3 The Assistant Commissioner vs Unknown
2023 Latest Caselaw 4837 Mad

Citation : 2023 Latest Caselaw 4837 Mad
Judgement Date : 26 April, 2023

Madras High Court

3 The Assistant Commissioner vs Unknown on 26 April, 2023

Rev. Appl. No.222 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 26.04.2023

CORAM:

THE HON'BLE MR. JUSTICE S. VAIDYANATHAN

and

THE HON'BLE MR. JUSTICE A.D. JAGADISH CHANDIRA

Review Application No.222 of 2022

1 The Commissioner
Greater Chennai City Municipal Corporation
Ripon Buildings
Chennai 600 003

2 The Regional Deputy Commissioner (Central)
Chennai City Municipal Corporation
Shenoy Nagar
Chennai 600 030

3 The Assistant Commissioner
Greater Chennai City Municipal Corporation
Ripon Buildings
Chennai 600 003 Petitioners
v
J.K. Balaji
Assistant (Under Suspension)
Zone - VII (Now Zone X)
Greater Chennai Municipal Corporation
Chennai 600 024 Respondent

Petition filed under Order 447 Rule 1 read with Section 114 of the Civil
Procedure Code to review the order dated 18.07.2022 passed in W.A. No.1640 of
2022.
https://www.mhc.tn.gov.in/judis
Rev. Appl. No.222 of 2022

For petitioners Mr. S. Silambanan
Additional Advocate General
assisted Ms. K. Aswini Devi

For respondent Mr. S.N. Ravichandran

ORDER

This petition has been filed seeking to review the order dated 18.07.2022

passed in W.A. No.1640 of 2022.

2 At the outset, it would be pertinent to extract paragraph 6 of the

aforesaid order, which is sought to be reviewed in this petition:

"6. The narrow issue in this writ appeal is whether the Disciplinary Authority, by order dated 27.01.2020, has disagreed with the findings of the Inquiry Officer by giving reasons or not. The relevant portion of the said proceedings is extracted hereunder:

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                                    Mtz';fisa[k;               Mizah;            mth;fshy;
                                    Th;ej; ha;t[     bra;ag;gl;ljpy;     jdpah;      K:tY}h;
                                    ,uhkhkph;jk;             mk;ikahh;              epidt[
                                    jpUkzepjpa[jtp          jpl;lj;jpd;    fPH:;     jpUkjp/
                                    my;nghd;!h         vd;gtUf;F        tH';f      ntz;oa

fhnrhiyapid rk;ge;jg;gl;lthplk; nehpilahf tH';fhky; rl;lg;gphpt[ cjtpahsh; jpU/Mh;/ gh!;fh; vd;gthplk; mspj;J mth; ,ilj;jufh;

                                    K:yk;     ifa{l;lhf       bgw;Wf;bfhz;L        fhnrhiy
                                    tH';f          fhuzkhf           ,Ue;jJ           kw;Wk;
                                    tpjpKiwfSf;F           khwhf        ntW         Jiwapy;
                                    gzpg[hpa[k; cjtpahsh; mth;fsplk; mspj;jJ

bjhlh;ghf jdpah; kPJ Rkj;jg;gl;l Fw;wr;rhl;L 1 kw;Wk; 2f;F tprhuiz mYtyh; mspj;j https://www.mhc.tn.gov.in/judis mwpf;ifapy; cld;ghL ,y;yhj fhuzj;jhy;

(Disagree with the report of the Inquiry Officer), jpU/b$/nf/ ghyh$[p TLjy; tpsf;fj;jpid Rev. Appl. No.222 of 2022

,f;Fwpg;ghiz fpilf;fg;bgw;w 7 ehl;fSf;Fs;

mspf;FkhW nfl;Lf;bfhs;sg;gLfpwJ/ jtWk; gl;rj;jpy; ,Uf;Fk; Mtz';fs; kw;Wk;

tpjpfspd;go ,Wjp Miz tH';f eltof;if nkw;bfhs;sg;gLk; vd bjhptpf;fg;gLfpwJ/@

A reading of the aforesaid extract would make it very clear that it is only narration of facts and there is no reason given for disagreeing with the findings of the Inquiry Officer. Though the learned Additional Advocate General submitted that even if the order dated 27.01.2020 is going to be interfered with, the authority concerned may be given an opportunity to give detailed reasons for disagreement and thereafter, call for an explanation from the employee, we are not here, on the administrative side, to give more opportunities to the appellants herein to correct the mistake committed by them. We reiterate that the extract mentioned supra is only narration of fcts and there are no reasons stated by the Disciplinary Authority for his disagreement with the findings of the Inquiry Officer. The Hon'ble Apex Court in the judgment rendered in Punjab National Bank V.Kunj Behari Mishra reported in 1998 7 SCC 84, has held thus:

“19. ................whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accpet the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.”

3 Though it has been brought to our notice by Mr. S. Silambanan,

learned Additional Advocate General that a Division Bench of this Court, in

which, one of us (S.V.N.,J.) was a member, in The Commissioner, Greater https://www.mhc.tn.gov.in/judis

Chennai Corporation, Ripon Buildings, Chennai vs. C. Balaji Babu and Rev. Appl. No.222 of 2022

another1, has passed an order holding that the matter will have to be remanded to

the disciplinary authority for fresh enquiry, we are not inclined to accept the said

submission, for, the said judgment may not be applicable to the facts of this case,

in the light of the observations made in paragraph 6 extracted in paragraph 2,

supra . Be it noted, once the enquiry is held to be bad, the matter will have to be

remanded to the disciplinary authority for fresh consideration, who, in turn, after

complying with all the requirements under law and after getting a report from the

Enquiry Officer, can, if required, impose a punishment based on the evidence that

may be available. In the instant case, the report of the Enquiry Officer was not

faulted with and there was no reason given for disagreeing with the findings of the

Enquiry Officer. If such an opportunity is given, it will open a Pandora's box in

all matters in service jurisprudence where the disciplinary authority will be

allowed to commit a mistake and drag the employees to the Court, make them

litigate for years on end and seek an order from the Court that the matter may be

remanded. That apart, a Division Bench of this Court, in which, one of us

(S.V.N., J.) was a member, in M. Uthayasekar vs. The TNPSC and 3 others2,

following a catena of judgments of the Supreme Court, has held that a review

petition is not maintainable. The relevant paragraph from the said judgment reads

thus:

"14. At this state, this Court wants to emphasise that the well settled legal position is that 'review' erases the order/judgment from an inception. In review, a Court of Law cannot rehear the matter de novo. Moreover, re-appraisal https://www.mhc.tn.gov.in/judis

2 Review Application (MD) No.93 of 2021 decided on 31.01.2022 Rev. Appl. No.222 of 2022

of the whole gamut of materials on record for unearthing an error/errors would amount to an exercise of appellate jurisdiction, which is legally impermissible. There is no second opinion of a prime fact that the 'power of review' is a creation of statute. A mere fact that divergent/different views on the same subject are quite plausible/possible, it is not a ground to review the earlier order passed by a Court of law. To put it precisely, the 'power of review' is not to be exercised for substituting the earlier views arrived at by the concerned competent Court. An erroneous decision can be subject to an appeal to a higher forum. But, a review is impermissible on the ground that the Court of law proceeded on a wrong proposition of law. Generally speaking, an error apparent on the face of the record means that an error must be quite obvious and self evident and in short, it does require an elaborate argument to be established, as per the decision of the Hon'ble Supreme Court in Thungabhadra Industries Ltd. vs. the Government of A.P. reported in AIR 1964 1372."