Randhir Singh Panwar vs Cantonment Board Dehradun And ...
2021 Latest Caselaw 5305 UK

        HIGH COURT OF UTTARAKHAND AT NAINITAL
                 Review Application No. 19911 of 2021
                                 With
                  Writ Petition (S/S) No.4349 of 2018

Randhir Singh Panwar                                         .....Petitioner

                                     Versus
Cantonment Board Dehradun and others                         .... Respondents
Present :-
Mr. U.K. Uniyal, Senior Advocate, assisted by Mr. Sandeep Kothari, Advocate, for the
petitioner / review applicant.
Mr. Bhagwat Mehra, Advocate, for the respondent.

                                                Dated: 23rd December, 2021
                              ORDER

Hon'ble Sharad Kumar Sharma, J.

The petitioner to the present Writ Petition, had put a challenge to the orders dated 7th October, 2016, which was as passed by respondent No. 2, whereby, the services of the petitioner were dismissed, as well as the consequential order dated 8th June, 2017, which was passed by respondent No. 3, affirming the order of dismissal, as well as the order of 28th September, 2018, whereby, the Appeal preferred by the petitioner against the order of 7th October, 2016, was rejected.

2. After the exchange of the pleadings, the Writ Petition was argued finally before the Coordinate Bench of this Court on 24th December, 2020. The arguments were heard and judgment was reserved and the parties were left at liberty to file their respective written submissions within a period of four days. The order of 24th December, 2020, is extracted hereunder :-

"WPSS No. 4349 of 2018 Hon'ble Lok Pal Singh, J.

Mr. U.K. Uniyal, Sr. Advocate assisted by Mr. Sandeep Kothari, Advocate for the petitioner.

Mr. Bhagwat Mehra, Advocate for respondent nos. 1 to 3. Arguments heard.

Judgement reserved.

Parties are at liberty to file their written submissions within four days."

3. Ultimately, the Coordinate Bench of this Court by judgment dated 25th January, 2021, had dismissed the Writ Petition and it is thereafter, the petitioner had preferred the Review Petition only on 12.03.2021, which is being considered by this Court.

4. Heard the learned counsel for the parties at length, on several dates too, even today.

5. The solitary argument to the Review Application, as it has been raised by the learned Senior Counsel, Mr. U.K. Uniyal, is to the effect, that if the judgment itself is taken into consideration, in fact, all the facets, which were pleaded by the petitioner in the written submission were not taken into consideration by the learned Coordinate Bench, while rendering the Judgment of 25th January, 2021, and hence, the decision itself suffers from an apparent error, and which calls for an interference by invoking the provisions contained under Order 47 Rule 1 of reviewing the Judgment of 25th January, 2021.

6. The learned Senior Counsel has submitted that, even if the provisions under the CPC, which though in principal has been made applicable, governing the proceedings under Article 226 of the Constitution of India, if that is taken into consideration, the provisions of Order 18 Rule 2, becomes essential for consideration by this Court for the reason being that according to his interpretation given to Sub- rule (3-A) of Rule 2 of Order 18, which is extracted hereunder, once the written submission is permitted to be brought on record by leave of the Court, as would be apparent from the order passed by the

Coordinate Bench on 24th December, 2020, in that eventuality, it becomes mandatory for the Court, that the Court shall and is bound to consider the arguments raised in the written submissions, while making a final deliberation on the case, which has been argued before it. Sub-rule (3-A) of Rule 2 of Order 18 reads as under :-

"(3-A) Any party may address oral arguments in a case, and shall, before he concludes the oral arguments, if any, submit if the Court so permits concisely and under distinct headings written arguments in support of his case to the Court and such written arguments, shall form part of the record."

7. To the Review Petition, the respondents were granted time to file their objection. The learned Counsel for the respondents had submitted, that since the he is not having the copy of the written statement / submission, submitted by the petitioner in the Writ petition, he is not in a position to object, as to what bearing the written submission, would have on the Judgment dated 25th January, 2021, which is being sought to be reviewed.

8. During the course of the hearing of this Review Petition, when the review was considered on the previous date, a request was made to Mr. Sandeep Kothari, learned Counsel for the review applicant/petitioner, to supply the copy of the written argument to the learned counsel for the respondents.

9. In compliance thereto, the copy of the written submission was supplied to the learned counsel for the respondents and he has filed his objection to the review petition.

10. The learned Counsel for the respondents, had argued the matter in response to the arguments extended by the learned counsel for the review applicant in the light of the provisions, which has been sought to harp upon, i.e Sub-rule (3-A) of Rule 2 of Order 18, where the counsel for the review applicant mandated, that after submission

of the written argument, a duty is casted upon the Court that it ought to have considered the written submissions because of the use of the language by the Legislature, which in its strict terms spelt out, that such written argument shall form "part of the record". The inference drawn from the said term provided under Sub-rule (3-A), was sought to be argued by the counsel for the applicant that once the written submission forms to be part of the record, it is necessarily required to be considered by the Court, which was lacking in the judgment rendered by the Coordinate Bench on 25th January, 2021, and hence, according to the argument extended by the review applicant, it is it an error apparent on record, requiring to attract Order 47 Rule 1 of the CPC to be read with Section 114 of the Code.

11. On the other hand, the argument which has been submitted by the learned counsel for the respondents in opposition to the Review Application is twofold, firstly, that the provisions contained under Sub-rule (3-A) of Rule 2 of Order 18 cannot be isolatedly attracted for sustaining a review application, in the absence of considering the implications of Sub-rule (3-B) of Rule 2 of Order 18, which is extracted hereunder :-

"(3-B) A copy of such written arguments shall be simultaneously furnished to the opposite party."

12. He submitted that its' mandatory that before the written submission is filed before the Court, on the prior leave being granted, as it is in the instant case, by an order 24th December, 2020, the written submissions were required to be supplied and served upon to the counsel for the other side, which was not done in the instant case, because the written submission, which was on record, it bears no endorsement as such of service of its copy, and further it is also stands substantiated from the fact, that because the written arguments were supplied to the learned counsel for the respondents only, on his own request at the stage, when the Review was being considered. Hence, the sustainability of the written submissions and the aspect of its

consideration, is mitigated by non-compliance of the provisions contained under Sub-clause (3-B) of Rule 2 of Order 18.

13. The second argument, which has been extended by the learned counsel for the respondents is, and which will have a relevant bearing too, that if the tenacity of argument of the review applicant is considered, which has been pressed into to bring it within the ambit of an apparent error on the fact of record, which had been committed by the Court by non consideration of the written submission, he submits, that if the entire review petition is taken into consideration, there is not even a single ground taken by the review applicant from the said perspective, that what bearing would the legislative intent of Sub-rule (3-A) of Rule 2 of Order 18, would have for the purposes of reviewing the judgment, as prayed for by the learned counsel for the review applicant.

14. On scrutiny of the review petition, this Court is satisfied with the fact, that in fact, the review applicant has not taken this grounds as to be one of the grounds, to press his review, to attract the implication of Sub-rule (3-A) of Rule 2 of Order 18. Hence, the review cannot be ventured into beyond its pleadings, in the absence of the said ground being specifically taken by the review applicant. Thirdly, in the absence of ground being taken, another supporting argument, which has been raised by the learned counsel for the respondents is of non-compliance of Sub-rule (3-B) of Rule 2 of Order 18, would also become relevant for consideration before this Court, because, once that provision has been made as a mandate, which is necessarily required to be complied with, before a written submission is filed after the grant of leave of the Court, if the copy of the same was not served, the implications of Sub-rule (3-B) will come into play.

15. In view of the aforesaid prima facie objection raised by the learned counsel for the respondents, I am of the view, that the

judgment suffers from no apparent error as such, which calls for an interference under Order 47 Rule 1 to be read with Section 114 of the CPC, to review the judgment dated 25th January, 2021.

16. This Review Petition is dismissed without prejudice to the rights of the petitioner to prefer an Appeal in accordance with the Rules of the Court.

(Sharad Kumar Sharma, J.) 23.12.2021 Shiv