P.R. Sasidharan, Sepoy of Central Excise Vs. the Commissioner of Central Excise and Customs, Central Revenue Buildings, I.S. Press Road, CochIn and Others - Court Judgment

Hon'ble Dr. K.B.S. Rajan, Judicial Member

This Review Application has been filed requesting for review of order dated 29th October 2009 in OA No. 549/2009. The ground of review is that despite diligent attempt by the applicant an order dated 07-01-2004 was not brought to the notice of the tribunal and inadvertently the point was also not argued at the time of final hearing. As per the said order, suspension over one year should normally result in revocation of suspension and in the instant case, since the deemed suspension was w.e.f. 08-04-2005, one year period was over by April 2006 itself and hence, the applicant is entitled to get the benefit of the aforesaid order dated 07-01-2004.

2. The Review Application has been considered. For omission of the ground it is the applicant and his counsel who are to blame themselves and there is no scope for review on the grounds mentioned in the Review Application. Again, this ground is patently unacceptable. For, the counsel for the applicant in his argument note did refer to the order dated 07-01-2004 and yet confined his written submission only to the extent of review not being conducted properly and not on the point that under the said order beyond one year, normally suspension should not be continued. Thus, the applicant cannot now pretend that despite his earnest attempt he could not get access to the order dated 07-01-2004. This submission in the review application is evidently an after thought with a view to having the decided case reopened and re-argued, which cannot be permitted. Again, even as per the said order of 07-01-2004, there is no vested right available to the applicant to claim revocation of suspension after one year of initial date of suspension. The term 'ordinarily' provides for sufficient latitude of discretion to the disciplinary authority and their discretionary power cannot be encroached upon by a judicial order, unless use of discretion is accentuated by mala fide or arbitrariness. Such an arbitrariness or mala fide is not manifest in the records when the same were scanned by the Tribunal.

3. By this review application, the applicant makes an attempt to have the case re-argued, which cannot be permitted. It is appropriate to cite the judgment of the Apex Court in the case of Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, (1980) 2 SCC 167, wherein the Apex Court has held as under: - "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."

4. Again, the scope of review is very limited under the Administrative Tribunals Act. Grounds of review should fall within the parameter of review as contained in Order 47, Rule 1 of the CPA read with 22(3)(f) of the A.T. Act, 1985.

5. It has been held in the case of State of W.B. v. Kamal Sengupta, (2008) 8 SCC 612, as under: - "17. The power of a civil court to review its judgment/decision is traceable in Section 114 CPC. The grounds on which review can be sought are enumerated in Order 47 Rule 1 CPC, which reads 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, or 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."

18. Since the Tribunal's power to review its order/decision is akin to that of the civil court, statutorily enumerated and judicially recognised limitations on the civil court's power to review the judgment/decision would also apply to the Tribunal's power under Section 22(3)(f) of the Act. In other words, a tribunal established under the Act is entitled to review its order/decision only if either of the grounds enumerated in Order 47 Rule 1 are available. This would necessarily mean that a tribunal can review its order/decision on the discovery of new or important matter or evidence which the applicant could not produce at the time of initial decision despite exercise of due diligence, or the same was not within his knowledge or if it is shown that the order sought to be reviewed suffers from some mistake or error apparent on the face of the record or there exists some other reason, which, in the opinion of the Tribunal, is sufficient for reviewing the earlier order/decision."

6. Hence, the Review Application is dismissed. Under the normal circumstances we would have been inclined to impose deterrent cost as substantial court time gets wasted in such frivolous review application. However, since the review application has been decided in circulation, and not much of court time is wasted, we are not inclined to saddle the applicant with cost.