Syed Rafat Alam, Chairman, J.
1. This is an Application under Section 22(3)(f) of the Administrative Tribunals Act, 1985 seeking review of the order dated 23.5.2012 passed in OA No. 313/2010.
2. It appears that the applicant being aggrieved by the charge memo dated 28.03.1995 and the order of the disciplinary authority dated 13.08.2009 inflicting punishment of compulsory retirement from service in terms of rule 6 (1) of the All India Service (Discipline and Appeal) Rules, 1969, filed aforesaid OA seeking following reliefs:
a). Quash and set aside the impugned Memorandum dated 28.03.1995 (Annexure A-1) as illegal and non est ab initio or deem it lapsed in view of the Tribunal order dated 26.11.2002.
b). Quash and set aside the impugned orders inquiry report as also the impugned order of punishment dated 13.08.2009 as illegal and non est.
c). to pass Orders directing the Respondents to reinstate the applicant along with all consequential benefits.
d). Award exemplary costs in favour of the applicant and against both the Respondents; and
e). Pass such further orders and grant such further reliefs in favour of the applicant and against the respondents as may be deemed fit and proper in the facts and circumstances of the case.
3. A Division Bench of the Tribunal having heard the parties at length, found that the impugned order inflicting penalty suffers from legal infirmity on three counts, i.e., (a) the impugned penalty order has been passed before the supply of CVC report to the applicant; (b) the non-supply of UPSC report before the passing of the impugned penalty order has violated the principles of natural justice; and (c) non-speaking and non-reasoned penalty order passed by the competent authority, and, therefore, in the light of the law enunciated by the Apex Court in State Bank of India and others v D. C. Aggarwal and another [(1993) 1 SCC 13 and Union of India and others v S. K. Kapoor [Civil Appeal No.5341 of 2006 decided on 16.03.2011], disposed of the OA with the following order:
24. Resultantly, the penalty order dated 13.08.2009 is quashed and set aside. Consequently, the respondents are directed to reinstate the applicant in service forthwith. However, liberty is granted to the respondents to continue with the disciplinary case against the applicant from the stage where the legal infirmity has crept in. We consider that the legal infirmity has been crept in from the stage of non-supply of CVC and UPSC advice to the applicant before passing of the impugned penalty order dated 13.08.2009. The respondents are, therefore, directed to get the representation of the applicant on the UPSC and CVC advice already communicated to him vide order dated 14.09.2009 and on receipt of the same, the respondents would pass appropriate orders which should be speaking and reasoned one. The applicant is also directed to furnish his response to the CVC and UPSC advice communicated to him vide respondents order dated 14.09.2009, within a period of four weeks from the date of receipt of a certified copy of this order. Let the respondents decide the representation of the applicant as expeditiously as possible but positively within a period of three months from the date of receipt of representation of the applicant.
4. Though the order inflicting punishment was set aside and the applicant was directed to be reinstated in service with the liberty to the respondents to proceed with the disciplinary proceeding against him from the stage where the legal infirmity had crept in, the applicant did not feel satisfied with the aforesaid order and went to the High Court by filing WP(C) No.4007/2012. However, on the prayer made by the applicant, the writ petition was permitted to be withdrawn vide order dated 11.07.2012, which is a under:
The learned counsel for the petitioner seeks permission to withdraw this writ petition on the ground that he would be filing a review petition before the Tribunal as according to him certain issues which were raised before the Tribunal have not been considered by the said Tribunal. Dismissed as withdrawn with the aforesaid liberty.
The applicant, therefore, in view of the liberty granted by the High Court, has preferred this review application with the following reliefs:
It is, therefore, prayed that the order dated 23.05.2012 may kindly be reviewed in so far as it remits back the inquiry to be proceeded from the stage of CVC and UPSC advice; and, the disciplinary proceedings, the inquiry report as well as the impugned Charge Memo dated 28.03.1995 quashed/set aside ab-initio on the grounds enumerated above as also due to laches and delay; and, the order dated 23.05.2012 quashing the impugned order dated 13.08.2009-made absolute and final.
The review application was thereafter heard by us. However, it was again listed for re-hearing on 23.01.2014. The applicant appeared in person. We have heard him at length. He has also submitted written arguments.
5. The first ground that the applicant has taken for review is that the impugned order dated 23.5.2012 of the Tribunal was based upon the written submissions made by the applicant. However, the Tribunal had not considered all the points made by him and, therefore, it amounts to denial of natural rights to him. The second stand is that the Tribunal had quashed the penalty order dated 13.8.2009 issued by the Ministry of Home Affairs, Government of India only on the ground of non-service of CVC and UPSC advice besides order of the disciplinary authority being non-speaking, but did not appreciate that there were number of procedural illegalities that vitiated the inquiry from the very stage of initiation. The disciplinary authority had recommended the punishment of compulsory retirement upon the applicant at the stage of initiation of the proceedings against the instructions of the DOPT, GOI and also of the CVC Manual, which provided that the disciplinary authority is not to express any opinion regarding the penalty to be imposed while forwarding the disciplinary case to the UPSC or to the CVC and adhere strictly to the provisions of the Rule 9 of AIS (DandA) Rules, 1969. The third argument of the applicant is that the chain of illegalities had commenced immediately following the submission of the charge-sheet. The defence of the applicant had not been brought on record, which caused serious prejudice to him. The inquiry continued for a period of 18 years and brought him to the verge of the retirement. The applicant further questions the finding in the inquiry report that he did not submit any list of defence witnesses, despite submission of list of defence witnesses by him before Shri P. S. Kumar, IPS, who was the first inquiry officer, and another list to 2nd IA C.Balakrishanan, IAS, vide his letter dated 11.12.2000. The applicant also submits that there is no mention of the MA No. 1289/2002 in para 5 of the order dated 23.5.2012 directing the respondent No.1 to pass final order in the inquiry by 15.1.2003 positively and that no further time shall be allowed for the purpose. In this very order, there is no mention of the detailed rebuttal of wrong inferences drawn by the UPSC and of the paras 11, 13 and 14 of the written submissions. The applicant is further of the opinion that one R.S. Dhaulta, who acted as the presenting officer from 4.2.1997 to 18.3.1997, had no legal authority to do so and yet in this capacity, he had examined crucial State witnesses from 25.2.1997 onwards. The applicant, in this regard, questions the directions by the applicant No.1 to proceed on ex parte basis against him and change of IA by the respondent No.2 on the allegations of bias. The applicant submitted that the order dated 23.5.2012 was full of inconsistency and incorrect statements. For instance, it is wrongly mentioned in line 29 (page 41 of the RA) that The written submissions by the Presenting Officer have also been supplied to the applicant. During the course of the oral submissions, the applicant emphasized that the Presenting Officer was highly trained legal person while the applicant, at that point of time, was not an expert. He, therefore, had requested for a legally trained person to be his DA which was not allowed. The applicant had raised the issue of his prejudiced attitude on this account, yet the inquiry officer failed to suspend further proceedings. Though he forwarded the matter to his superior officers, but had informed the applicant on the same date that if he failed to participate in the inquiry, it would be continued ex parte. The inquiry officer had been changed on grounds of bias. Therefore, the inquiry should have been disregarded. The applicant submits that the Honble High Court has remitted the case back to the Tribunal for consideration of all the points raised by the applicant and with full liberty to raise the grounds before the Tribunal. He also submits that he had filed the instant Review Application on 31.7.2012 while notices were issued on 28.8.2012. In the meantime, the respondents had proceeded to pass another order dated 17.8.2012 of compulsory retirement against him, when the matter was pending consideration before the Tribunal. This act on the part of the respondents is contumacious of the Tribunal and, therefore they deserve to be proceeded with.
6. On the other hand, the learned counsel appearing for the respondents while opposing the prayer for review of the order of the Tribunal submitted that the Honble High Court had never remitted the matter to the Tribunal, rather the applicant, after some argument, submitted before the Honble High Court that he would be filing a Review Application against the order and withdrew his WP(C) No. 4007/2012. Meanwhile, since another order of compulsory retirement has been passed against him on 17.8.2012 which has been given effect to, hence, this Review Application has been rendered infructuous and the applicant has a fresh cause of action to challenge the subsequent order of punishment. In the second place, the learned counsel for the respondents has argued that in pursuance of the order of this Tribunal, the applicant was reinstated into service vide the order dated 13.6.2012. Further, the respondent No.2 provided a copy of the advice of the UPSC and CVC through the respondent No.2 to the applicant, asking him to submit his representation within a period of 15 days. The applicant vide the letter dated 14.7.2012, had requested for extension of time on medical grounds to submit his representation. Having considered the ground for extension of time, the time was extended for submission of representation. The applicant, however, failed to submit his representation despite sufficient time being allowed to him and, therefore, the disciplinary authority had no option but to take the decision in accordance with law. Consequently, the order of compulsory retirement from service was passed. It was further argued on behalf of the respondents that this Tribunal has already considered the arguments of the applicant in OA No. 313/2010 and has passed the appropriate orders wherein these points were also placed, however, there is no justification whatsoever to re-agitate these issues and the same would amount to sitting in appeal over the previous order.
7. We have carefully perused the pleadings and the documents submitted by the parties. We have also heard the arguments of the applicant appearing in person and that of the learned counsel for the respondents and are of the view that the following issues need to be addressed:- (i). What is the scope of a review application? Does it permit re-hearing of the case or has a limited scope?
(ii). Has the review application been rendered infructuous on account of being overtaken by the order dated 17.8.2012.
(iii). Has the order of 17.8.2012 been passed against any directive of this Tribunal.
(iv). Is there any patent error of law which calls for review of the earlier order dated 23.05.2012 in OA No.313/2010.
8. Power to review its decision is vested in the Tribunal under Section 22 (3) (f) of the Administrative Tribunals Act, 1985 which empowers the Tribunal to review its decision. The basic provision contained in Section 22 (1) of the Act provides that the Tribunal shall not be bound by the procedure laid down in the CPC, but shall be guided by the principles of natural justice and subject to other provisions of the Act and the rules made by the Central Government. It shall have power to regulate its own procedure including the fixing of places and times of its inquiry and deciding whether to sit in public or in private. Section 22(1) of the Act reads as under:-
22 (1). A Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the principles of natural justice and subject to the other provisions of this Act and of any rules made by the Central Government, the Tribunal shall have power to regulate its own procedure including the fixing of places and times of its inquiry and deciding whether to sit in public or in private.
9. However, the Act does not totally bereft the Tribunal of powers under CPC, and for certain purposes the power of civil court has been bestowed upon the Tribunal which would be clear from cause (f) of sub-section (3) of Section 22, which has vested the Tribunal with the power to review its own decisions. Sub-section (3) (f) of Section 22 reads as under:-
(3).A Tribunal shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit, in respect of the following matters, namely:-
xxxxxx xxx
(f).reviewing its decisions;
10. Reading both the provisions conjointly, it would be clear that the power of this Tribunal to undertake a review of its own decisions is wide and extensive. However, on a deeper probe, it does not appear to be so. For this we have to make a scrutiny of all the original source of powers of the civil court which has been prescribed under Section 114 which reads as under:-
114. Review.-Subject as aforesaid, any person considering himself aggrieved,-
(a).by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b).by a decree or order from which no appeal is allowed by this Code, or
(c). by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.
So far as the Honble Supreme Court is concerned, the power of review is extensive and has been prescribed under Article 137 to be read with Rules framed under Article 145.
11. The provision of sub-clause (c) of Rule 114 of the Code of Civil Procedure provides that the court may make such order thereon, as it thinks fit, but the power is to be exercised in accordance with provisions contained in Order XLVII Rule 1, which provides as under:
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, 6r 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 the decree passed or order made against him, may apply for 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 on 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.
4. Application where rejected.-(1) Where it appears to the Court that there is not sufficient ground for a review, it shall reject the application. 12. It is evident from the above that a review is not the same thing as appeal. In appeal the scope is much greater where the court of appeal can go into issues of law or of fact or both. However, in case of review, the scope has been grossly circumscribed to such cases where the review seeker has made a discovery of a new and important matter or evidence, which after exercise of the due diligence, was not within his knowledge and could not be produced by him when the decree or order was passed or when some mistakes or errors apparent on the face of the record have been made or where the court has overlooked some obvious facts on the basis of which, a decision could be made. It is, therefore, a fundamental requirement that in order that a review is admissible, one of the three conditions as enumerated above should be established. It is also a fact that the review is not an appeal or not even a re-hearing of the case. The points, which have been considered and adjudicated upon by the court, cannot form the basis of the review unless one of the three conditions gets fulfilled.
13. In the case of West Bengal and Ors Vs. Kamalsengupta and Anr. [2008(8) SCC 612], the Honble Supreme Court held as under:-
28. In Parsion Devi and Others vs. Sumitri Devi and Others [1997 (8) SCC 715], it was held as under:-
"Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47, Rule 1 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise"."
[Emphasis added]
29. In Haridas Das vs. Usha Rani Banik and others [2006 (4) SCC 78], this Court made a reference to explanation added to Order 47 by the Code of Civil Procedure (Amendment) Act, 1976 and held :
"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".
14. The case of West Bengal and Ors. Vs. Kamalsengupta and Anr. (Supra) is a landmark judgment in the epics of review of its own decisions of the courts. In this judgment, the Honble Judges have considered the prevalent restrictions imposed upon the courts for undertaking a review of their own judgment and have consolidated the same under paragraph 35, which reads as under:-
35. The principles which can be culled out from the above noted judgments are:
(i). The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a Civil Court under Section 114 read with Order 47 Rule 1 of CPC.
(ii). The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise.
(iii). The expression "any other sufficient reason" appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds.
(iv). An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(f).
(v). An erroneous order/decision cannot be corrected in the guise of exercise of power of review.
(vi). A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a coordinate or larger bench of the Tribunal or of a superior Court.
(vii). While considering an application for review, the Tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.
(viii). Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court/Tribunal earlier.
15. In the case of Sow.Chandra Kanta and Anr. Vs. Sheikh Habib [AIR 1975 SC 1500], Honble Supreme Court has defined the scope of the review application:-
œMr. Daphtary, learned counsel for the petitioners, has argued at length all the points which were urged at the earlier stage when we refused special leave thus making out that a review proceeding virtually amounts to a re-hearing. May be we were not right in refusing special leave right in the first round but, once an order has been passed by this Court a review thereof must be subject to the rules of the game and cannot be lightly entertained. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition through different counsel of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of counsel's certificate which should not be a routine affair or a habitual step. It is neither fairness to the court which decided nor awareness of the precious public time lost what with a huge back-log of dockets waiting in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use. We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear then has been heard now, except a couple of rulings on points earlier put forward. May be as counsel now urges and then pressed, our order refusing special leave was capable of a different course. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality.
We dismiss the petition unhesitatingly, but with these observations hopefully.
Petition dismissed.
16. In a decided case of this Tribunal in RA No. 19/2012 in OA No. 2961/2009, the Tribunal has defined the scope of RA:-
5. The settled legal position is that this Tribunal cannot sit on appeal on its own order. The Review Applicant has averred the same/similar grounds which have already been considered during the hearing in the OA. Thus, we cannot hear the case against Tribunals order in the guise of the RA. This would mean Tribunal is taking up appeal against its order which is impermissible in law. Our view is supported by the ratio laid in the judgments of Honourable Supreme Court in Union of India Versus Tarit Mohan Das (2003 STPL (LandE) 32747 SC); Gopal Singh Versus State Cadre Forest Officers Association [2007 STPL(LE) 38452 SC] and State of West Bengal Versus Kamal Sengupta [2008 (8) SCC 612].
17. No decision on the issue of the power of review bestowed under Section 22(3)(f) of the Administrative Tribunals Act, 1985, Section 114 of the CPC and Order XLVII Rule of the CPC shall be complete without making a mention of another landmark decision in the case of M/s Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi by a three-judge Bench as reported in 1980(2) SCC 167, the Honble Justice Krishna Iyer has pithily summed up this power as hereunder:-
14. A plea for review, unless the first judicial view is manifestly distorted, is like asking for the moon. A forensic defeat cannot be avenged by an invitation to have a second look, hopeful of discovery of flaws and reversal of result. I agree with my learned brother Pathak J. both on the restrictive review jurisdiction and the rejection of the prayer in this case - subject to the qualifications made below.
15. Indeed, a reading of the last paragraph of my learned brother, with which I concur, makes it clear that Sri Soli Sorabjee has more or less won the war, although he has rightly lost this battle because of factual constraints. A case is decided on its particular conspectus of facts, when the facts materially vary, the law selectively shifts its focus. Here, the factual setting in which the decision is founded becomes critical. My learned brother has made it perfectly plain that the appeal proceeded on the admitted footing that the visitor to the restaurant who sat at the table and was served the dishes he desired had, in that case, no right to carry home what he wanted, after eating what he wanted, and to pay for the eatables as distinguished from the total blend of services, including supply (not sale) of what he choose to eat. The basic, indeed decisive, assumption was that victuals, as such, were not sold and the consideration was for the complex of activities which included eating and drinking. This sophisticated situation being granted, the conclusion is impeccable. But if circumstances differ, the decision too will be different. But no alternative situations were presented. If counsel defaults in the submission, he cannot find fault with the court for the decision. This is the long and short of it.
18. In consideration of the above decisions of the Honble Supreme Court, it emerges clearly that the power of review is to be exercised not as a normal rule as a forum of the appeal, but only selectively where some apparent error of law or facts have been noticed or there are such compelling reasons that it becomes necessary for the court to review his earlier decision. On the basis of the above discussions, we would like to add the following to paragraph 35 of the judgment in West Bengal and Ors. Vs. Kamalsengupta and Anr.:-
(i). The Review Petition should not become an invitation of hearing and appeal in disguise.
(ii).The Review Petition should not tantamount to a rehearing of the entire case and important matters or evidence which was not within the knowledge of the court or could not have produced before him when the matter has been subsequently made. This provision is further curtailed by the explanation added subsequently, which provides where a judgment of the court has been reversed or modified by a superior court in any other case, the same shall not be a ground of filing a Review Application.
(iii). The error or mistake should be established ab initio in the Review Application clearly.
(iv). Any other reason should be so graved that it should indicate abortion of justice on the face of it.
(v). The matters, which have already been completed before the court and considered, cannot be taken in any of the above categories merely because it is placed in a different language or it is represented differently.
(vi). The fact might have been pleaded and yet does not find mention in the order of the court, does not unnecessarily indicate that it has not been considered and, therefore, become a ground for the Review Application.
19. We now take up the second issue. It is admitted that the review application has been filed against the order dated 23.5.2012 in OA No. 313/2010. Admittedly, in this OA, the applicant has challenged the order of compulsory retirement passed against him on 13.8.2009. In the second order i.e. 17.8.2012, the disciplinary authority has again imposed a penalty of compulsory retirement against the applicant. Hence, the order dated 13.8.2009 has been overtaken by the order dated 17.8.2012. This renders the review application filed in the instant case as infructuous. Let us suppose for the sake of argument that even if the instant RA were to succeed and the order dated 13.8.2009 were to be quashed, even then it would not alter the situation in any manner, as the order dated 17.8.2012 is already in place and has taken effect to. Therefore, we find substance in the argument of the respondents that the instant RA has been rendered infructuous.
20. Now we come to the third issue. It has been alleged that the order dated 17.8.2012 of the disciplinary authority constitutes a contempt of the court, as the review application has already been filed and was pending consideration of the Tribunal. Here, it remains an admitted fact that the order dated 17.8.2012 is nowhere in challenge and has not even been appended to this RA. There is no order in the instant review application restraining the respondents from acting in any manner against the applicant. To the contrary, there is permission from the Tribunal granted to the respondents to proceed against the applicant from the stage of submission of the advice of the UPSC and the CVC. Hence, the respondents were not restrained in any manner whatsoever from passing the order dated 17.8.2012. Hence, it is a non-issue insofar as this Tribunal is concerned.
21. Now we come to the fourth issue that whether there is any error that is patent on the face of it so as to warrant a review of the decision. In fact, what the applicant has submitted is virtually a re-hearing. We find that in OA No. 313/2010, note of argument has been submitted on behalf of the applicant where the points submitted are virtually the same as have been submitted in the note of argument in the instant case.
22. Without going into the detail of the matter, we can only conclude that a detailed discussion of this question is unnecessary, as RA has been rendered infructuous as held earlier. We also note that the applicant has given a detailed list of witnesses, and submission regarding appointment of inquiry officer, which was earlier pleaded before the Tribunal in OA No. 313/2010.
23. The applicant has placed reliance upon the following cases:-
(i). Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkrani and Ors. [(1983) 1 SCC 124]
(ii).Indrani Bai Vs. Union of India [1994 SCC Suppl (2) 256
(iii). Tilak Chand Magatram Obhan Vs. Kamala Prasad Shukla and Ors. [1995 Supp(1) SCC 21]
(iv). Kuldeep Singh Vs. The Commissioner of Police and Ors. [1999(1) SLR 283]
24. However, we are of the view that it is not necessary to go into these cases in view of clear findings regarding the RA having been rendered infructuous. It would be apt to take a note of sub-clause (vii) of Para 35 of the judgment in the case of West Bengal and Ors. Vs. Kamalsengupta and Anr. (supra). This sub-clause provides that the Tribunal has to confine its adjudication with reference to the materials which were available at the time of the initial decision. The happening of some subsequent event or development is not to be taken note for declaring the initial order/decision vitiated by an error of judgment. We have fully taken note of the argument tendered by the learned counsel for the respondents that the order dated 17.8.2012 has rendered the present RA infructuous. However, in view of sub-clause (vii) of Para 35 of West Bengal and Ors. Vs. Kamalsengupta and Anr. (supra), we feel that we cannot venture to the order dated 17.8.2012. This case has to be considered in view of the general principles enunciated in the above Para 35. For this purpose, we have selected some of the parameters and have asked ourselves the questions-whether there has been some material, which was not available at that time, but it has subsequently been brought on the record; whether there has been some error apparent on the face of it; whether the Review Application is only a re-hearing of the case; whether the Review Application is a fully in disguise; whether the points urged in OA No. 313/2010 is the same as which is being urged before this Tribunal. The chart given below sums up:-
SI
No.Points made in the RA Whether submitted in the OA Ramarks/ review value i).Because, when order dated 23.05.2012 in OA No. 313/2010 was passed by the Ld. Tribunal, it was in cognizance of the receipt of the Written submissions on behalf of the Applicant (Annexure A-3, pages 45-48 of R.A.). Therein the legal pleas pertaining to the violation of the statutory and mandatory provisions contained in the AIS (DandA) Rules, 1965 for conduct of the inquiry proceedings were highlighted showing violation of the principals of natural justice and complete deprivation of reasonable opportunity to the applicant. But, unfortunately, all of them were not taken into consideration and reflected in order dated 23.05.2012 passed by the Ld. Tribunal. Points submitted in written statement, which were also the part of the pleadings have been taken into consideration in the order dated 23.05.2012 (specifically in Para 8) Points which are not part of pleadings and specifically prayed have found no review value. It was held by the Honble Supreme Court in Trojan and Co. v. RM.N.N. Nagappa Chettiar, AIR 1953 SC 235 that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it in an alternative case. ii). Because, the Ld. Tribunal quashed the impugned penal order dated 13.08.2009 issued by MHA, GOI i.e. Respondent No.1 in the OA, only on the illegality of non-service of CVC and UPSC advice as well as on non-speaking order of the disciplinary authority. This resulted in ordering the remittance of the case to the Disciplinary Authority (i.e. Central Government) from the stage of providing CVC and UPSC advice. A factual submissionIt does not indicate any ground for review iii). Because, on pointing out the procedural illegalities that vitiated the inquiry from an earlier stage including examination of witnesses and denial of opportunity to file a defense brief in the inquiry. It was observed by the Honble High Court that for the issues that had been raised before the Ld. Tribunal and not considered by it, the remedy lay before the Ld. Tribunal, being the Court of first instance to approach by way of review. This has been reflected in the order passed by the Honble High Court on 11.07.2012 in W.P.(C) No.4007/2012 (Annexure A-2, page 44 of R.A.). Issues prayed and pressed before the Tribunal have been considered. Issues, which are not pressed and argued before the Tribunal, need not be examined afresh. Not covered under the parameters for review, as it was observed in Para 16 by the Honble Supreme Court in T.P. Moideen Koya Vs. Govt. of Kerala and Ors., JT 2004(8)SC 383, that however, a grievance is raised that the said contention has not been dealt with or decided in the judgment of this Court. It is, therefore, apparent that the only plea raised in the present petition had also been raised in the Special Leave Petition which had been filed earlier seeking quashing of the detention order and the release of the petitioner. It is neither a subsequent development nor new plea which may not have been available at the earlier stage. If the plea raised has not been considered in the judgment rendered by this Court on 28.07.2003 in Special Leave Petition (Criminal) No.1215 of 2003, as submitted by the petitioner, it cannot be a ground to entertain a fresh petition under Article 32 of the Constitution on the principles discussed above. In the course of judgment Courts normally deal with only such points which are pressed and argued. If fresh petition under Article 32 is permitted on the ground that certain point has not been dealt with in the judgment a party can file as many petitions as he likes and take one or two new points every time. Besides, if such a course was allowed to be adopted, the doctrine of finality of judgments pronounced by the Supreme Court would also be materially affected. Therefore, having regard to the facts pleaded and the grounds raised, the present petition is not maintainable. iv).Because of perusal of the order dated 13.08.2009 (Annexure A-2, page 56 of OA), establishes that Discipline Authority illegally predetermined and prejudged the issue by recommending the major penalty of Compulsory Retirement upon the applicant, in violation of the mandatory instructions issued by the DOPT, GOI (Copy Annexed) as also of the CVC manual (Para 5.20 of O.A.), which respectively provide that the Disciplinary Authority should not express any opinion regarding penalty to be imposed while forwarding a disciplinary case to the UPSC or to the CVC, and, adhere strictly to provision of applicable DandA Rules i.e. Rule 9 of AIS(DandA) Rules, 1969 This point has also been submitted in the OA and has been dealt with in the body of the order dated 23.05.2012No review value for the instant case, as the same has also been submitted and considered in the OA. v). Because the Ld. Tribunal erroneously remitted the case back to the respondents for holding proceedings from the stage of supply of the CVCs and the UPSCs advice, despite the same illegality having been committed twice by Respondent No.1(i.e.UOI). This point has been submitted and has been duly considered. It has no review value, as the case has also been submitted and considered. vi).Because, if the rampant violation of the statutory and mandatory provisions of Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969 were considered, the illegality would have surfaced at the stage immediately after the charge-sheet was issued to the applicant. This would not only have cured the illegality but also provided a reasonable opportunity of defense to the applicant against the allegations. Having not done so, the defense of the applicant that was required to be taken in the inquiry to disprove the falsely leveled charges against him, could not be brought on record. This has caused total prejudice to the applicant, by violating the cardinal principles of law. This point has been submitted and has been duly considered. It has no review value, as the case has also been submitted and considered. vii).Because, this inquiry was initiated in 1995 and has dragged on for a period of 18 years for no fault of the applicant. The applicant is on the verge of his retirement, and has not only faced this trauma of unwarranted proceedings but has also been deprived of due promotions/awards/medals, unwarrantedly defamed and lost prestige in society. It is a statement of fact which was also there before the Tribunal in the OA No review value viii)Because, it is wrongly stated in line 14 of para of the order dated 23.05.2012 that, The applicant did not submit list of any defence witness. A list of defence witnesses was submitted to the 1st I.A. P.S. Kumar, PS vide letter No.RK/98-10 dated 14.04.98 and No.RK/98-19 dated 16.05.98; and, another list of defence witnesses was submitted to the 2nd I.A. Sh. C.Balakrishanan, IAS vide letter No.Nil dated 11.12.2000. Thee facts are stated in paras 4 and 6 of the Applicants reply dated 07.12.2001 to the inquiry report (Annexure A-32, pages 155 and 156 respectively of O.A. No.313/2010). Also, the date 03.04.2001 mentioned in line 24 of para 4 of the said order should read as 03.07.2001.Urged It is not covered under the parameters prescribed for RA ix) Because, in para 5 of the order dated 23.05.2012, there is no mention of M.A. No. 1289/2012 (Annexure A-33 of OA) filed by Respondent No.1 that was disposed of by CAT, Chandigarh Bench on 26.11.2002 (Annexure A-34, page 198 of O.A.) directing Respondent No.1 to pass final order in the inquiry by 15.01.2013 positively, and that no further time shall be allowed for the purpose. After that inquiry was illegal. This point has also been urged in the OA It is not covered under the parameters prescribed for RA x) Because in para 7 of the order dated 23.05.2012, there is no mention of the detailed rebuttal (Annexure A-37; Pages 215-234 of O.A.) of the wrong inferences dawn by UPSC based on conjectures and surmises (Annexure A-36; Pages 202-214); and, in para 9 ibid, there is no mention of paras-11,13 and 14 of Written submissions, It does not render It is covered under the requirement for RA and it does not vitiate the proceeding. xi) Because, in para 21 of the order dated 23.05.2012 the facts that Sh. R.S. Dhaulta acted as a Presenting Officer (P.O.) from 04.02.97 to 18.03.97 without legal authority (Paras 4.15 and 4.16 of O.A.), and, examined crucial State witnesses from 25.02.97 onwards, is not recorded and not considered as violation of principles of natural justice. Further, the illegal direction given on 04.10.97 by Respondent No.2 (i.e. D.A) to the Inquiry Authority (I.A.) to proceed ex parte (Para 4.17 of O.A.); and, the fact of changing the I.A. by Respondent No.2 due to allegations of bias (Para 4.18 of O.A.), after the I.A. had already recorded all evidence ex-parte, were not considered illegal. Urged and considered in the OA It has no review value as the case has also been submitted and considered. xii) Because, the reasoning and logic given in para 22 of the said order dated 23.05.2012 does not have inner consistency being contradictory and is not based on sound principles. It is wrongly stated in line 29 (page 41 of R.A.) that, The written submissions by the Presenting Officer have also been supplied to the applicant.and, is proved by submission made in para 4.19 of OA and para 10 of Written submissions.Urged and considered in the OA It has no review value as the case has also been submitted and considered. 25. From the aforesaid chart and the discussions made above, it is evident that there is nothing new that has been submitted by the applicant on the basis of which the Review Application will succeed. The Apex Court in different pronouncements has also laid down the parameters which must be fulfilled so that a RA succeeds. We have also added certain parameters at our own which are deemed essential for the success of the RA. The table above clearly indicates that the grounds submitted for RA are the same which have been submitted in the OA and which have already been considered. It is not necessary that all the grounds, which have been submitted, should be covered in the order, otherwise brevity would be the first causality. It would become impossible for any court to write brief orders and the orders would unnecessarily become bulky. It is normal practice that only such points, which are relevant or germane to the issue, are dealt in the order. Besides, it is well settled legal proposition that the scope of review is very limited and an order or judgment can be reviewed only after it is established that it suffers from error apparent on the face of record or for any other sufficient reason. Review is not an appeal in disguise providing opportunity to a party for re-hearing on the same question which was already decided; in other words, it cannot be used as a forum to re-establish or re-argue the matter on merit.
26. Having considered the submissions made and keeping in view the scope of review as enunciated by the Apex Court, we are of the view that no case or ground is made out to review the order dated 23.05.2012. The review application being thoroughly misconceived deserves to be dismissed. It is accordingly dismissed, but without costs.