Delhi High Court

Sukhbir Singh vs Union Of India on 30 May, 2011

Author: Anil Kumar

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 RA No.329/2011 in WP(C) No.5432/2007

%                         Date of Decision: 30.05.2011

Sukhbir Singh                                             .... Petitioner

                      Through Mr.Rajinder Nischal, Advocate
                                       Versus

Union of India.                                          .... Respondent

                      Through Ms.Manjusha Wadhwa, Advocate


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.      Whether reporters of Local papers                 YES
        may be allowed to see the judgment?
2.      To be referred to the reporter or not?            NO
3.      Whether the judgment should be                    NO
        reported in the Digest?

ANIL KUMAR, J.

1. The petitioner has sought review of the order dated 26th April,

2011 passed in the above noted writ petition against the order dated

31st October, 2006 passed by the Central Administrative Tribunal,

Principal Bench, New Delhi in OA No.1054 of 2005, which was filed

by the petitioner against the penalty order dated 17th June, 2003 and

the order of the reviewing authority dated 25/26th September, 2003

and the order dated 20th September, 2004 imposing the penalty of

reduction to a lower scale in the time scale of pay for a period of

three years.

2. The applicant contended that one of his pleas was that a copy

of the advice tendered by the UPSC, which was relied on by the

Disciplinary Authority, while passing the penalty order was not

supplied to the petitioner in advance and was only supplied along

with the penalty order, which had caused prejudice to the petitioner

as the petitioner was denied a reasonable opportunity to represent

against the advice of the UPSC and thus, the respondent had acted

against the principles of natural justice.

3. The applicant had contended that the plea regarding non-

supply of the copy of the UPSC advice before passing the order of the

penalty was repelled by the Tribunal and this Court by relying on the

judgment of the Supreme Court in the matter of UOI & Anr. v.

T.V.Patel, (2007) 4 SCC 785. In this case the Supreme Court had

held that it is not necessary to supply a copy of the advice tendered

by the UPSC to the delinquent employee before passing the order of

penalty and that the employee is not prejudiced on account of it.

4. The applicant has contended that the Supreme Court in its

latest judgment reported as the „UOI & Anr. v. S.K.Kapoor‟, 2011 (2)

AISLJ 63, had held that if the authorities do consult the UPSC and

rely on the report of the commission for taking disciplinary action

then the principles of natural justice requires that a copy of the

report must be supplied in advance to the employee concerned so

that he may have an opportunity of rebuttal. It is also contended that

the judgment of the T.V.Patel (supra) was discussed and

distinguished by the Supreme Court as well.

5. The applicant has contended that his counsel was not aware of

the recently published judgment in the All Indian Service Law

Journal, and as such, the said judgment was not canvassed at the

time of the argument, nor was it relied on. The decision of this Court

dated 26th April, 2011 is now sought to be reviewed on the basis of

the judgment of the Supreme Court in UOI & Anr. v. S.K.Kapoor

(supra).

6. This Court while considering the plea of the

petitioner/applicant for non-supply of the UPSC advice had held as

under:-

23. As far as the plea of non supply of the UPSC advise, the learned counsel for the petitioner in view of

the decision of the Supreme Court in the case of Union of India & Anr. Vs T.V.Patel, (2007) 4 SCC 785 did not press this plea any further. The Supreme Court had held that before the imposition of penalties/punishment it is not necessary to supply the copy of advice tendered by the Public Service Commission to delinquent employee in view of Article 322 & 320 (3) (c) read with rules 15 (3) and 32 of Central Civil Services (Classification, Control and Appeal) Rules, 1965. It was further held that consultation with Public Service Commission on all disciplinary matters is not mandatory. It was specifically held that absence of consultation or any irregularity in consultation process or in furnishing copy of advice tendered by the Public Service Commission to the delinquent does not afford the government servant a cause of action in a Court of Law. In paragraph 25 at page 792, the Supreme Court had held:

25. In view of the law settled by the Constitution Bench of this Court in Srivastava, 1958 SCR 533 we hold that the provisions of Article 320(3)(c) of the Constitution of India are not mandatory and they do not confer any rights on the public servant so that the absence of consultation or any irregularity in consultation process or furnishing a copy of the advice tendered by UPSC, if any, does not afford the delinquent government servant a cause of action in a court of law.

24. The petitioner in the facts and circumstances, therefore, cannot contend that he has been prejudiced on account of non-supply of the copy of advice tendered by the UPSC to the Disciplinary Authority or that the principles of natural justice has been violated in such a manner that the order of punishment imposed on the petitioner will be impacted. The petitioner has been awarded a minor penalty and considering the facts and circumstances and the lapse on his part, it also cannot be held that the penalty imposed is disproportionate, since the petitioner did not get promotion for a period of

three years when his pay was reduced to a lower scale in the time scale of pay. In any case it has also not been shown that during three years when his pay was reduced to a lower scale in the time scale, he had become entitled for promotion and he was not promoted on account of it.

7. This is true that a division bench of the Supreme Court in the

case of S.K.Kapoor (supra) had held that the bench which had given

the decision in the matter of T.V.Patel (supra) had not noted the

decision in S.N.Narula v. Union of India & Others, Civil Appeal No.

642 of 2004 decided on 30th January, 2004, which was prior to the

decision in T.V.Patel‟s case(supra) and thus, if a subsequent co-

ordinate bench of equal strength wants to take a different view, it

could only refer the matter to a larger bench otherwise, the prior

decision of the co-ordinate bench is binding on the subsequent

bench of the equal strength. It was further held that since the

decision in S.N.Narula‟s case(supra) was not noticed in T.V.Patel‟s

case (supra), the later decision is a judgment per incuriam and the

decision in S.N.Narula‟s case(supra) was binding on the subsequent

bench of equal strength and, therefore, it could not take a contrary

view. The Supreme Court had also noted that although Article 322 &

320 (3) (c) is not mandatory, if the authorities do consult and rely on

the report of the commission for taking disciplinary action, then the

principles of natural justice requires that a copy of the report must

be supplied in advance to the employee concerned so that he may

have an opportunity of rebuttal.

8. The important question that needs to be determined is whether

this can be a ground of review in the facts and circumstances. Order

47 C.P.C. deals with the procedure for review of an order or a

judgment given by a Court of Law. Order 47 Rule 1 C.P.C. specifically

deals with the filing of an application for review of a judgment, decree

or order and it reads as follows:

"Order 47 Rule 1: Application for review of judgment :- (1) Any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes,

and who from the discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by

some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case of which he applies for the review.

Explanation:-The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. (Inserted by Act No. 104 of 1976 w.e.f. 1-2.1977)"

9. In the case of Haridas Das v. Smt.Usha Rani Banik & Ors. :

2006 (4) SCC 78, the Apex Court held:

13. In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it "may make such order thereon as it thinks fit". The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 which states that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the

order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection.

10. Similarly in the case of State of M.P. and Ors. Vs. Steel

Authority of India Ltd. (2002)10SCC144, the Apex Court held that

there can be no review of a judgment on the basis of subsequent

judgment even assuming that latter judgment is relevant on the

question. In this case a review of the Supreme Court‟s decision in the

matter of Steel Authority of India Ltd. v. State of M.P. (1999) 4 SCC

76 was sought on the basis of a subsequent judgment of the Court in

the matter of ECIL v. Secy. Revenue Deptt, Govt. of A.P.(1999) 4 SCC

458, which was declined by the Apex Court by relying on the

Explanation of Order 47 Rule 1.

11. The reason for applying the provisions of Order 47 Rule 1 has

also been discussed in the matter of Venkoba (dead) by L.Rs. Vs. The

Assistant Commissioner and Land Acquisition Officer, 2010(1)

KCCR738, which is as under:

"23. But these principles apart, even on the principle that a litigation between the parties is required to attain finality after it has gone through the permitted tiers of Judicial hierarchy, is a very salient principle and that should always be respected and it is in recognition of this principle, explanation is added to Rule 1 of Order XLVII.

24. It is by now a very well accepted legal principle that judgments, orders and awards which have attained finality by going through the hierarchy of different judicial tiers, cannot be reopened or altered only because after such attainment of finality, there is a change in law. If a subsequent change in law can reopen concluded matters, there is no finality to litigation and it is against public interest.

25. Dispute resolution system is only to bring about a satisfactory solution to the problems of litigants and not to keep the problem in current perpetually. Otherwise, it is only ushering in discontent and unrest in the society and virtually is at cross purposes with the object of law itself which is to have an orderly manner of governance in the society and to have peace and order in the society and to provide protection to the weak and oppressed."

12. Dealing with the scope of the power of review under Order 47,

Rule 1, C.P.C., the Supreme Court in Meera Bhakja v. Nirmala

Kumari Choudhury, MANU/SC/0098/1995 observed as follows:

"The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, C.P.C. The review petition has to be entertained only on the ground of error apparent on the fact of the record and not on any other ground. An error apparent on the face of record must be such as error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. The limitation of powers of Court under Order 47, Rule 1, C.P.C. is similar to the jurisdiction available to the High Court while seeking review of the orders under Article 226."

13. For the foregoing reasons, the applicant is not entitled for the

review of order dated 26th April, 2011 on the ground that a division

bench of the Supreme Court has held that the judgment rendered by

and relied on at the time of disposal of the writ petition is per

incuriam, as they had not taken into consideration a prior judgment

of the Supreme Court by another division bench. In the

circumstances under Order 47 of the Code of Civil Procedure, the

applicant is not entitled for the review of the order dated 26th April,

2011 on the ground that another bench of the Supreme Court has

rendered a judgment which supports the pleas and contentions of

the petitioner, which judgment was neither relied on before this

bench nor was it canvassed in any manner. The application for