Wednesday, November 7, 2012

RA No.02/2011 on ????? - 2011


CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH  :  BANGALORE

REVIEW APPLICATION No.02/2011
IN
ORIGINAL APPLICATION No. 525 AND 526 OF 2009

DATED  THIS THE .........DAY OF .............., 2011

HON'BLE SHRI N.D. RAGHAVAN     ...    VICE-CHAIRMAN

HON'BLE SMT. LEENA MEHENDALE    ...         MEMBER (A)

Balakrishna Medi Shetty,
S/o Sri M. Sathaiah,
Aged about 32 years,
Working as Loco Pilot (Goods)-II,
Office of Chief Crew Controller,
South Western Railway,
Bangalore.                                                    ...                     Review Applicant
(By Advocate Shri Izzhar Ahmed)

Vs.
1. C.S. Jayaramaiah,
   S/o Sannathimmaiah,
   aged about 40 years,
   Working as Shunter,
   O/o Chief Crew Controller,
   Satellite Goods Terminal,
   South Western Railway,
   Bangalore Division. Bangalore.

2 Union of India
   through the General Manager,
   South Western Railway,
   Kesawapura, Hubli.

3. The Divisional Railway Manager,
   South Western Railway,
   Bangalore Division, Bangalore.

4. The Senior Divisional Personnel Officer,
   South Western Railway,
   Bangalore Division, Bangalore.

5. M.G. Shayam Singh, Major,
   Working as Loco Pilot/Shunter Gr.II,
   Satellite Goods Terminal,
   South Western Railway,
   Bangalore Division, Bangalore.

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6. Dommaraju Murali, Major,
   Working as Loco Pilot  Shunter Gr.II,
   Satellite Goods Terminal,
   South Western Railway,
   Bangalore Division, Bangalore.

7. Tharappa, Major,  
   Working as Loco Pilot Shunter Gr.II,
   Satellite Goods Terminal,
   South Western Railway,
   Bangalore Division, Bangalore.

8. Vangovolu Rama Rao, Major,
   Working as Loco Pilot Shunter Gr.II,
   Satellite Goods Terminal,
   South Western Railway,
   Bangalore Division, Bangalore.

9. M.V. Ajith Kumar, Major,
   Working as Loco Pilot Shunter Gr.II,
   Satellite Goods Terminal,
   South Western Railway,
   Bangalore Division, Bangalore.

10.R. Ravinder, Major,
   Working as Loco Pilot Shunter Gr.II,
   Satellite Goods Terminal,
   South Western Railway,
   Bangalore Division, Bangalore.

11.Santhosh Ubhayakar, Major,
   Working as Loco Pilot Shunter Gr.II,
   Satellite Goods Terminal,
   South Western Railway,
   Bangalore Division, Bangalore.

12.K. Jitendra Kumar, Major,
   Working as Loco Pilot Shunter Gr.II,
   Satellite Goods Terminal,
   South Western Railway,
   Bangalore Division, Bangalore.

13.Srinivasa Rao Kadali, Major,
   Working as Loco Pilot Shunter Gr.II,
   Satellite Goods Terminal,
   South Western Railway,
   Bangalore Division, Bangalore.


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14.Koteswara Rao Chilka, Major,
    Working as Loco Pilot Shunter Gr.II,
    Satellite Goods Terminal,
    South Western Railway,
    Bangalore Division, Bangalore.

15.Vijayakumar Mahaur, Major,
    Working as Loco Pilot Shunter Gr.II,
    Satellite Goods Terminal,
    South Western Railway,
    Bangalore Division, Bangalore.

16.G. Eswaraiah, Major,
    Working as Loco Pilot Shunter Gr.II,
    Satellite Goods Terminal,
    South Western Railway,
    Bangalore Division, Bangalore.

17. M.D. Nasim Ali, Major,
     Working as Loco Pilot Shunter Gr.II,
    O/o Chief Crew Controller,
    South Western Railway,
    Bangalore.

18. P. Easwaran, Major,
     Working as Loco Pilot Shunter Gr.II,
    Satellite Goods Terminal,
    South Western Railway,
    Bangalore Division, Bangalore.

19. H.C. Jayaram, Major,
     Working as Loco Pilot Shunter Gr.II,
    Satellite Goods Terminal,
    South Western Railway,
    Bangalore Division, Bangalore.

20. V. Krishnanand, Major,
     Working as Loco Pilot Shunter Gr.II,
    Satellite Goods Terminal,
    South Western Railway,
    Bangalore Division, Bangalore.

21. K. Abhed, Major,
     Working as Loco Pilot Shunter Gr.II,
    Satellite Goods Terminal,
    South Western Railway,
    Bangalore Division, Bangalore.

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22. A.A. Sahaya Ramesh, Major,
     Working as Loco Pilot Shunter Gr.II,
    Satellite Goods Terminal,
    South Western Railway,
    Bangalore Division, Bangalore.

23. P. Deepu, Major,
    Working as Loco Pilot Shunter Gr.II,
    Satellite Goods Terminal,
    South Western Railway,
    Bangalore Division, Bangalore.

24. D. Rajkumar, Major,
     Working as Loco Pilot Shunter Gr.II,
    Satellite Goods Terminal,
    South Western Railway,
    Bangalore Division, Bangalore.

25. V. Rajashekar, Major,
     Working as Loco Pilot Shunter Gr.II,
    Satellite Goods Terminal,
    South Western Railway,
    Bangalore Division, Bangalore.

26. K. Rajendra Prasad, Major,
     Working as Loco Pilot Shunter Gr.II,
    Satellite Goods Terminal,
    South Western Railway,
    Bangalore Division, Bangalore.

27. J. Girirao, Major,
    Working as Loco Pilot Shunter Gr.II,
    Satellite Goods Terminal,
    South Western Railway,
    Bangalore Division, Bangalore.

28. D.R. Malayadri, Major,
     Working as Loco Pilot Shunter Gr.II,
    Satellite Goods Terminal,
    South Western Railway,
    Bangalore Division, Bangalore.

29. Chintada Sathyanarayana Rao, Major,
     Working as Loco Pilot Shunter Gr.II,
     Satellite Goods Terminal,
     South Western Railway,
     Bangalore Division, Bangalore.

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30. Jagathkari Gopal Rao, Major,
     Working as Loco Pilot Shunter Gr.II,
    Satellite Goods Terminal,
    South Western Railway,
    Bangalore Division, Bangalore.

31. P. Madhavan, Major,
     Working as Loco Pilot Shunter Gr.II,
    Satellite Goods Terminal,
    South Western Railway,
    Bangalore Division, Bangalore.

32. V. Bhaskar, Major,
     Working as Loco Pilot Shunter Gr.II,
    Satellite Goods Terminal,
    South Western Railway,
    Bangalore Division, Bangalore.

33. P.K. Krishnan, Major,
    Working as Loco Pilot Shunter Gr.II,
    Satellite Goods Terminal,
    South Western Railway,
    Bangalore Division, Bangalore.                       ...                            Respondents
     (Respondents No.02 to 33 are formal/performa respondents in OA No.525/2009)

O R D E R

Hon'ble Smt. Leena Mehendale, Member (A) :


            This RA is filed on 21.04.2011 by Respondent No.4 in OA No.525/2009 in which matter the order was passed on 24.03.2011 and it is in time as per Section 17 of the CAT (Procedure) Rules, 1987, i.e., within 30 days.

2.         Section 17 of the CAT Procedure Rules 1987 deals with applications for review.  Order 7 Rule 1 of CPC deals with Review -(Page 383 The Code of Civil Procedure, 1908 – 2000 Edition, Universal Law Publishing Co. Pvt. Ltd.).  Section 22 (3) (f) of the Administrative Tribunals Act stipulates that: A Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedre, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely,---
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(a) ....
(b)....

(f) reviewing its decisions;

3.         The Review Application is examined in the light of above.
4.         Paras 2, 3 and 4 of the order thereof mention some details of the dates of hearing and the presence of the counsels.  It is seen that these details need a correction on the basis of the actual position as seen from the daily order sheet.  From the order sheet, it is seen that the matter was Part Heard for the first time on 25.8.2010 on which date the learned counsels for all the contesting parties, i.e., the counsel for the applicant, counsel for official respondents and the counsel for private Respondent No.4 were present and participated.  Thereafter, the case was heard once-again on 14.09.2010 on which date also all the counsels were present and argued the case and the arguments were concluded and matter was reserved for orders.  Subsequently, before the orders were pronounced, the learned counsel for official respondents No.1 to 3 prayed for permission to produce some Supreme Court judgments and hence, it was ordered that the two OAs be listed "FOR BEING SPOKEN TO".

5.         Thereafter, a few more adjournments at the request of one of the three counsels  and the matter was heard on 07.12.2010 and once again the order was reserved.  On this date, as revealed from daily order sheet the learned counsel for Respondent No.4 was not present. 

6.         The above position has been slightly incorrectly recorded while preparing the order.  It has been mentioned at para 2 that when the case was heard and reserved for roders on the 1st occassion, the learned counsel for Respondent
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No.4 was not present and at the end of para 4, it is mentioned that when the case was once again heard on 7.12.2010 and reserved, the learned counsel for Respondent No.4 was present and heard. 

7.         Thus, it is clear that the learned counsel for Respondent No.4 was heard on one of the two occassions of final hearing.  His reply statement is on record, which has also been carefully considered while deciding the issue in question.  It is also pertinent that the matter was listed for the second time "For Being Spoken To" only for the reason of taking on record and considering the citations furnished by the learned counsel for Respondents No.1 to 3 and the ratio dicidendi therein. 

8.         In view of all these, it is our considered opinion that despite the small incorrectness in mentioning the presence or absence of the learned counsel for Respondent No.4  on the two relevant dates, viz., 14.9.2010 and 7.12.2010, the issues involved in the matter and their appreciation has not been hampered in any way whatsoever.  The fact remains that the learned counsel for Respondent No.4 had been heard on the 1st occassion and his written reply on record has also been considered.  The actual discussion on the issues involved and the merits of the case are discussed in paras 5 to 9 IV (b) of the order which are not hampered with by the above-said incorrect mentioning of the dates of presence of the learned counsel for Respondent No.4.

9.         It is seen from Section 152 of CPC – Amendment of judgments, decrees or orders:-  Only clerical or arithmetical mistakes in judgmens, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.
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10.       Section 153 of CPC under the heading "General Powers to amend":- would also be interesting to note.  The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.

11.       We therefore, consider it sufficient to make the following modifications in para 2 and para 4 of the order.
(A)       In Para 2, in place of::
"Respondent No.4 who is a private respondent represented by Advocate Shri Izzhar Ahmed who has filed his reply statement, but not present at the time of hearing of the case.",

the order will read as:
"Respondent No.4 who is a private respondent represented by Advocate Shri Izzhar Ahmed who has filed his reply statement was present at the time of hearing of the case and his arguments were heard.",

(B)       In para 4, in place of:
"However, on 28.9.2010, at the request of the learned counsel for the respondents, the case was again posted "For being spoken to" and the arguments was finally concluded on 7.12.2010 and on that day the citations provided by learned counsel for Respondents No.1 to 3 were taken on record and the orders were reserved for pronouncement.  On that day learned counsel for R-4 was present and heard.",

the order will read as:

"However, on 28.9.2010, at the request of the learned counsel for the respondents, the case was again posted "For being spoken to" and the arguments was finally concluded on 7.12.2010 and on that day the citations provided by learned counsel for Respondents No.1 to 3 were taken into consideration and the orders were reserved for pronouncement.  On that day learned counsel for Respondent No.4 was not present ",


(C)       Similarly, it is pointed out at para 7 of the Review Application that in para 7
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of the order Annexure-A/1 of the OA has been referred to.  But, its date has been wrongly mentioned as 20-12-2008 while the correct date is 2-6-2007.

12.       Hence, it is ordered that para 7 of the order of this Tribunal in OA 525 & 526/2009 is corrected to that extent.

13.       Coming to the details of the Review Application, it is seen that the learned counsel for the Review Applicant (original Respondent No.4) has submitted a long Review Application mentioning various grounds which fall in 4 broad categories, A, B, C and D. 

A.        He claims that the incorrect mention of the dates of his presence during arguments in the order in OA No.525/09 and 526/09 is a sufficient ground to allow the Review Application which prays for::
1.            Review its order dated 24.03.2011 in OA No.525/2009 as contained at Annexure-RA/01 and restore the abovesaid OA on the above facts and circumstances of the case, in the interest of justice and equity.

2.            It this Tribunal is not inclined in reviewing the order dated 24.03.2011 in OA No.525/2009, the matter may be referred to full-Bench in view of disagreeing the earlier order dated 13.01.2005 in OA No.17/2005 (Annexure-RA/04) passed by this Tribunal, in the interest of justice and equity.

B.        Since he has not been heard on the 2nd occasion, i.e., on 7.12.2010, the OA should be heard afresh.

C.           All the other paragraphs of the Review Application point out various reasons why the learned counsel for Review Applicant feels that the order passed by this Tribunal is a serious irregularity.

D.           The learned counsel claims that the order of this Tribunal in OA 525 & 526/2009 is in contradiction with one earlier order dated 13.01.2005 in OA
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No.17/2005 at Annexure-RA/04 and hence the matter must be referred to Full Bench.

14.       We have considered all the 4 grounds above.  As far as ground 'A' (supra) is concerned, we are of the considered opinion that the wrong mention of the dates of hearing has no bearing on the merits of the case as discussed in the order.  So far as 'B' (supra) is concerned, the learned counsel for Review Applicant has been fully heard.  As far as the Supreme Court judgments submitted later by the learned counsel for official respondents, we have heard the counsel fully and considered the ratio dicidendi of those citations while writing the orders.  Hence, not hearing the learned counsel for Respondent No.4 on those citations does not affect the order.

15.       As far as 'C' (supra) above is concerned, the remedy for Review Applicant does not lie with this Tribunal, which cannot go into the merits of the case once again after having already come to a certion decision.  If in the opinion of  the learned counsel for Review Applicant, there is any error or irregularity in the judgment, then he should approach the proper appropriate forum.

15.       The learned counsel has also annexed an earlier decision of this Bench in OA No.17/2005 which pertains to a different applicant and a different Ministry on the Respondents' side (BSNL).  The present case is from the Railways and has no connection whatsoever with the earlier OA.  The issue therein for which the OA was dismissed was that the application was pre-mature as no representation has been made as required under Section 20 of the A.T. Act.  The applicant's grievance was not agitated before the concerned authorities.  The main issue in the present matter is whether to allot a particular seniority on the basis of merit or
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on the basis of seniority as per the specific instructions of the Railway Board contained in RBE No.161/2009.

16.       It is pertinent to note that the CAT (Procedure) Rule 24. Orders and directions in certain cases:- The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice.

17.       The aforesaid Rule 24 to be read with Section 151 CPC, which deals with Section 151 of CPC, which deals with "Saving of inherent powers of Court:-"  i.e., Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

18.       Under the aforesaid both the provisions, the Tribunal has got its own powers either to grant the prayer as prayed for or to mould it as it deems fit and proper what might not have been specifically prayed for and that therefore, it could not be argued by the party that if a certain order is prayed to be quashed, it  has to be only either quashed or sustained, but cannot be moulded or modified. 
           
19.       The principle for review of any order is that there should be a factual error in the understanding of the issue and the record and there should not be complete ignorance of any relevant grounds urged in the OA or reply.  Such a thing has not happened in the present matter.  Hence, there is neither any need to review the order nor to grant the interim prayer.   

20.         To sum up, there is no existence of "obvious error or mistake apparent from record" in the order of the Tribunal. It is only claimed in the R.A. The Review
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Applicant, according to us, is not entitled even to be issued with notice for hearing but to be rejected in circulation itself.

21.         In view of the above, MA No.213/2011 also becomes infructuous.

22.       In the result, Review Application is dismissed in limine.  No costs.


                (LEENA MEHENDALE)                                      (N.D. RAGHAVAN)
                        MEMBER (A)                                                VICE-CHAIRMAN


psp.




Section 22 (3) (f) of the Administrative Tribunals Act stipulates that: A Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedre, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely,---

(a) ....
(b)....

(f) reviewing its decisions;


Section 17 of the CAT Procedure Rules 1987 deals with applications for review stipulating under Sub-section (1) that "No application for review shall be entertained unless it is filed within thirty days from the date of receipt of copy of the order sought to be reviewed. 

(2)       A review application shall ordinarily be heard by the same Bench which has passed the order, unless the Chairman may, for reasons to be recorded in writing, direct it to be heard by any other Bench.

(3)          Unless otherwise ordered by the Bench concerned, a review application shall be disposed of by circulation and the Bench may either dismiss the application or direct notice to the opposite party.

(4)          Where an application for review of any judgment or order has been made and disposed of, no further application for review shall be entertained in the same matter.


I.          Order 7 Rule 1 of CPC deals with Review -(Page 383 The Code of Civil Procedure, 1908 – 2000 Edition, Universal Law Publishing Co. Pvt. Ltd.)

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 decaree 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 whenthe 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.


            None of the aforesaid ingredients apply in the instant Review application, thus entitling it even a notice to be issued for hearing.

II.            Explanation may be read for general information and knowledge.


            Thus, Section 22 (3) (f) of Administrative Tribunals Act could be read with CAT (Procedure) Rule 17 and with Order 7 (1) of CPC supra. 

Then, the CAT (Procedure) Rule 24. Orders and directions in certain cases:- The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice.

            The aforesaid Rule 24 to be read with Section 151 CPC, which deals with Section 151 of CPC, which deals with "Saving of inherent powers of Court:-"  i.e., Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

            Under the aforesaid both the provisions, the Tribunal has got its own powers either togrant the prayer as prayed for or to mould it as it deems fit and proper what might not have been specifically prayed for and that therefore, it could not be argued by the party that if a certain order is prayed to be quashed, it cannot be said that it has to be only either quashed or sustained, but cannot be moulded or modified. 

            It is clear from Section 152 of CPC – Amendment of judgments, decrees or orders:-  Only clerical or arithmetical mistakes in judgmens, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.

            Section 153 of CPC under the heading "General Powers to amend":- would also be interesting to note.  The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.

                                                      

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