Indra Bahadur Pradhan vs The State Of Assam And 2 Ors
2022 Latest Caselaw 4010 Gua

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GAHC010084872022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Review.Pet./148/2022

            INDRA BAHADUR PRADHAN
            S/O LT. HARI BAHADUR PRADHAN, VILL- MISHIMIATI AMGURI, P.O.
            RANGAGORAH, P.S. DERGAON, DIST. GOLAGHAT, ASSAM.



            VERSUS

            THE STATE OF ASSAM AND 2 ORS.
            REP. BY THE COMMISSIONER and SECY, TO THE GOVT. OF ASSAM, HOME
            DEPARTMENT, DISPUR, GHY-6.

            2:THE DIRECTOR GENERAL
             CIVIL
             DEFENCE and COMMANDANT GENERAL OF HOME GUARDS
            ASSAM
             BELTOLA
             GHY-28.

            3:THE COMMANDANT

             ASSAM SPECIAL RESERVE FORCE BATTALION-II
             KARAGAON
             KARBI-ANGLONG
             ASSAM

Advocate for the Petitioner   : MR S K SARKAR

Advocate for the Respondent : GA, ASSAM
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                                     BEFORE
                    HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                    ORDER

Date : 19-10-2022

Heard Mr. S.K. Sarkar, learned counsel for the petitioner and Mr. H. Sharma, learned Additional Senior Government Advocate, Assam for all the respondents.

2. The instant review application has been preferred by the petitioner seeking review of the judgment and order dated 03.06.2010 passed in the writ petition, W.P.[C] no. 3291/2006.

3. The petitioner was a Nayak in the Assam Special Reserve Force Battalion. A show-cause notice dated 18.12.1998 along with a Statement of Allegation was served upon the petitioner with the allegation that the petitioner left the Battalion Headquarters Armoury on 28.09.1998 without leave or permission and accordingly, committed gross negligence of duty. Allegation was to the effect that the petitioner was found absent from duty w.e.f. 28.09.1998 till the date of the first show-cause notice dated 18.12.1998 without authorization. The petitioner was accordingly charged with gross indiscipline and misconduct. In the show-cause notice, nine instances of previous such unauthorized absence were also reflected. In the reply to the show-cause notice, the petitioner was found to have admitted that he left the Battalion Headquarters in a sudden rush of blood after he was denied leave. As the explanation was found unsatisfactory, an enquiry was initiated wherein the Assistant Commandant of the Assam Special Reserve Force Battalion was appointed as the Enquiry Officer. The Enquiry Officer submitted an enquiry report stating that the charges were found to be established. The disciplinary authority thereafter furnished a copy of the Page No.# 3/6

enquiry report along with the second show-cause notice dated 08.06.1999 to the petitioner asking him to give his response on the proposed punishment. As no reply was furnished by the petitioner to the second show-cause notice, the disciplinary authority i.e. the Commandant, Assam Special Reserve Force Battalion-II, Karagaon, Assam imposed penalty of dismissal from service upon the petitioner.

4. The order of penalty inflicted upon the petitioner was challenged by the petitioner in the writ petition, W.P.[C] no. 3291/2006. During the course of hearing of the writ petition, the records of the disciplinary proceedings were produced before the Court. Upon perusal of the relevant records of the disciplinary proceeding, the Court found that the delinquent was afforded a fair opportunity to defend the charges in the enquiry. It was observed that the defence versions projected by the delinquent had also been considered by the Enquiry Officer. It was also found that the copy of the enquiry report was duly furnished to the delinquent along with the second show-cause notice dated 08.06.1999 and the delinquent had acknowledged the receipt of the same. In such circumstances, the Court recorded that the conclusion reached by the Enquiry Officer about the delinquent leaving the Battalion Headquarters without any permission and remaining absent without authourisation for a long time was found to be rightly established. Considering the earlier history of similar misconducts of unauthorized absence on as many as 9 occasions and having regard to the fact that the delinquent was a member of a disciplined force, the penalty on the ground of absence without authorization by the delinquent i.e. the petitioner as a member of a disciplined force was not found to be disproportionate. Another factor which was considered by the Court was the factor of delay. The delinquent was dismissed from service on 24.08.1999 and Page No.# 4/6

the petitioner preferred the writ petition, W.P.[C] no. 3291/2006 belatedly in the year 2006. The decision of the appellate authority that the representation/appeal dated 11.11.2003 was time-barred was not interfered by the Court holding that such belated approach indicate that the petitioner was not vigilant about pursuing his remedy and therefore, the petitioner did not deserve any equitable consideration. With such observations, the writ petition, W.P.[C] no. 3291/2006 was dismissed by the judgment and order dated 03.06.2010.

5. After dismissal of the writ petition by the judgment and order dated 03.06.2010, the petitioner has approached this Court by this review petition on 30.04.2022.

6. It is found that this petition was preferred after a period of 3602 days from the date of the judgment and order dated 03.06.2010. There is no explanation found in the present petition explaining the inordinate delay which had occurred in preferring the present petition against the judgment and order dated 03.06.2010.

7. It is settled position of law that there is nothing in Article 226 of the Constitution to preclude a 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 to 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 Page No.# 5/6

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 as that would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate Court to correct all manner of errors committed by the subordinate Court. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.

8. When by keeping the above parameters of review under purview, the grounds urged in the present petition, which has been styled as a review petition, are looked at, it is noticed that the petitioner has contended that he filed a representation before the Director General of Civil Defence and Commandant General of Homeguards, Assam, Beltola against the order of penalty passed by the disciplinary authority, the said representation was neither disposed of by the said authority nor the said authority passed any order of re- instatement till filing of the writ petition. The petitioner has further contended that the petitioner was inflicted the penalty on the basis of charges which were never disclosed to the petitioner. From the judgment and order dated 03.06.2020, it is evident that the petitioner as the delinquent was afforded a fair opportunity to defend the charges in the enquiry and the defence versions projected by the petitioner as the delinquent were also considered by the enquiry officer. In so far as the ground urged in this petition in the garb of review that the representation filed by the petitioner before the Director General of Civil Defence and Commandant General of Homeguards, Assam against the order of penalty passed by the disciplinary authority is concerned, this Court is of the considered view that the same cannot be a ground for review. It needs reiteration with the jurisdiction and scope of review cannot be equated with an Page No.# 6/6

appeal and a review petition can be entertained only if there is an error apparent on the face of the record. A mere repetition of old and overruled argument cannot be made in a review petition. As no omission or patent mistake or grave error is found in the judgment and order dated 03.06.2010, sought to be reviewed, this review petition is found bereft of any merits.

9. In view of the same, this petition filed in the garb of review stands dismissed.

JUDGE

Comparing Assistant