee

was in a position to discharge other duties and in the affdavit of

Smt. Shipra Srivastava, fled on behalf of the employers, it was

admitted that there were certain duties which were of sedentary

nature. Adverting to the provisions of Section 47 of the Persons

with Disabilities (Equal Opportunities, Protection of Rights and

Full Participation) Act, 1995 ("the Act, 1995"), this Court directed

the reinstatement of the employee.

7. The employers are in review with the assertion that there is

an error apparent on the face of the record as the Court had not

taken into consideration the fact that under proviso to section 47 of

the Act, 1995, the Central Government, on 10 th September 2002,

has issued a Notifcation exempting all categories of posts of

"Combatant Personnel" only of the Central Para-Military Forces,

namely, CRPF, BSF, the ITBP, CISF and Assam Rifes from the

provisions of section 47 of the Act, 1995. In any event, since the

employee had not successfully completed the probationary period,

he could not have been continued in service.

8. It is further averred that the learned counsel, who

represented the employers, inadvertently tendered the judgment of

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the Supreme Court in the case of Kunal Singh Vs. The Union of

India and another (Supra) across the bar, which was not at all

intended to be cited in support of the case of the employers. In fact,

when the judgment was being dictated, the learned counsel had

tendered a copy of the aforesaid Notifcation dated 10 th September

2002 and a judgment of the Delhi High Court in the case of

Sandeep Singh Vs. Union of India, dated 22nd February 2012.

However, the same were not considered by the Court.

9. In the context of the aforesaid grounds put-forth to seek

review of the judgment and order, dated 4th March 2019, we have

heard Mr. Nalawade, the learned counsel for the review petitioner-

employers and Mr. Bajpai, the learned counsel for the respondent-

employee.

10. Mr. Nalawade, the learned counsel for the employers

vehemently submitted that the judgment under review is premised

on a patent error of applicability of section 47 of the Act, 1995. In

fact, in exercise of the powers conferred by the proviso to section 47

of the Act, 1995, the Central Government, having regard to the type

of work carried out by the employees, had exempted all categories

of posts of "Combatant Personnel" only in the Central Para-Military

Forces including "CISF", by Notifcation dated 10 th September 2002.

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Non-consideration thereof, according to Mr. Nalawade, is an error

apparent on the face of record warranting review of the said

judgment and order.

11. Since a submission was sought to be forcefully canvassed

that a copy of the said Notifcation was tendered before the Court,

we called upon the employers to apprise the Court as to whether

the said Notifcation was referred to and relied upon by the

employers at the time of hearing of the said writ petition.

12. Mr. Nalawade, the learned counsel for the employers, fairly

stated that the said Notifcation was not referred to in the

pleadings which were fled on behalf of the employers. Nor the

same formed part of the documents which were tendered before the

Court in support of the case of the employers.

13. Indisputably, the employers fled multiple affdavits in reply.

First affdavit in reply was fled by Mr.Sanjay Kumar on 6 th

February 2015. Second affdavit was fled by Smt. Shipra

Srivastava on 6th April 2016. An additional affdavit came to be fled

by Smt. Shipra Srivastava on 19th September 2018, paragraph No.9

of which is extracted above. In none of these affdavits, the

employers adverted to the Notifcation dated 10 th September 2002,

exempting all categories of posts in CISF from the application of the

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provisions of the said section 47 of the Act, 1995.

14. The second limb of submission on behalf of the employers

that the judgment in the case of Kunal Singh (Supra) was not to be

relied upon by the employeers, as it evidently supported the case of

the employee, in our view, does not carry the matter any further. It

could not be disputed that the judgment in the said case was

tendered across the bar by the learned counsel for the employers.

May be, it was tendered due to inadvertence. However, in the

absence of material to demonstrate that the copy of the Notifcation

dated 10th September 2002 was tendered before the Court, we fnd

it rather diffcult to accede to the submission on behalf of the

employers that the said Notifcation was brought to the notice of

the Court and yet the judgment sought to be reviewed was passed

without considering the said Notifcation.

15. The facts that the employers had ample opportunity and,

evidently, availed the said opportunity and fled three affdavits in

reply and in none of the affdavits the Notifcation dated 10 th

September 2002 was referred to, dissuades us from acceding to the

submission on behalf of the employers that the said Notifcation

was indeed brought to the notice of the Court.

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16. Even otherwise, we are also of the view that had that been

the case, the employers ought to have approached the same Bench

without loss of time and ought not have waited for full one year to

seek review of the said judgment and order.

17. The endeavour of the employers to seek review on the ground

of non-consideration of the said Notifcation dated 10th September

2002 is required to be appreciated in the light of the fact that the

Court had adverted to the existence of duties which were of

sedentary nature. As indicated in Paragraph No.9 of the affdavit of

Smt.Shipra Srivastava, extracted above, the stand of the employers

was that all such duties were performed by the personnel in CISF,

who have successfully completed the basic training. It implied that

the question was not of non-existence of duties, which were of

sedentary nature, which could be performed by the employee, but

the non-completion of the basic training by the employee on

account of the injury sustained by him while undergoing the

training. Adverting to this incongruity in the stand of the

employers, this Court found it to be totally unjustifable. This

Court thus proceeded to set aside the termination and direct the

reinstatement in service of the employee.

18. In the peculiar facts of the case, where the existence of duties

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which are of sedentary nature, was clearly admitted and the

employee could be legitimately accommodated to perform such

duties, in our view, no case for review of the judgment and order

dated 4th March 2019 is made out.

19. Hence, the following order :

ORDER

The review petition stands dismissed.

[ N.J. JAMADAR, J. ]                                           [ K.K. TATED, J.]




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