JUDGMENT
Hima Kohli, J.
1. RA No. 70/2005 has been filed by the petitioner/applicant praying inter alia for review of the order dated 29th May, 2003 whereby, notice was directed to be issued to the respondents limited to the point whether principle of natural justice was violated in not issuing any show cause notice to the petitioner/applicant by the Disciplinary Authority while disagreeing with the report of the inquiry officer.
2. Counsel for the petitioner/applicant submitted that after passing of the aforesaid order, the respondents filed a short counter affidavit in October, 2003 strictly limiting their counter affidavit to the point on which notice to show cause was issued and that they did not submit a detailed counter affidavit. As a result, when the matter came up for hearing before the court on 10th August, 2004 and the counsel for the petitioner/applicant wanted to argue the entire case, the court declined to grant permission to the petitioner to argue other issues and that only thereafter, the counsel for the petitioner/applicant tried to contact the petitioner, who had gone to his native place in Bihar, to obtain instructions and decide the next course of action. It was submitted that he could obtain instructions from the petitioner only on 10th December, 2004 and soon thereafter, the present review application was filed by him.
3. The review application is accompanied by an application (CM No. 2906/2005) seeking condensation of delay of one year 5 months and 13 days in filing the review application in respect of the order dated 29th May, 2003. It is stated in the application that the counsel for the petitioner/applicant tried to contact his client to take further instructions but could obtain instructions only on 10th December, 2004, as the petitioner/applicant was out of employment and had gone to his native place in Bihar. It is stated in the application that as soon as the counsel for the petitioner/applicant received the instructions to file the review application, the same was filed.
4. It was urged by the counsel for the petitioner/applicant that the petitioner/applicant cannot be ousted at the preliminary stage by issuance of a limited notice to show cause, and that there were many important points and issues of law in the case which were raised in the writ petition that need to be considered by the court in the interest of justice. Counsel for the petitioner/applicant submitted that only because of the fact that at the time of admission, he did not argue the writ petition beyond the point of non-observance of the principles of natural justice by the Disciplinary Authority, the same could not be taken to mean that the notice to show cause could be confined to the said issue alone and that he ought to be permitted to argue all other points raised in the writ petition. Support is sought to be drawn from the judgment of the Calcutta High Court in the case of Eastern Railway Employees’ Congress v. General Manager, Eastern Railway and Ors. reported as . Counsel for the petitioner also relied upon a judgment of this Court in the case of Delhi Pradesh Taxi Union and Anr. v. Airport Authority of India reported as 2003 IV AD (DELHI) 713, to state that the scope of review application permitted the court to prevent miscarriage of justice and to rectify an order which could prejudice any one.
5. The aforesaid arguments of the counsel for the petitioner/applicant were vehemently opposed by the counsel for the respondents who submitted that no ground whatsoever had been made out by the petitioner for condensation of delay in filing the review application, nor were any cogent reasons given therein for condoning a delay of almost a year and a half. It was further stated that on the relevant date i.e. 29th May, 2003, counsel for the respondents was present in court on the basis of advance notice and the matter was argued at some length. It was further submitted that after hearing the parties, the court was persuaded to issue notice only limited to the point of violation of principles of natural justice, in the absence of any show cause notice to the petitioner by the Disciplinary Authority while disagreeing with the report of the Inquiry Officer. Hence, the petitioner cannot be heard to say that arguments were addressed only on one point. She submitted that the question of petitioner/applicant facing difficulty on passing of the order dated 10th August, 2004 and then contemplating filing of the review application is without any basis and that the correct position is that the petitioner/applicant got wiser after perusing the counter affidavit filed by the respondents stating inter alia, that the principles of natural justice had not been violated in the case and that only thereafter did he decide to file the review application.
6. I have heard the counsels for the parties.
7. Before adverting to the pleas of the counsel of the petitioner/applicant, it is relevant to note the sequence of events. Vide order dated 29th May, 2003, notice to show cause was issued on a limited point, of which review is sought by the petitioner/applicant. The petitioner/applicant was entitled to seek review of the said order within thirty days from the date of the order which expired on 28th June, 2003. No steps were taken by the petitioner/applicant during the time permitted to him. The order sheet reflects that reply to show cause notice was filed by the respondent on 14th October, 2003, pursuant to which the petitioner/applicant took time to file rejoinder. On 10th March, 2004, the court ordered that there was no requirement for rejoinder in view of the fact that the only issue that had to be decided was that whether the petitioner/applicant was issued a show cause notice by the Disciplinary Authority and that whether reasons for disagreeing with the report of the Inquiry Officer were indicated with sufficient particulars or not. The matter was adjourned to 10th August, 2004 On 10th August, 2004, the court took notice of the previous orders dated 29th May, 2003 and 10th March, 2004 and rejected the contention of the counsel for the petitioner that limited notice had been issued at the admission stage only for the time being. It was observed that the previous two orders were clear as the notice to show cause had been issued confined to a specific point only. With these observations, the matter was directed to be placed for final disposal in the category of `after notice miscellaneous matters’.
8. The present application seeking review has been filed by the petitioner/applicant only on 13th December, 2004 i.e. after a lapse of almost one and a half years. The explanation furnished by the petitioner for seeking condensation of delay, is to say the least, extremely ambiguous and vague. The claim of the petitioner that till the passing of the order dated 10th August, 2004, the petitioner/applicant or his counsel could not comprehend that the petitioner/applicant would be faced with any difficulty in view of a limited notice to show cause having been issued at the stage of admission, is quite untenable. Further, contention of the counsel for the petitioner/applicant to the effect that he had tried to contact the petitioner/applicant to take further instructions to decide the next course of action and that he could do so only on 10th December, 2004 (i.e. after a gap of 15 and ? months from the order dated 29th May, 2003, nine months from the order dated 10th March, 2004 and four months from the order dated 10th August, 2004), merely because the petitioner had gone to his native in Bihar, does not cut any ice. In today’s day and time, when the network of communication in the country is so wide spread and fast that every corner of the country is well connected, the counsel for the petitioner cannot be heard to say that only because the petitioner had gone to his native place in Bihar, no contact could be made with him. In the absence of any specific details furnished by the petitioner about the location of his native place in Bihar, the remoteness thereof is only a matter of conjecture. No cause, much less sufficient cause has been shown by the petitioner, to condone the delay in filing the application. The application is patently barred by time.
9. Even on merits, the plea raised on behalf of the petitioner/applicant to the effect that only when difficulty was faced on passing of the order dated 10th August, 2004 that the petitioner/applicant contemplated filing an application of review, is rather filmsy. This plea cannot be a ground for seeking review of the order dated 29th May, 2003.
10. It is trite that the scope of review jurisdiction is very limited. The power of review may be exercised when there is some mistake or error apparent on the face of the record or in case of discovery of new and important matters of evidence which, even after exercise of due diligence, was not within the knowledge of the person seeking review at the time when the initial order was made. But on a ground that the decision was erroneous on merits, exercise of the power of review is not permissible. Power of review is not an appellate power nor is it a power to substitute a view taken in a previous order. Reference in this regard is made to the following judgments:
(i) Thungabhadra Industries Ltd. v. Govt. of A.P. .
(ii) Aribam Tuleshwar Sharma v. Aibam Pishak Sharma .
(iii) Meera Bhanja v. Nirmala Kumari Choudhury .
(iv) Persion Devi and Ors. v. Sumitri Devi .
(v) Lily Thomas v. Union of India .
11. In the present case, the plea of the counsel for the petitioner/applicant to the effect that confining of the notice to show cause on a single point was not permissible and that the petitioner/applicant cannot be ousted at the preliminary stage in such a manner, if taken into consideration while exercising review jurisdiction shall amount to exercising appellate powers on merits of the order which is not permissible.
12. Reliance placed by counsel for the petitioner/applicant on the judgment in Eastern Railway Employees’ Congress (supra) is misplaced as in the said case, the plea of the counsel for the respondent therein that since rule nisi was confined only to one ground taken by the petitioner therein, he should not be allowed to urge any other ground, was rejected by the court as it was held that said ground on which notice to show cause was issued, itself contained two parts and the plea of the petitioner/applicant therein was a part of the same ground. Such is not the situation in the present case. Similarly, reliance placed by the counsel for the petitioner/applicant on the judgment in the case of Airport Authority of India (supra) is also of no help to the petitioner as even in the said judgment, the court held that it cannot sit as an appellate court over its own decision so as to rehear and correct a decision which it feels was erroneous. It was observed in the said judgment that the power of review is exercised to remove an error and not to disturb the finality. An exception that has been carved out is only to correct accidental mistake or miscarriage of justice.
13. In the present case, the petitioner/applicant is invoking the power of review of this Court not to remove an error, but to disturb the finality of the order dated 29th May, 2003, which is not permissible. There is neither any accidental mistake which is sought to be rectified nor is there an abuse of process that needs to be remedied. It is not denied by the counsel for the petitioner/applicant that at the admission stage arguments were addressed by both sides before notice to show cause was issued. If the petitioner/applicant had any grievance against the order dated 29th May, 2003 limiting the notice to show cause, it was for him to seek his remedy by way of filing an appeal, which he chose not to exercise. However, a review application cannot be treated as a substitute for an appeal. Entertaining such an application shall amount to granting a rehearing to the petitioner, for locating an error in the earlier decision that is not self evident, but would require undertaking a process of reasoning, which is well beyond the ambit of review. The contention of the counsel for the petitioner/applicant that the import of the order dated 29th May, 2003 dawned on the petitioner/applicant only upon being confronted by the order dated 10th August, 2004, is also misconceived, particularly in the light of the earlier order dated 10th March, 2004 wherein the order dated 29th May, 2003 was reiterated.
14. In this view of the matter, the present review application is rejected as being patently barred by time as also for the reason that the petitioner/applicant has failed to make out any case for exercising powers of review vested in this Court. Both the applications are accordingly dismissed.
WP(C) No. 3714/2003
List this matter on 15th May, 2007 for further proceedings.