Dismissed

Arun Kumar Srivastava v. Comptroller and Auditor General of India

CAT1 Nov 2023R.A./45/2015

Case brief

AI extract

What is this about?

The Central Administrative Tribunal dismissed a review application filed by a petitioner seeking quashing of his compulsory retirement. The Court held that the failure to press specific grounds regarding service calculation in the original appeal precludes review and that review cannot correct mere errors of fact or merit.

What did the court decide?

Review application dismissed; no costs awarded; associated miscellaneous applications disposed of.

Arun Kumar Srivastava vs Comptroller and Auditor… — Pension and Retirement Benefits | CAT (2023)

¶1

RA No. 45 of 2015

¶2

(Reserved on 26.09.2023)

¶3

CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH

¶4

ALLAHABAD .

¶5

Allahabad this, the 01^st day of November, 2023

¶6

Review Application No. 45 of 2015 in Original Application No. 330/00832/2012

¶7

Hon’ble Mr. Justice B.K. Shrivastava, Member (Judicial) Hon’ble Mr. Mohan Pyare, Member (Administrative)

¶8

Arun Kumar Srivastava, S/o Late Krishna Kumar Srivastava R/o Humayunpur North, Ahirana Tola, Gorakhpur.

¶9

.... Applicant

¶10

By Advocate: Shri Sunil

¶11

VERSUS

¶12

Union of India through C.A.G. of India, 9, Deen Dayal Upadhyay Marg, New Delhi.

¶13

Deputy C.A.G. of of India, 9, Deen Dayal Upadhyay Marg, New Delhi.

¶14

Principal Director, Audit, N.E. Railway, Gorakhpur.

¶15

Deputy Director, Audit, N.E. Railway, Gorakhpur.

¶16

Sri Mukesh P. Singh, Presently Posted as Principal A.G., U.P., Allahabad.

¶17

……Respondents

¶18

By Advocate: Shri Amitabh Kumar Sinha

¶19

Page 1 of 10

¶20

RA No. 45 of 2015

¶21

O R D E R

¶22

By Hon’ble Mr. Mohan Pyare, Member (Administrative) :

¶23

Shri Sunil, learned counsel for the applicant and Shri Amitabh Kumar Sinha, learned counsel for the respondents are present.

¶24

This review application has been filed by the applicant to review the order dated 10.04.2015 passed by this Tribunal in OA No.832 of 2012. This Tribunal vide order dated 10.04.2015, dismissed the OA. The operative portion of the aforesaid order is reproduced as below :-

¶25

“As regards the arguments raised by the applicant in respect to applicability of Section 19 (4) of the Administrative Tribunal Act, 1985, it is to be pointed out that the authorities are not powered to take a decision in relation to subject matter of such application which is pending but in the instant case the order of compulsory retirement is altogether a different cause of action, as such, the argument advanced by learned counsel for the applicant has no legs to stand. For ready reference, Section 19 (4) of the Administrative Tribunal Act, 1985 is reproduced below :-

¶26

“(4) Where an application has been admitted by a Tribunal under sub-section (3), every proceeding under the relevant service rules as to redressal of grievances in relation to the subject-matter of such application pending immediately before such admission shall abate and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules.”

¶27

Considering the submissions made by learned counsel for the parties and after perusing the available records, we find no merit in the O.A. which is accordingly dismissed. No order as to cost.”

¶28

Page 2 of 10

¶29

RA No. 45 of 2015

¶30

The ground shown for this review application by applicant is that the applicant was compulsorily retired from service wrongly and illegally vide order dated 01.02.2012 as having completed 30 years qualifying service as required for compulsory retirement, while the fact is that out of 30 years of service, a total period of 98 days is Dies Non in the service of the applicant. This fact was fully stated in Para No.21 of the OA No.832 of 2012 and the fact was fully argued and brought to the notice of this Tribunal. The Hon’ble Tribunal did not consider this legal ground while this point was raised emphatically during course of argument and the OA was dismissed vide order dated 10.04.2015. A Writ Petition No. 36772 of 2015 was filed before the Hon’ble High Court of Allahabad against the order dated 10.04.2015 passed by this Tribunal. The Hon’ble High Court while dismissing the writ petition on 07.07.2015, has granted liberty to the petitioner/applicant to file a review application before the Tribunal. Hence, this review application is filed.

¶31

The respondents in their counter affidavit have mentioned that for unsatisfactory performance of his official duties and on the basis of various relevant materials placed on the record, screening committee had recommended the name of the applicant in view of the powers conferred under the provisions of Rules 48 of the CCS (Pension) Rules, 1972, for order of

¶32

Page 3 of 10

¶33

RA No. 45 of 2015

¶34

compulsory retirement and accordingly under the office order dated 01/02/2012 the applicant was compulsory retired. The screening committee had recommended the name of the applicant in view of the powers conferred under CCS (Pension) Rule, 1972 by computing the qualifying service as required under the Rules and as such it is absolutely false to allege that the qualifying service has not been properly calculated before making recommendation by the committee. In view of the provisions as contained in Section 19 (4) of the Administrative Tribunals Act, 1985, the respondents are precluded to take any decision in relation to the subject matter of the such application but the Hon’ble Tribunal after going through the records has specifically held that the order dated 01.02.2012 compulsory retiring the applicant is not covered under the previous OA No.1001 of 2007 (Arun Kumar Srivastava Vs. UOI & ors.) as the order of compulsory retirement is altogether a different cause of action and as such, such argument advanced by the learned counsel has no leg to stand. The applicant in the OA has not at all taken any grounds that his qualifying services has not been properly calculated by the screening committee and in view of the matter, if the applicant is not satisfied with the order dated 01.02.2012 passed by the Authority, the appeal against said decision lies with the higher Authority i.e. Deputy comptroller and Auditor General of India. The applicant had not preferred any representation and as such in view of the provisions as contained in Section 20 of the

¶35

Page 4 of 10

¶36

RA No. 45 of 2015

¶37

A.T. Act, 1985 the claim of the applicant without exhausting the Departmental remedy is not maintainable and is liable to be dismissed. Learned counsel for the respondents has cited the following cases which is reproduced as below :-

¶38

The scope of review is very limited and the Hon’ble Tribunal has similar power to the one conferred upon the Civil Court and had specifically held in the case of Shri Ajit Kumar Rath Vs. State of Orissa and others as reported in AIR 2000 (SC) 85 by making observation in the following terms :-

¶39

“ The provisions extracted above indicate that the power of review available to the Tribunal is the same as has been given to a court under Section 114 read with Order 47 CPC. The power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression "any other sufficient reason" used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the rule.

¶40

Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of the liberty given to the Tribunal under the Act to review its judgment .”

¶41

In the case of Gopal Singh Vs. State Cadre Forest Officer’ Assn. and others (2007 (9) SCC 369, the Apex Court held that after rejecting the Original Application filed by the appellant, there was no justification for the Tribunal to review its order and allowed

¶42

Page 5 of 10

¶43

RA No. 45 of 2015

¶44

the revision of the appellant. Some of the observations made in that judgment are extracted below :-

¶45

“ The learned counsel for the State also pointed out that there was no necessity whatsoever on the part of the Tribunal to review its own judgment. Even after the microscopic examination of the judgment of the Tribunal we could not find a single reason in the whole judgment as to how the review was justified and for what reasons. No apparent error on the face of the record was pointed, nor was it discussed. Thereby the Tribunal sat as an appellate authority over its own judgment. This was completely impermissible and we agree with the High Court (Justice Sinha) that the Tribunal has traveled out of its jurisdiction to write a second order in the name of reviewing its own judgment. In fact the learned counsel for the appellant did not address us on this very vital aspect .”

¶46

Similarly in the case of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma, (1979) 4 SCC 389, the Hon’ble Supreme Court referred to an earlier decision in the case of Shivdeo Singh Vs. State of Punjab, AIR 1963 SC 1909 and observed as under :-

¶47

“ It is true as observed by this Court in Shivdev Singh and Ors. v. State of Punjab and Ors. AIR 1963 SC 1909 there is nothing in Article 226 of the Constitutence preclude a High Court from exercising the power of review which iuheram in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and pulpable errors committed by it. But, there are definitive limits to the exercise of power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due digilence 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 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. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court.”

¶48

It is now well settled principle of law that the scope for review is rather limited and it is not permissible for the forum hearing the review application to act as an Appellate Authority in respect of the original order by a fresh and re-hearing of the

¶49

Page 6 of 10

¶50

RA No. 45 of 2015

¶51

matter to facilitate a change of opinion on merits. The reliance in this regard can be placed on the judgment of the Hon’ble Supreme Court in cases of Parsion Devi and others vs. Sumitri Devi and others (1997) 8 SCC 715, Ajit Kumar Path Vs. State of Orissa (1999) 9 SCC 596, Union of India Vs. Tarit Ranjan Das (2003) 11 SCC 658 and Gopal Singh Vs. State Cadre Forest Officers’ Association and others (2007) 9 SCC 369.

¶52

An identical question came up to be decided by the Hon’ble Apex Court in case of State of West Bengal and others vs. Kamal Sengupta and another (2008) 8 SCC 612. Having interpreted the scope of review and considering the catena of previous judgments mentioned therein, the following principles were called out to review the orders :-

¶53

“ (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.

¶54

(ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise.

¶55

(iii) The expression "any other sufficient reason" appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds.

¶56

(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).

¶57

(v) An erroneous order/decision cannot be corrected in the guise of exercise of power of review.

¶58

(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.

¶59

(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.

¶60

Page 7 of 10

¶61

RA No. 45 of 2015

¶62

(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.”

¶63

Meaning thereby, the original order can only be reviewed, if case strictly falls within the domain of Order 47 Rule 1 C.P.C. read with Section 22 (3) (f) of the Administrative Tribunals, 1985. The case of the applicant is not squarely covered within the legal ambit of the review Order 47 Rule 1 C.P.C. read with Section 22 (3) (f) of the A.T. Act, 1985 regulates the provisions of the review of the order. Thus, it is now settled principle of law that the scope of review is rather limited and is not permissible for the forum hearing the review application. On the basis of above, he requests to dismiss the review application.

¶64

Heard the rival submissions and perused the documents available on record.

¶65

The applicant has filed a Writ–A No.36772 of 2015 before the Hon’ble High Court. The relevant part of the order of Hon’ble High Court of Allahabad is reproduced as below :-

¶66

“ The two grounds raised on behalf of the petitioner do not appeal to us. The service period declared as dies non being excluded, and whether any remedy was sought for against such orders by the petitioner is purely a factual issues. Such issues should necessarily be raised before the tribunal at the first instance for purpose of challenging the order of compulsorily retirement. From the order of tribunal we find that no such ground has been pressed by the petitioner and therefore, there is no finding by the tribunal on the aforesaid aspect of the matter.”

¶67

Page 8 of 10

¶68

RA No. 45 of 2015

¶69

The Hon’ble High Court of Allahabad found no good reason to interfere with the order of the Tribunal and accordingly, dismissed the writ petition. The Hon’ble High Court further added that if the petitioner claims that he had raised such grounds before the tribunal and the tribunal has not noticed the same in the order, the petitioner is at liberty to file a review application.

¶70

In OA No.832 of 2012, the applicant claimed the following relief(s) :-

¶71

“(i) The order of compulsory retirement dated 01.02.2012 be set aside and applicant be reinstated in his original post.

¶72

(ii) Direct the respondents to decide the representations dated 14.02.2012, 24.02.2012 and 17.03.2012 submitted by the applicant at the earliest.

¶73

(iii) Any other relief which this Hon’ble CAT deems fit and proper in the facts and circumstances of the case.”

¶74

On the ground that compulsory retirement against the applicant was wrongly and illegally passed by respondents as the matter was pending consideration before the Hon’ble CAT, Allahabad because the reduction of applicant in rank was subjudice and during the pendency of that order compulsory retirement of the applicant is not justified. Although, while mentioning the facts of the case the applicant has raised the issue of dies-non but in the grounds for relief with legal position, he has not emphasized the above facts. In their judgment, this Tribunal has considered the Section 19 (4) of A.T. Act, 1985 and found that compulsory retirement is altogether a different cause of action

¶75

Page 9 of 10

¶76

RA No. 45 of 2015

¶77

and as such the argument advanced by the learned counsel for the applicant has no legs to stand. The above order has been passed by listening the rival submissions have been scrutinized by the Hon’ble High Court of Allahabad who has not found any ground to interfere with. Moreover applicant had opportunity of appeal/revision available to him against the order of compulsory retirement.

¶78

The applicant has tried to revisit the entire issue which is beyond the scope of the review as even erroneous orders/decisions cannot be corrected in the guise of exercise of power of review. There is no error apparent on the face to be corrected. The Tribunal has decided the OA after listening to parties. Even an erroneous order decision cannot be corrected in review.

¶79

On the basis of above discussions, it is quite clear that the review application filed by the applicant does not have any merit and deserves to be dismissed. Accordingly, the review application is dismissed. No costs.

¶80

All associated MAs also stand disposed of.

¶81

(Mohan Pyare) (Justice B.K. Shrivastava) Member(Administrative) Member(Judicial)

¶82

RKM/

¶83

Page 10 of 10

Arun Kumar Srivastava v. Comptroller and Auditor General of India

Case brief

What is this about?

What did the court decide?

Arun Kumar Srivastava v. Comptroller and Auditor General of India

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

General Manager N C Rly vs Brij Bihari Sharma and Anr.

Gopal Saran vs Cpwd

Subh Lata vs D/O Post

Union of India & Others vs Karmender Kumar

G Samuthiravelu vs M/O Communications

Mahesh Kumar Agrawal vs M/O Railways

Ushasree K v vs the General Manager Southern Railway Hq Office Park Town Chennai

K Sunitha vs Dept of Posts