Net Ram vs Uoi & Ors.
2010 Latest Caselaw 2617 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   RA 206/2010 in W.P. (C.) No.3720/2001

%                          Date of Decision: 17.05.2010

Net Ram                                                   .... Petitioner
                          Through Mr. Arun Bhardwaj, Advocate

                                      Versus

UOI & Ors.                                              .... Respondents
                          Through Mr. Aditya Madan, Advocate
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 in             NO
      the Digest?


ANIL KUMAR, J.

*

RA No. 206/2010 & CM No. 6703/2010

The petitioner/applicant has sought a review of order dated 1st

February, 2010 passed in WP(C) No. 3720/2001 titled as Sh. Net Ram

Vs. Union of India, dismissing the writ petition filed by the petitioner

and upholding the order of the Tribunal dated 7th December, 2000

passed in OA 1602/1999 dismissing his application seeking setting

aside of the order of punishment dated 30th October, 1997 and the

orders passed by the Appellate Authority and the Revisional Authority.

The petitioner has also sought condonation of delay in filing the

application for review on the ground that he had applied for the certified

copy on 1st February, 2010, which was given to his counsel on 16th

February, 2010 and because of personal reason, he wanted to change

his counsel, however, he could get the copy of the impugned order in

the middle of March, 2010 and thereafter he contacted Mr. Arun

Bhardwaj, Advocate, who prepared the review application and filed the

same on 21st April, 2010. In the circumstances, it is contended that

there is sufficient cause for condonation of delay in filing the application

for review.

While dismissing the writ petition, this Court had perused the

testimony of PW-4 Sh. Nanhe Mal, who had categorically implicated the

petitioner and other police personnel and in the circumstances, had

held that the allegation of the petitioner that it was a case of no

evidence was not made out. This Court also perused and relied on the

relevant evidence against the petitioner and rejected the plea of the

petitioner and held that the testimony of complainant was sound and

reliable and could not be ignored. It has also been held that the

testimony of the witnesses could not be rejected on the surmises and

conjectures as has been raised by the petitioner and culpability of

petitioner in picking up the son of the complainant and his helper and

releasing them after accepting illegal consideration has been established

without any doubt. The false DD entry made at the instance of the

petitioner was also considered and it was held that it could not be relied

on to absolve the petitioner. This Court had also held that on the basis

of preponderance of probability, the inferences drawn by the

disciplinary authority and respondents were possible and the Court

would not substitute its inferences, in case different inferences can be

drawn by the Court, with the inferences drawn by the respondents. In

para 22 of the order, it is categorically stipulated that no other grounds

except which had been considered and discussed in the order dated 1st

February, 2010, were raised on behalf of the petitioner.

The petitioner/applicant has sought a review of the order dated

1st February, 2010 on the ground that there are mistakes and other

errors which are apparent on the face of the record and various material

and relevant submissions made by the counsel for the petitioner had

not been noticed.

The applicant has contended that the Court had erred in holding

that another affidavit given by Sh. Nanhe Mal was not accepted as in

his subsequent affidavit, he had stated that in the complaint he had

given the name of the petitioner as he was angry with the police officers

and therefore, the Court should have considered the later affidavit given

by PW-4 which supports the contentions of the petitioner. The

petitioner/applicant has raised more grounds for review than the

grounds raised by the petitioner in his writ petition, which was

dismissed by order dated 1st February, 2010.

Though at the time of argument on behalf of the petitioner, the

emphasis was that there is no evidence against the petitioner, however,

while seeking review the emphasis has been that on the basis of the

evidence, the inferences as drawn by the Disciplinary Authority and the

respondents cannot be drawn and in the circumstances the

petitioner/applicant seeks this Court to re-appreciate the entire

evidence and to arrive at different findings and conclusions and to

substitute the inferences drawn by the Disciplinary Authority and the

respondents.

The learned counsel for the petitioner/applicant has contended

that other affidavit given by Sh. Nanhe Mal absolving the petitioner by

stating that he had given the name of the petitioner in the complaint as

he was angry with him has not been considered by the Court while

dismissing his writ petition by order dated 1st February, 2010.

The plea of the petitioner is contrary to the grounds raised and

the allegation made in the review application as it has been urged in the

application for review that this Court has erred in holding to the effect

that another affidavit given by Sh. Nanhe Mal was not considered. If

the observation of this Court is that another affidavit given by Sh.

Nanhe Mal was not accepted, then it cannot be held that the effect of

other affidavit given by Sh. Nanhe Mal was not considered.

This is no more res integra that review proceedings have to

confine strictly to the ambit and scope of Order 47 of the Code of Civil

Procedure. Under the said provision, an order may be opened for

review, inter alia, if there is a mistake or error apparent on the face of

the record.

The learned counsel for the petitioner has not been able to make

out any such error apparent on the face of the record inasmuch as an

error which is not self evident and has to be inferred by a detailed

process of reasoning and consideration of the evidence and pleas and

contentions of the parties can hardly be said to be an error apparent on

the face of record justifying the Court to exercise its power of review. In

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

decision to be re-heard and corrected as a review petition has a limited

purpose and cannot be allowed to be an appeal in disguise. A review

cannot be sought merely for fresh hearing or argument or for correction

of an erroneous decision taken earlier. The power of review has to be

exercised only for correction of a patent error of law or fact, which stays

in the place without any elaborate argument being needed in

establishing it.

While dismissing the petition by order dated 1st February, 2010,

the testimonies of Sh. Nanhe Mal/complainant PW-4, his son Sh.

Subhash Chand, PW-5, Sh. Krishan Pal, helper of the complainant, PW-

6 and Sh. Vinod Kumar, another son of the complainant, PW-7 recorded

before the Disciplinary Authority, were considered. The testimonies of

the witnesses and complainant, recorded before the Inquiry Officer,

were perused as the counsel for the respondent had pointed out slight

variation regarding identification of two of the persons involved in the

matter. It was noticed that the petitioner had been contending that

they were not identified whereas, it transpired from the perusal that

though they had been identified as the persons present at the time of

incident but their names were not correctly identified. Thus, it was

inferred by the Court that it cannot be held that those persons were not

identified by the complainant. In the circumstances, this Court had

held that the case of the petitioner is not that the testimonies of any of

the witnesses had been rejected on surmises and conjectures but the

inferences had been drawn on the basis of preponderance of

probabilities. If another inference may be feasible or possible, that

would not lead to a conclusion that there are patent illegalities in the

order of the Disciplinary Authority and consequently, the writ petition,

after considering all the facts and circumstances and the grounds

raised before this Court, was dismissed. It was held that the evidence

as noticed and discussed was sufficient to demonstrate the culpability

of the petitioner. The learned counsel for the petitioner cannot contend

that there is no evidence against the petitioner and on the basis of re-

appreciation of evidence, which is not within the jurisdiction of this

Court, it cannot be held that the order dated 1st February, 2010 suffers

from such patent illegality or such errors which are apparent on the

face of the record.

In the entirety of facts and circumstances, therefore, there are no

such patent errors in the order impugned before us, which requires to

be corrected in exercise of jurisdiction of power of review by this Court.

Consequently, the application of the petitioner/applicant is without any

merit and it is liable to be dismissed. The application is, therefore,

dismissed. Application for condonation of delay is also disposed of.

However, the parties are left to bear their own costs.

ANIL KUMAR, J.

May 17, 2010                                    MOOL CHAND GARG, J.
'rs'