Delhi High Court
Rohit Kumar vs Union Of India And Ors. on 3 October, 2016
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:3rd October, 2016
+ CM NO.35197/2016 & REV. PET. 431/2016 in
WP(C) No. 6953/2016
ROHIT KUMAR
..... Appellant
Through: Ms. Minal Sehgal,
Advocate.
versus
UNION OF INDIA AND ORS. ..... Respondent
Through: Mr.Rajesh Kumar, Mr.
Atul Krishna, Ms. Santwana,
Advocates.
CORAM:
HON'BLE MS. JUSTICE INDIRA BANERJEE
HON'BLE MR. JUSTICE V. KAMESWAR RAO
ORDER
INDIRA BANERJEE , J (ORAL)
CM No.35197/2016 (condonation of 2 day's delay)
This is an application for condonation of two days' delay in
filing the Review petition. The delay in filing the Review Petition is
condoned.
The application is disposed of accordingly.
REV.PET.431/2016
1. This application filed by the writ petitioner, is for review of an
order dated 9th August, 2016, passed by this Bench, dismissing
the writ petition filed by the writ petitioner, challenging a final
order No.3261 dated 8th May, 2014 imposing on the petitioner,
a constable of the Central Industrial Security Force (CISF), the
penalty of "Removal from Service".
2. The penalty was imposed after issuing a charge-sheet and
conducting an enquiry into the following charges:
"Article of Charge-I
That No.084480048 Constable/GD Rohit Kumar
of CISF 10th Reserve Battalion Arakkonam, while
deployed on IS duty at CISF RGIA, Hyderabad
passed urine in Wash basin of Wash Room of "A"
Coy barracks at around 2145 hrs on 25.01.2014
and quarreled with No.093240099 Constable
Ashok Kumar of CISF RGIA Hyderabad in the
"A" Coy barracks. The above act on the part of
the said Constable/GD amounts to gross
indiscipline, misconduct and unbecoming member
of an Armed Forces of the Union.
Article of Charge-II
That No.084480048 Constable/GD Rohit Kumar
of CISF 10th Reserve Battalion Arakkonam, while
deployed on IS duty at CISF RGIA, Hyderabad
created nuisance in the Unit Lines in the
intervening night of 25/26.01.2014 under influence
of alcohol and used filthy language against all
Senior Officers and Organisation. The above act
on the part of the said Constable/GD amounts to
gross indiscipline, misconduct and unbecoming
member of an Armed Forces of the Union.
Article of Charge-III
That No.084480048 Constable/GD Rohit Kumar
of CISF 10th Reserve Battalion Arakkonam failed
to improve his conduct inspite of awarding him 02
minor penalties and one major penalty in his
service career in CISF."
3. The petitioner replied to the charge-sheet, which was dated 23rd
April, 2014, after which, disciplinary proceedings were
conducted. The Enquiry Officer found the petitioner guilty of
all the three charges.
4. The petitioner filed an appeal before the Appellate Authority
and then a revisional application before the Revisional
Authority, both of which were rejected, after which, the writ
petitioner filed the writ petition, which has been dismissed by
the judgment and order under review.
5. The writ petition has been dismissed with the following
observations/findings:-
"There is apparently no violation of the principles
of natural justice. No irregularity or infirmity has
been alleged with regard to the procedure followed
by the respondent-authorities.
It is submitted by learned counsel appearing
for the petitioner that this Court ought to take a
lenient view considering the age of the petitioner,
who is a married man and only of 28 years of age
with 30 years of service pending.
In writ proceedings this Court does not
exercise appellate power over enquiry findings
and/or disciplinary action. The Court cannot
overlook the fact that punishment has earlier been
imposed four times. Three times the penalty has
been minor and once a major penalty has been
imposed. We do not find any such infirmity in the
impugned action or in the procedure adopted
which calls for interference of this Court in
exercise of its extraordinary jurisdiction under
Article 226/227 of the Constitution of India."
6. A Judgment and order dismissing a writ petition assumes
finality and may only be reviewed on grounds akin and/or
analogous to the grounds for review of a judgment as
contained in order XLVII Rule 1 of the Code of Civil
Procedure 1908.
7. An application may be made for review of a judgment and
order in a writ petition, which is not appealable, or an
appealable judgment and order from which no appeal has been
preferred, upon discovery of new materials, not within the
knowledge of the petitioner, notwithstanding exercise of due
diligence, and to which the attention of the Court could not be
drawn at the time when the judgment and/or order was
delivered.
8. An application may be made for review of a judgment and
order in a writ petition, when there is some mistake or error
apparent on the face of the record or for any other sufficient
reason. However, in the garb of hearing an application for
review the Court cannot rehear a case and reconsider its
decision on merits. The expression, 'any other sufficient
reason' is to be read to mean that the Court may review its
judgment and order to correct a gross and palpable error
committed by it, or to prevent gross miscarriage of justice to
any party.
9. A review is by no means an appeal in disguise, whereby an
erroneous decision may be reheard but corrected. The scope of
review is restricted to rectification of a patent error, but for
which the decision would have been otherwise.
10. In this application no grounds have been made out for review of
the judgment and order dated 9th August, 2016, dismissing the
writ petition. The writ petitioner is trying to re-agitate the
same issues in the garb of an application for review. The writ
petitioner has not been able to point out any patent or obvious
error in the order under review. In an application for review,
the Court cannot look into and reanalyze evidence, which was
already there before the Court, when the judgment and order
under review was passed.
11. The contention of the writ petitioner, that the third charge
constituted double jeopardy is also thoroughly misconceived.
Even assuming that there is any infirmity in the third charge,
the first and second charges, which have been held to be
proved, constitute sufficient grounds for removal of the
petitioner from service.
12. For the reasons discussed above, the Review application is
dismissed.
INDIRA BANERJEE, J
V. KAMESWAR RAO, J
October 03, 2016 /n
