Uoi & Ors. vs Jai Kanwar Kaushik
2011 Latest Caselaw 1153 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                 W.P.(C) No.359/2010

%                           Date of Decision: 25.02.2011

UOI & Ors.                                                       ...... Petitioners

                       Through          Mr.Ajay Vikram Singh, Advocate

                                          Versus

Jai Kanwar Kaushik                                             ...... Respondent

                      Through           Nemo


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.

* CM No. 2179-2180/2011

These are the applications by the petitioner/applicant seeking

exemption from filing certified copies of the Lower Court Record and the

certified copies of the translation of the annexures.

Allowed subject to just exceptions.

CM No. 2181/2011 & 2182/2011 & RA No. 70/2011

1. These are the applications for condonation of delay in filing and

refilling the review application and for Review of order dated 20th

January, 2010 dismissing the writ petition of the petitioners against the

order dated 12th August, 2009 passed in OA No. 2123/2004 titled as

Jai Kanwar Kaushik v. UOI and Ors. The petitioner/applicant has

sought condonation of delay of 124 days in re-filing the application for

review and for condonation of delay of 194 days in filing the review

application.

2. By the order dated 20th January, 2010, the writ petition of the

petitioner against the order dated 12th August, 2009 passed in OA

2123/2004, was dismissed whereby the Tribunal had directed the

petitioners to disburse pay and allowances to the respondent for the

period on which he was not on duty was passed and the plea of the

petitioners that the respondent was avoiding to join his duty on the post

of Electric Fitter (Power), though, the said post did not bring him in

contact with Diesel oil, grease, mobile oil, chromic water and petrol etc.

was declined by the Tribunal.

3. The petitioner/applicant has filed one application seeking

condonation of 194 days of delay in filing the review application alleging

that the impugned order was examined and the department after

analyzing the facts came to the conclusion that a review petition has to

be filed against the impugned order dated 20th January, 2010. However,

no facts have been disclosed as to when the order was examined and

analyzed by the department and when it was concluded to file the

review application and who had considered and examined the order and

why the concerned official or officials could not consider and analyze

the order within the period of limitation. The averments made in the

application are utterly vague and do not constitute sufficient cause as

contemplated under law and in the facts and circumstances of the case.

The allegations made in the application seeking condonation of 194

days delay are as under:-

"2. That the impugned order was passed on 20.01.10. The impugned order was examined and the department after analyzing the facts and circumstances of the case came to conclusion that a Review Petition can be filed against the impugned order.

3. That thereafter the recommendation for filing Review were sent to the Competent Authority which took some time in according final sanction to file a Review Petition. The process took some time because the officers of the Railways have been busy due to the Common Wealth Games. So the file movement remained slow.

4. That thereafter the counsel was assigned the case. The case was then drafted, the annexures were typed and then the draft was sent back to the department for finalizing and then for signing of the affidavit."

4. Similarly, in the application seeking condonation of delay of 124

days in refilling the review application, no facts have been disclosed

which would constitute sufficient cause. The application for

condonation of 124 days delay in refilling the review application

completely lacks in material particulars. The averments made in the

application seeking condonation of 124 days delay in refilling are as

under:-

"2. That the present Review Petition was filed on 1/9/10 whereupon the Registry of this Hon‟ble Court put some

objections and matter was taken back from the registry. There were objections for dim annexures, application for condonation of delay etc. The annexures were sent for typing, the application for condonation of delay was drafted and in the mean time the time for refilling the petition had elapsed and hence the present application for delay in refilling has been drafted and then sent for signing of the accompanying affidavit to the department. Hence it took some time in refilling the present petition.

3. That during this a delay of 124 days has been caused in refilling the present Review Petition."

5. Though, while considering the plea of condonation of delay, the

sufficient cause should be considered with pragmatism in justice

oriented approach rather than a technical defection of sufficient cause

explaining everyday‟s delay. However, some cogent reason has to be

explained and facts are to be disclosed so that facts disclosed may

constitute sufficient cause.

6. Perusal of the applications of the applicant for condonation of

delay, it is apparent that no facts have been disclosed except the bald

allegation that the order was examined and the department analyzed

the facts and came to conclusion that a review petition is to be filed and

for seeking condonation of delay in re-filing, nothing has been disclosed

which would constitute sufficient cause as contemplated under law and

in the facts and circumstances of the case.

7. In the circumstances, the learned counsel for the petitioner has

failed to make out sufficient cause for condonation of delay of 124 days

in re-filing the review application and for condonation of delay of 194

days in filing the review application. The applications are therefore,

without any merit and are liable to be dismissed. Therefore, the

applications for condonation of delay of 194 days in filing the review

application and condonation of 124 days delay in refilling the review

application are dismissed.

8. Even the review application is without any merit as the review

has been sought on the ground that the work of Electric Fitter (Power) is

to change bulbs, switches, fan etc. which does not involve use of diesel

oil, grease, mobile oil, chromic water or petrol etc. and therefore the

respondent could not have refused the work which was offered to him

The review applicant has contended that Court has ignored the fact that

the Chief Chemical Superintendent sought wrong advise from Sr.

DME/DSL as to whether a job of Tech. (Elect.), Group III comes with

contact with diesel oil, grease, mobile oil, chromic water or petrol etc. in

place of seeking advice for Electric Fitter (Power) as the scope of

Technical (Elect.) Group-III is entirely different from the scope of work of

Electric Fitter (Power). The review of the order dated 20th January,

2010 is also sought on the ground that the refusal given by the

respondent in his own letters dated 31st August, 2001, 19th October,

2001 and 31st August, 2001 written to the Department, have been

completely ignored. According to the petitioners, the jobs offered to the

respondent were refused by him being heavy jobs and he could not do

the duties involved in them and therefore, he wanted to escape from the

heavy work to which he was not entitled for. In the circumstances, the

plea raised is that the Electric Fitter (Power) and Tech. (Elect.) are

different and that the respondent has not gone for re-examination on

8th January, 2003 and remained illegally absent.

9. The facts and circumstances as has been alleged by the

petitioners were agitated before this Court and were repelled. The

petitioners are raising the same grounds and wants to have rehearing of

the entire matter. It is no more res integra that a review cannot be

sought merely for fresh hearing or arguments or correction of an

erroneous view taken earlier. The power of review can be exercised only

for correction of a patent error of law or fact which stays in the face

without any elaborate argument being needed for establishing it. This

power can also be exercised on account of some mistake or error

apparent on the face of the record or for any other sufficient reason. In

Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC

1047 the Supreme Court held that :-

"It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of 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 be exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of evidence which, after the exercise of due diligence was not within the knowledge of the person 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 merit."

10. This Court, while dismissing the writ petition of the petitioner had

categorically noted that by order dated 12th August, 2009, Tribunal had

allowed the original application being O.A No. 2123/2004 allowing pay

and allowances of the intervening period to the respondent during the

period he was stopped by the petitioners till such time the respondent

was adjusted in an alternate job. The Tribunal had also come to the

conclusion that despite medical advice not to put the respondent on a

post where he could come in contact with diesel oil, grease, mobile oil,

chromic water or petrol etc., he was not offered the appropriate

alternative appointment till such time he was appointed as halwai and

therefore, the petitioners should be held liable and responsible for

keeping the respondent away from the job of which could not be

performed by him.

11. While dismissing the writ petition of the petitioners by order

dated 20th January, 2010, this Court also relied on petitioners‟ Circular

bearing No. RBE 213/2000 providing for absorption of medically de-

categorized staff in alternative employment and further contemplating

that such an employee can be kept on special super-anomaly post till

suitable post is available. Reliance was also placed on the provision

contained under Section 47 of the Persons with Disability (Equal

Opportunities Protection of Rights and Full Participation) Act, 1995.

12. The plea of the petitioners that the Tribunal had completely

ignored that the respondent was provided with alternative job was

categorically repelled after considering all the pleas and contentions

which has again been raised by the petitioners now. The Tribunal and

this Court had also noticed that the medical records had reflected that

the post which was offered to the respondent was not such a post,

where he was fit to perform his duties in view of the stipulations

contained in Medical Certificate bearing No.-54 MED/Mb/J&K/1999

issued by Chief Staff Surgeon.

13. In view of these categorical consideration and observation, the

petitioners cannot contend that the order dated 20th January, 2010 has

an error apparent on it or new facts have come to the notice of the

petitioners which were not known to them despite due diligence on their

part which would entail review of order of dismissal of the petitioners

writ petition against the order of the Tribunal.

14. The pleas on the basis of which the review is sought are not new

nor based on new material and were before the Tribunal and before this

Court. In the garb of review, the petitioner/applicant is not entitled for

fresh hearing or arguments for correction of an erroneous view, if any,

taken earlier. There is no patent error of law or fact in the facts and

circumstances. In any case, an error which is not self evident and has

to be detected by a process of reasoning can hardly said to be an error

apparent on the face of the record justifying the Court to exercise its

power of review under Order 47 R. 1 of CPC. In exercise of the

jurisdiction under Order-47 R.1 of CPC, it is not permissible for an

erroneous decision, if any, to be re-heard and corrected. A review

petition has a limited purpose and cannot be allowed to be appeal in

disguise.

15. Consequently, there are no sufficient grounds to condone the

delay of 124 days in re-filing the application for review and for

condoning the delay of 194 days in filing the review application. Even

on merits there are no grounds to review the order dated 20th January,

2010 dismissing the writ petition of the petitioners against the order of

the Central Administrative Tribunal, Principal Bench. All the

applications are therefore dismissed.

Since the prayer for review has been declined, the application for

stay being CM No. 2178/2011 does not survive and the application for

stay is therefore, dismissed as infructuous.

ANIL KUMAR, J.

February 25, 2011. MOOL CHAND GARG, J.

„rs‟