Manzoor Ahmed Khan vs Dtc
2010 Latest Caselaw 2329 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+     RA 177/2010 & CM No. 5567/2010 in WP(C ) No. 13142/2009

%                           Date of Decision: 03.05.2010

Manzoor Ahmed Khan                                 .... Petitioner
                Through Mr. Ashok Bhalla, Advocate

                                       Versus

DTC                                                      .... Respondent
                        Through Ms. Avnish Ahlawat and Ms. Latika
                                Choudhary, Advocates

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

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               NO
      in the Digest?




ANIL KUMAR, J.

*

These are the applications by the petitioner/applicant for

condonation of delay of 32 days in filing the review petition and for the

review of order dated 8th January, 2010 passed by this Court dismissing

the writ petition of the petitioner filed challenging the order dated 10th

August, 2009 passed by the Central Administrative Tribunal, Principal

Bench in TA No. 798/2009, dismissing his petition seeking directions to

the respondent to treat the petitioner as a pension optee and to

resettling his terminal dues and direction to pay interest @12% per

annum for delayed payment of his terminal dues.

The documents, which were relied on by the petitioner to claim

that he is an optee for the pension scheme, were the photocopies of

certain documents which were found to be incomplete and appeared to

be tampered and consequently, the Tribunal had not relied on those

documents.

The petitioner had also relied on the copies of the list which was

prepared by the respondents which was not accepted in view of the

original records which were produced by the respondent/Delhi

Transport Corporation and on the basis of original record produced by

the DTC, it could not be inferred that the petitioner was entitled for

pension and there were variation between the copies produced and the

original record produced by the respondent. The respondent had also

produced the record of Central Provident Fund Scheme and the

amounts contributed by the petitioner were found to be higher than the

amount that was statutorily payable and in the circumstances, it was

inferred that he was contributing to CPF voluntarily as he would not

have paid higher rate, had he opted for pension and consequently, the

writ petition was dismissed.

The petitioner/applicant has now sought review of the order

dismissing his writ petition contending that the veracity of documents

relied upon by the petitioner cannot be disputed. The original record

produced by the respondent is also challenged on the ground that the

similar list with different captions were also produced by the

respondent and the list of pension optee and non pension optee bears

reference in the letter dated 9th June, 2008 which was not disputed by

the respondent.

The review is also sought on the ground that the inference of the

Court that the original record and master copies of salary slips for

different periods produced by the respondent is not correct and not

based on certain record produced by the petitioner especially the salary

slip for the month of December, 1999, January, 2000 and February,

2000. Similarly, the observation of the Court that payment of more

amount towards CPF shows that the petitioner was not a co-optee for

pension scheme but was voluntarily contributing to CPF, is also

challenged on the basis of internal note dated 4th/6th September, 2006

and the receipt dated 24th June, 2004.

In the circumstances, on the basis of various documents, the

petitioner wants reconsideration of all the pleas and contentions and

review of order dated 8th January, 2010, dismissing the writ petition

filed by the petitioner against the order dated 10th August, 2009 in TA

789/2009 of Central Administrative Tribunal, Principal Bench.

From the allegations made in the application for review, it is

apparent that no error apparent in the order has been made out and

the emphasis of the petitioner/applicant is for fresh hearing or fresh

arguments or reconsideration of an allegedly erroneous view taken

earlier. A review can be sought merely for correction of patent error of

law or fact which stays in the place without any elaborate argument

being needed for establishing it. The petitioner wants to demonstrate

the alleged error on the basis of re-appreciation of all his documents

which were held to be not inspiring confidence and the reliance was

placed on the original record produced by the respondents. The

Supreme Court in Aribam Tuleshwar Sharma vs. Aribam Pishak

Sharma & Ors., AIR 1979 SC 1047, had held that there are limits to the

exercise of the power of review. It may be exercised where some

mistake or error apparent on the face of the record is found, but it may

not be exercised on the ground that the decision was erroneous on

merit. An error which is not self evident and has to be detected by a

process of reasoning can hardly be said to an error apparent on the face

of the record justifying the Court to exercise its power of Review under

Order 47 Rule 1 of the CPC.

This also cannot be disputed that in exercise of jurisdiction under

Order 47 Rule 1, it is not permissible for an erroneous decision to be

reheard and corrected as a review petition has a limited purpose and

cannot be allowed to be an appeal in disguise. Apparently, the demand

of the petitioner is for rehearing of the entire controversy, which cannot

be done in exercise of power of review and therefore, it has to be

inferred that there is no error apparent in the order dated 8th January,

2010, so as to review the same, as has been sought by the petitioner.

The application for condonation of delay also stipulates that some

original record was not traceable before filing the review petition and

the petitioner made vigorous efforts to locate the same and file the

review petition and therefore, the review petition could not be filed

within the limitation period. No particulars have been given as to when

the petitioner tried to locate the original records and why that original

record was not produced before the Tribunal or at the time of filing the

writ petition before the Court. What efforts were made by the petitioner

to locate the same has not been spelt out nor have any details been

given as to when these alleged documents were found. Even the writ

petition does not disclose that some of the documents could not be

located and the writ petition has been filed without prejudice to rights

and contentions of the petitioner, to rely on the said documents which

could not be allegedly located and would be relied on by the petitioner

as to when the documents would be located.

The inevitable inference in the facts and circumstances is that the

petitioner has failed to make out sufficient cause for condonation of

delay as contemplated in law and in the facts and circumstances. In the

circumstances, the delay in filing the review application can also be not

condoned. There are no grounds for review of order dated 8th January,

2010.

For the foregoing reasons, the review petition and the application

for condonation of delay in filing the review petition cannot be allowed

and they are dismissed accordingly. Parties are however, left to bear

their own costs.

ANIL KUMAR, J.

MAY 03, 2010                                     MOOL CHAND GARG, J.
'rs'