Dr.Radha Dubey vs Government Of National Capital ...
2010 Latest Caselaw 1551 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+            CM No.2149/2010, CM 2148/2010 and R.A 68 of 2010
                                    in
                          WP(C) No. 13988/2009

%                              Date of Decision: 19.03.2010

Dr.Radha Dubey                                                .... Petitioner
                              Through Mr.Shree Prakash Sharma, Advocate

                                          Versus

Government of National Capital Territory of Delhi &   .... Respondent
Ors.
                    Through Mr.Rajiv Nanda and Mr.Zeyaul Haque,
                               Advocates for respondent Nos.1 to 3.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI

1.      Whether reporters of Local papers may be                 YES
        allowed to see the judgment?

2.      To be referred to the reporter or not?                   NO
3.      Whether the judgment should be reported in               NO
        the Digest?


ANIL KUMAR, J.

CM No.2149/2010

This is an application seeking condonation of 18 days delay in

filing the review application by the petitioner.

For the reasons stated in the application, it is allowed and the

delay is condoned. Application stands disposed off.

R.A no. 68 of 2010 & CM No.2148/2010

The petitioner seeks review of order dated 21st December, 2009

dismissing her petition wherein she had assailed the order dated

13.11.2009 passed by the Central Administrative Tribunal, Principal

Bench, New Delhi in O.A. No.2745/2008 dismissing her original

application. The petitioner has also sought directions to the

respondents to produce her leave account.

The petitioner was working as medical officer under the

Government NCT of Delhi and on account of remaining absent from

duty for considerable period her services were terminated by letter

dated 23.-27.11.2007, which was challenged by the petitioner by filing a

Original Application No.2745/2009, titled as 'Dr. Radha Dubey vs.

Government of NCT of Delhi and another', which was dismissed by the

Tribunal by order dated 13.11.2009.

The order of the Tribunal dismissing the petitioner's application

was challenged in the writ petition being W.P.(C) No.13988/2009, filed

before this Court which was also dismissed by order dated 21.12.2009,

holding inter-alia, that the services of the petitioner had not been

regularized, and merely because the petitioner was being paid salary

admissible to the regular employees, on the basis of 'equal pay for equal

work', it could not be held that the petitioner who was appointed on

contract basis had been regularized. The plea of the petitioner that the

termination of her service was very harsh was also rejected by holding

that alleged compelling circumstances of the petitioner which kept her

away from her employment, could not be a reason for the petitioner to

remain absent indefinitely. She had been sanctioned leave only for 20

days. Though the leave was extended for some time thereafter, however,

since the petitioner kept seeking further leave, the same was denied and

she was required to join back her duty, which was disregarded by the

petitioner and even the warnings issued to her were ignored.

The petitioner has sought review of the order dated 21.12.2009

contending that the order dated 21.12.2009 proceeds on the basis that

the balance leave to the petitioner's credit had got exhausted which,

according to the petitioner is not correct and, is an error apparent on

the face of the record.

The learned counsel for the petitioner has also contended that

some of the relevant rules were not considered by this Court regarding

grant of leave, and consequently, the order dated 21.12.2009 is liable to

be reviewed.

This Court while dismissing the writ petition of the petitioner had

specifically held that a medical organization cannot be efficiently run in

public interest, if the staff and employees appointed to render services

remain on indefinite leave, as absence of medical officer will result in

crumbling of the entire system and the personal difficulty of such officer

cannot be accepted beyond a particular point. It was also held that the

respondents could not be faulted for not extending the initially

sanctioned leave for 20 days to about 19 months which was the period

for which the petitioner did not report for work which resulted into the

termination order being passed against her.

It is well settled that the review proceedings are confined within

the ambit and scope of Order 47 Rule 1 of the Civil Procedure of Code,

1908 which contemplates that an order may be open to review only if

there is a mistake or an error in the impugned order which is apparent

on the face of the record. This cannot be disputed that an error which is

not self evident and has to be detected by a process of reasoning, can

hardly be set up as an error apparent on the face of the record. In

exercise of review jurisdiction, it is not permissible for an erroneous

decision to be re-heard on merits and corrected. A review petition has a

limited purpose and the same cannot be allowed to be an appeal in

disguise. A review does not entitle the applicant for a fresh hearing or

arguments or correction of an erroneous view taken earlier. The Courts

have held in various pronouncements that power of review can be

exercised only for correction of a patent error of law and facts which are

apparent in the face without any elaborate argument being needed

establishing it.

The learned counsel for the petitioner has tried to re-argue the

whole matter by contending that the observation made in the order that

the balance leave to her credit has got exhausted is not correct, and

therefore, the petition could not have been dismissed. By doing so she

is in fact asking for re-appreciation of the entire pleas and contentions.

Even if the entire leave to her credit was not exhausted, the petitioner

could not remain absent for almost 19 months after getting leave

sanctioned only for 20 days.

Though the learned counsel for the petitioner has contended that

she was entitled for 5 years leave, however, the point for consideration

is whether she remained absent without authorized leave or not. In any

case this plea cannot be taken into consideration this being a review

petition and not an appeal. This has not been disputed that she

remained absent for 19 months, and in the circumstances, it cannot be

held that there is any patent error in the order of this Court.

In the circumstances, we do not find any ground to review the

order dated 21.12.2009 and the review application is therefore,

dismissed. Since we have dismissed the review application after hearing

the learned counsel for the petitioner, the application for directions

being CM No.2148/2010 does not survive and the same is disposed of.

ANIL KUMAR, J.

MARCH 19, 2010                                VIPIN SANGHI, J.
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