Si Sobhan Baraik vs Govt. Of Nct Of Delhi & Ors.
2011 Latest Caselaw 1289 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P(C) No.170/2010

%                      Date of Decision: 04.03.2011

SI Sobhan Baraik                                           ...... Petitioner

                   Through     Mr.Rajpal Singh, Advocate

                                 Versus

Govt. of NCT of Delhi & Ors.                            ...... Respondents

                   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.13274/2010 & CM No.13273/2010

These are the applications by the petitioner/applicant seeking

condonation of 217 days delay in refiling the review petition and

condonation of 104 days delay in filing the review petition.

The applicant has contended that after the review application

was filed by the applicant certain objections were raised by the Registry.

The petition for review was taken back on 19th August, 2010 and after

removing the objections the petition was refiled on 10th September,

2010 and, therefore, there is 14 days delay in refiling. However, in the

prayer the petitioner/applicant has sought condonation of delay of 217

days. No reason has been disclosed for condonation of delay. The

applicant has not given any details as to why the petition with objection

was not taken back within time permitted by the Registry. The applicant

has not disclosed as to when he was informed of the objection and for

what period he was outside as alleged by him.

The applicant has also sought condonation of 104 days delay in

filing the review petition on the ground that after the order dated 13th

January, 2010 was passed dismissing his writ petition being W.P(C)

No.170/2010 filed against the order dated 18th February, 2009 passed

by Central Administrative Tribunal, Principal Bench dismissing

petitioner‟s original application being O.A No.2066/2006 titled SI

Sobhan Baraik v. Government of NCT of Delhi & Ors., he had applied

for the certified copy and spent 20 days time in obtaining the certified

copy.

The applicant has further contended that he had also applied for

certified copies of the writ petition No.1465/2008 as well as statement

of PW.5 in FIR No.257/2004 and 6 days and 8 days respectively were

taken for supplying the certified copies. In the facts and circumstances

the applicant contended that 20 days were taken for obtaining the

certified copy of order dated 13th January, 2010 and 14 days were taken

for obtaining the certified copy of writ petition No.1465/2008 and FIR

No.257/2004 and, therefore, after spending 34 days the review petition

was filed after 104 days as review petition could not be filed earlier as it

was beyond the control of the petitioner/applicant.

However, no reasons have been given as to why the petition for

review could not be filed after obtaining the certified copies. There is no

ground for excluding the time taken by the petitioner/applicant of 6

days and 8 days in obtaining the certified copies of writ petition

No.1465/2008 and statement of PW.5 in FIR No.257/2004. No cogent

or sufficient reason is either being disclosed or has been made out

seeking condonation of delay.

In the circumstances, the applications are without any merit and

the delay of 217 days in refiling and delay of 104 days in filing the

review petition cannot be condoned in the facts and circumstances. The

applications are, therefore, dismissed.

RA No.410/2010

This is a petition by the petitioner seeking review of order dated

13th January, 2010 dismissing the writ petition being W.P.(C)

No.170/2010 titled SI Sobhan Baraik v. Government of NCT of Delhi &

Ors. which was filed against the order dated 18th February, 2009 of the

Central Administrative Tribunal, Principal Bench in O.A No.2066/2006

titled SI Sobhan Baraik v. Government of NCT of Delhi & Ors.

dismissing his original application against the punishment order dated

3rd April, 2006 and the appellate order dated 11th August, 2006.

Though the applications of the petitioner for condonation of delay

in filing the review petition and refiling the review petition have been

dismissed, however, the merits raised by the petitioner/applicant are

also considered.

The review is sought by the applicant primarily on the ground

that the disciplinary authority failed to appreciate that the mandatory

rule 15(2) of Delhi Police (Punishment and Appeal) Rules, 1980 had

been violated in as much as the approval of the Additional

Commissioner of Police had not been obtained for conducting the

regular departmental enquiry. According to the applicant, Tribunal

being the Court of first instance ought to have framed and decided the

question of law about the vires of Rule 15(2) vis-à-vis Rule 23(b) of Delhi

Police (Punishment and Appeal) Rules, 1980 framed under Section 147

of Delhi Police Act, 1978 read with Section 23 of Delhi Police Act, 1978.

Perusal of the original application filed by the petitioner however

reveals that the grounds sought to be taken now for review of order

dated 13th January, 2010 were not taken before the Tribunal in O.A

No.2066/2006 titled SI Sobhan Baraik v. Government of NCT of Delhi &

Ors. Since the plea regarding non compliance of Rule 15(2) of Delhi

Police (Punishment and Appeal) Rules, 1980 was not taken before the

Central Administrative Tribunal, Principal Bench, the petitioner cannot

be allowed to take the ground before this Court in seeking review of

order of dismissal of his writ petition.

Even in the writ petition being W.P(C) No.170/2010 titled SI

Sobhan Baraik v. Government of NCT of Delhi & Ors., the petitioner

had not taken the ground that the order of the Tribunal dated 18th

February, 2009 and the order of punishment by the disciplinary

authority dated 3rd April, 2006 and the appellate authority dated 11th

August, 2006 are bad on account of violation of rule 15 (2) of Delhi

Police (Punishment and Appeal) Rules, 1980. The said ground was not

taken in the writ petition nor was canvassed before this Court.

Perusal of the writ petition reveals that no such ground was taken

by the petitioner/applicant. Consequently, the petitioner cannot be

allowed to seek review of order dated 13th January, 2010 on the

grounds which were not taken in the writ petition. It is no more res

integra that discovery of new evidence or material by itself is not

sufficient to entitle a party for review of a judgment. A review is

permissible on the ground of discovery of new evidence only when such

an evidence is relevant and of such a character that if it had been

produced earlier it might possibly have altered the judgment. However,

it must be established that the applicant had acted with due diligence

and that the existence of the evidence, which he has now discovered,

was not within his knowledge when the order was passed. If it is found

that the petitioner has not acted with due diligence then it is not open

to the Court to admit evidence on the ground of sufficient cause. The

party seeking a review should prove strictly the diligence he claims to

have exercised. In a review application a party cannot be allowed to

introduce fresh documents merely to supplement evidence which might

possibly have had some effect on the result.

So far as the power of review available to a court is concerned, in

MANU/SC/0705/1999 Ajit Kumar Rath v. State of Orissa and Ors it

was held that this power is not an absolute power and is hedged by the

restriction indicated in Order 47 of the Code of Civil Procedure, 1908

("CPC"). Such power can be exercised on the application of a person, on

the discovery of new and important matter or the evidence which, after

the exercise of due diligence, was not within his knowledge or could not

be reproduced by him at the time when the order was made. 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. 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.

Similarly 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 the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or 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 merits."

The learned counsel for the petitioner/applicant has contended

that the ground regarding violation of mandatory rule of 15(2) of Delhi

Police (Punishment and Appeal) Rules, 1980 pertains to jurisdiction of

the disciplinary authority and so should be allowed to be taken. The

plea of the applicant cannot be accepted as it is also a matter of fact

that whether the permission of the Additional Commissioner of Police

was granted or not. Since the ground was not taken at any stage, the

permission of Additional Commissioner of Police was not produced and

in the circumstances the applicant cannot be permitted to contend that

this being a matter of jurisdiction should be allowed to be taken now

seeking review of the order dated 13th January, 2010. No contention

has been made in the petition that the petitioner/applicant was not

aware of it despite due diligence on his part.

In AIR 1996 Madras 411 Shanmugam Servai versus P.

Periyakaruppan Servai the Court laid down the legal requirements of

review under CPC which is as under:-

"..............I am firm in saying that such discovery of new evidence must contain (i) the relevancy of the same; and (ii) be such of a character that, if it had been given in the suit, it might possibly have altered the judgment. It must atleast be such as presumably to be believed and if so, it would be conclusive. The discovery afore-stated is not only a discovery of new and important materials or evidence; that would entitle a party to apply for, review, but the discovery of any new material or evidence and important matter must be one which was not within the knowledge of the party then the decree was made the person seeking a review should prove strictly the diligence as clearly spelt out in the above rule which he claims to have exercised and also that the matter or evidence which he wishes to have access to is, if not absolutely conclusive, at any rate, nearly conclusive. What has become more imperative is that a mere and bare assertion in the affidavit that the party could not trace the documents earlier or he was not in possession not in custody of said documents is not a ground at all to seek legal aid provided under the above rule. It is not the proper function of a review application to supplement the evidence or to make it serve the purpose of a merely introducing evidence which might possibly have had same effect upon the result."

In the totality of facts and circumstances, this Court finds no

ground to review the order dated 13th January, 2010 dismissing the writ

petition of the petitioner/applicant against the order of the Tribunal

dated 18th February, 2009 in O.A No.2066/2006 dismissing the original

application which was filed by the petitioner/applicant challenging the

punishment order dated 3rd April, 2006 of the disciplinary authority

and the order dated 11th August, 2006 of the appellate authority. In the

circumstances, even on merits the petitioner/applicant is not entitled

for any relief and the review petition is without any merit and it is,

therefore, dismissed.

ANIL KUMAR, J.

March 04, 2011                            MOOL CHAND GARG, J.
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