Calcutta High Court (Appellete Side)

Union Of India & Ors vs Manish Kumar & Ors on 4 February, 2022

Item-12                                     RVW 93 of 2021
          04-02-2022
 & 13                                        CAN 1 of 2021

                                       Union of India & Ors.
                                                Versus
                                        Manish Kumar & Ors.
  sg        Ct. 8
                                                  And

                                           RVW 110 of 2021
                                            CAN 1 of 2021
                                            CAN 2 of 2022

                                       Manish Kumar & Ors.
                                               Versus
                                        Union of India & Ors.


                                  (Through Video Conference)


                            Mr. Manish Kumar, Adv.
                                          ...appellant in person

                            Mr. Sandip Kumar Bhattacharyya, Adv.
                                           ...for the petitioners

Both the review applications are heard together and

disposed of by this common order.

The appellants/writ petitioners filed this application for

review containing as many as eleven grounds.

We distinctly remember that a similar matter was heard

when Mr. Sandip Kumar Bhattacharyya, learned Counsel

representing the applicants has pointed out that the order passed

by us in this matter is required to be reviewed on the ground that

the reconsideration for quantum of punishment should be

decided by the disciplinary authority and not by the appellate

authority in view of the relevant Rules. On that basis, we

observed that a review application may be filed.

However, it appears in the present review application

besides that many other grounds have been taken. Some of

which may not have been raised at all or argued and many of

them have been considered by us in our judgment.

The power to review of an Order passed under Article 226

of the Constitution is not curtailed and/or limited by any

provision of the Code of Civil Procedure or other statute but, at

the same time, we have to remind ourselves that under the garb

of review we should not permit rehearing of the entire appeal.

The review proceedings are not meant for rehearing of appeal.

The scope and ambit of Order 47 Rule 1, vis-à-vis, the

jurisdiction available to High Court, while seeking to review the

orders under Article 226 of the Constitution of India, came up

for consideration in the case of Aribam Tuleshwar Sharma v.

Aribam Pishak Sharmal in a decision reported in 1979(4) SCC

389: AIR 1979 SC 1047 in which the Hon'ble Supreme Court in

Paragraph 3 held as follows:

"It is true as observed by this Court in Shivdeo Singh v. State of Punjab reported in AIR 1963 SC 1909, there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of 11 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 limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the power 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 merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate Court to correct all manner of errors committed by the subordinate court."

The said decision was subsequently considered in Meera Bhanja Vs. Nirmala Kumari Choudhury case reported in 1995 (1) SCC 170 in which Their Lordships held, while entertaining a review only on the ground of error apparent on the face of the record, it has to be kept in mind that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be of two opinions. We may also usefully refer to the observations of the Hon'ble Supreme Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa 12 Tirumale reported in AIR 1960 SC 137 wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record:

"An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ."

It is also well-settled that mistake or error apparent on the

face of the record has to be self-evident and does not require a

process of reasoning and the same is clearly distinct from

erroneous decision as has been held in Parsion Devi & Ors. v.

Sumitri Devi & Ors. reported in 1997(8) SCC 715. In the said

decision, the Hon'ble Supreme Court was considering the phrase

"mistake or error apparent on the face of record". It was held, 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 47, Rule 1 CPC. In exercise of the

jurisdiction under Order 47, Rule 1 CPC it is not permissible for

an erroneous decision to be "reheard and corrected". There is a

clear distinction between an erroneous decision and an error

apparent on the face of the record. While the first can be 13

corrected by the higher forum, the latter can only be corrected by

exercise of the review jurisdiction. A review petition has a

limited purpose and cannot be allowed to be "an appeal in

disguise".

Although the said decision was rendered under Order 47

Rule 1 of the Code of Civil Procedure, it is certainly a guiding

principle even for considering an application under Article 226

of the Constitution of India.

In our judgment dated 24th June, 2021, we were

considering the propriety and legality of the order of punishment

initially passed by the disciplinary authority and enhanced by the

appellate authority. On consideration of the materials on record,

we were of the view that the learned Tribunal made out a third

case while granting liberty to the parties to consider whether

Manish Kumar had violated the terms and conditions while he

was still on probation when it was not in dispute that he was on

probation at the relevant point of time. We also expressed our

view that on the basis of the materials available to the

disciplinary authority and the appellate authority, it cannot be

said that the decision of dismissal was proper or that an

appropriate authority on the basis of the materials could have

arrived at the said conclusion.

In fact, the disciplinary authority did not impose the

punishment by way of dismissal.

In the memorandum of review, issues are sought to be

raised concerning the application of the writ petitioner under the

physically handicapped (other backward class) category medical

certificate.

We have taken a view on the said aspect of the matter

which the applicant may not accept but there was no error

apparent on the face of the record for which a review would be

maintainable. It is well-settled that the review is not an appeal in

disguise. The applicant do not contend that any new material had

been discovered, which in spite of due diligence, could not be

produced at the time of hearing and accordingly, the review is

required to be made on the discovery of such new materials.

All the points raised in the review petition were taken into

consideration while disposing of the writ petition arising out of

an order of the learned Administrative Tribunal. In fact, both the

parties were aggrieved by the said order for different reasons.

All these points which are now sought to be raised in the

review were argued before the Division Bench and considered.

In the instant review application, the petitioner/applicant,

in fact, seeks rehearing of the appeal, which is, is not

permissible.

The issues sought to be raised in the review application, in

our considered opinion, do not come within the purview of

Order 47 Rule 1 of the Code of Civil Procedure. Even it is

assumed that Order 47 Rule 1 would not strictly apply to an

application of review arising out of a writ proceeding we do not

find any 'sufficient reason' either to review the said order.

However, we have committed a mistake insofar as

directing the appellate authority to reconsider the quantum of

punishment after setting aside the order of both the authorities.

We agree with Mr. Bhattacharyya that there was an

oversight on our part and this direction needs to be reviewed

and/or modified. Accordingly, we modify the impugned order by

setting aside the order of the appellate authority.

Mr. Manish Kumar shall be entitled to file a further

representation against the order of the disciplinary authority in

addition to its earlier representation within three weeks from

date.

The appellate authority shall consider the matter afresh

without being influenced by its earlier order in the light of the

observation made by us in the order dated 24th June, 2021 within

a period of eight weeks from the date of communication of this

order by either of the party after giving a reasonable opportunity

of hearing to the petitioner only on the point of quantum of

punishment. The relevant observations are:

The Appellate Authority is directed to reconsider the quantum of punishment upon revisiting the order of punishment passed by the Disciplinary Authority and to pass any appropriate order in the light of our observations short of dismissal within a period of eight weeks from the date of

communication of this order by either parties after giving a reasonable opportunity of hearing to the petitioner only on the quantum of punishment." (Emphasis supplied)

Mr. Manish Kumar appears in person and submits that he

should have been reinstated in view of our order setting aside the

order of the appellate authority and the disciplinary authority in

view of the order passed by us today as modifying our dated 24th

June, 2021. The question of reinstatement, at this stage, does not

arise. The Appellate authority while reconsidering the quantum

of punishment as proposed by the disciplinary authority shall

pass suitable order with regard to the reinstatement and payment

of arrear dues in accordance with law.

Both the review applications being RVW 93 of 2021 and

RVW 110 of 2021 and the connected applications being, CAN 1

of 2021 (in RVW 93 of 2021) and the CAN 1 of 2021 along with