Calcutta High Court (Appellete Side)
Dilip Kumar Banerjee @ Dilip Banerjee vs Sate Of West Bengal & Ors on 23 September, 2024
23.09.2024
ct. 6/Sl. No.74
tkm MAT 725 of 2024
CAN 3 of 2024
Dilip Kumar Banerjee @ Dilip Banerjee
Vs
Sate of West Bengal & Ors.
Mr. Subir Sanyal, Sr. Advocate
Mr. Sutirtha Das
....for the appellant
Mr. Suman Ghosh
Mr. Gourav Das
....for the State
Dr. Chapales Bandyopadhyay
Ms. Anandamayee Dutta
Mir Anuruzzaman
....for the municipality
1.
Appellant has taken out an application for recalling
order dated 8.8.2024 whereby this court had upheld the
decision of the Hon'ble Single Judge giving liberty to him to
challenge the order of punishment dated 2.8.2022 from the
appellate forum.
2. Mr. Sanyal, learned senior counsel contends that he
did not have the opportunity to address the court as
adjournment sought for by his junior had been denied and
this court had proceeded with the hearing. As a result, this
court had overlooked the ground (X) in the memo of appeal
wherein it has been pleaded that the disciplinary authority
did not have jurisdiction to proceed with the enquiry after
superannuation of the employee. He contends though the
application is entitled 'recalling application' the same may
be treated as a review petition or this court may exercise
suomotu powers of review to correct an apparent mistake
on the face of the records.
3. Per contra, Dr. Bandyopadhyay submits the order
was passed on merits and after giving opportunity of
hearing to both the parties it cannot be said to have been
passed behind the back of a party and under these
circumstances the prayer for recall is not maintainable. With
regard to review powers he strenuously argues, the court
cannot usurp the jurisdiction of the appellate court under the
garb of review. Both the learned counsels have relied on
various authorities in support of their respective
submissions.
4. We have examined the impugned judgment.
Appellant was issued charge sheet on the day of his
superannuation i.e. 31.12.2015. He has assailed the charge
sheet in the writ petition and during its pendency, order of
punishment came to be passed. Hon'ble Single Judge
referring the appellate remedy dismissed the writ petition.
During hearing, learned senior counsel was absent and this
court while upholding the order of Hon'ble Single Judge, did
not consider the relevant service rules in light of ground (X)
of the memo of appeal wherein referring to various
Supreme Court decisions1 it had been urged that the
relevant service rules2 do not vest jurisdiction in the
Bhagirathi Jena vs. Board of Directors OSPC & Ors. (1999) 3 SCC 666;
UCO Bank vs. Rajinder Lal Cooper (2008) 5 SCC 257.
West Bengal Municipality Employees (CCA&C) Rules, 2010
disciplinary authority to continue the proceedings after
superannuation.
5. Dr. Bandyopadhyay would argue this is an error in
law amenable to appellate jurisdiction and the power of
review is foreclosed. In support of his submission, he relies
on Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma &
ors.3, Meera Bhanja (Smt) vs. Nirmala Kumari Choudhury
(Smt)4 and Parison Devi & Ors. Sumitri Devi & Ors.5 to
underscore the limited power of review under Order 47 Rule
1 of Code of Civil Procedure.
6. Though the Constitution does not specifically vest
the power of review upon the High Courts, in Shivdeo Singh
& Ors. Vs. State of Punjab & Ors.6, the Apex Court inter alia
held that the high courts being courts of plenary jurisdiction
are vested with review powers to prevent miscarriage of
justice or to connect grave and palpable errors committed
by it.
7. Jurisdiction of the High Courts under Article 226 is
plenary and may be invoked in case of breach of any legal
right in the public law domain. Existence of alternative
remedy is not a bar to maintainability of a writ petition but is
a self imposed restriction on entertainability. Restriction on
entertaining a writ petitioner in the face of existence of
(1979) 4 SCC 389
(1995) 1 SCC 170
(1997) 8 SCC 715
AIR 1963 SC 1909
alternative remedy is subject to well established exceptions,
namely:-
(i) breach of principle of natural justice,
(ii) patent lack of jurisdiction,
(iii) challenge to the vires of a statute/rule.
8. In the present case the appellant had canvassed
patent lack of jurisdiction in the disciplinary authority to
continue the proceeding. It was incumbent on the court to
consider this issue in light of the relevant service rules
governing the inquiry.
9. Mr. Sanyal rightly argues failure of the court to
consider patent lack of jurisdiction in the disciplinary
authority in light of the law declared by the Supreme Court
is a mistake or error apparent on the face of record.
10. We are unable to agree with Dr. Bandyopadhyay that
the mistake or error pointed out by the appellant would
require a long drawn process or analysis of facts. We
repeatedly asked him to place on record any provision in
the service rules namely West Bengal Municipality
Employees (CCA&C) Rules, 2010 which would empower
the disciplinary authority to continue the proceeding after
superannuation. Apart from referring to an enabling
provision namely rule 25 of the West Bengal Municipal
(Employee's Death-cum-Retirement Benefits) Rules, 2003
he was unable to place on record any provision in the
aforesaid service rule which would give a colour of
jurisdiction to the authority to proceed with the disciplinary
proceeding against a superannuated employee. In Board of
Control for Cricket in India & Anr. vs. Netaji Cricket Club &
Ors.7, the Apex Court while interpreting the power of review
under Order 47 Rule 1, inter alia, held the said power was
maintainable not only upon discovery of a new and
important piece of evidence or when there exists an error
apparent on the face of record but also when the same is
necessitated on account of mistake or any other sufficient
reason. Failure to consider the relevant statutory rules with
regard to jurisdiction of the disciplinary authority and the law
applicable in the field is a palpable mistake which goes to
the root of the matter and if not considered, would severely
prejudice the appellant. It is trite that an act of court should
not prejudice a party. In A.R Antulay vs. R.S. Nayak8, a 7
Judge Bench applied the maxim 'actus curiae neminem
gravabit' (an act of the Court shall prejudice no man) to
correct a palpable mistake in review jurisdiction. In M/s
Nothern India caterers India Limited vs. Lt. Governor of
Delhi,9 the Apex Court held the review jurisdiction while not
permitting rehearing would be attracted where the attention
of the Court was not drawn to a material mandatory
provision of law or where a grave omission or patent
mistake had crept in due to judicial fallibility. The Court held
as follows:-
"8. It is well-ettled (sic) that a party is not entitled to
seek a review of a judgment delivered by this Court
(2005) 4 SCC 741
(1998) 2 SCC 602
(1980) 2 SCC 167
merely for the purpose of a rehearing and a fresh
decision of the case. The normal principle is that a
judgment pronounced by the Court is final, and
departure from that principle is justified only when
circumstances of a substantial and compelling
character make it necessary to do so: Sajjan
Singh v. State of Rajasthan. For instance, if the
attention of the Court is not drawn to a material
statutory provision during the original hearing, the
Court will review its judgment: G.L. Gupta v. D.N.
Mehta. The Court may also reopen its judgment if a
manifest wrong has been done and it is necessary to
pass an order to do full and effective justice: O.N.
Mohindroo v. Distt. Judge, Delhi. Power to review its
judgments has been conferred on the Supreme Court
by Article 137 of the Constitution, and that power is
subject to the provisions of any law made by
Parliament or the rules made under Article 145. In a
civil proceeding, an application for review is
entertained only on a ground mentioned in Order 47
Rule 1 of the Code of Civil Procedure, and in a
criminal proceeding on the ground of an error
apparent on the face of the record (Order 40 Rule 1,
Supreme Court Rules, 1966). But whatever the
nature of the proceeding, it is beyond dispute that a
review proceeding cannot be equated with the
original hearing of the case, and the finality of the
judgment delivered by the Court will not be
reconsidered except "where a glaring omission or
patent mistake or like grave error has crept in earlier
by judicial fallibility": Sow Chandra Kante v. Sheikh
Habib."
11. Under such circumstances, we allow review of the
order dated 8.8.2024 and the appeal is restored to its
original file and number.
12. At this stage, Dr. Bandyopadhyay seeks
adjournment.
13. Let the matter appear under the heading 'For Order'
on 25.9.2024.
(Gaurang Kanth, J.) (Joymalya Bagchi, J.)
