UNION OF INDIA vs DR SUCHITA NINAWE
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ REVIEW PET. 33/2024 in W.P.(C) 12483/2023
UNION OF INDIA ….. Petitioner
Through: Mr. Nitinjaya Chaudhary, Sr. Panel Counsel with Mr.Gokul Sharma, G.P. and Mr. Rahul Maurya, Adv.
versus
DR SUCHITA NINAWE ….. Respondents
Through: Mr. Ankit Jain, Adv
% Date of Decision: 22nd March, 2024
CORAM:
HON’BLE MR. JUSTICE V. KAMESWAR RAO
HON’BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
J U D G M E N T
MANMEET PRITAM SINGH ARORA, J: (ORAL)
CM APPL. 6302/2024 (for exemption)
Allowed, subject to all just exceptions.
Accordingly, the present application stands disposed of.
REVIEW PET. 33/2024
1. The present review petition has been filed by the Respondent (review petitioner) seeking review of the judgment dated 23.11.2023 passed by this Court, whereby, the order dated 10.05.2023 passed by the Central Administrative Tribunal (Tribunal) in O.A. No. 2944/2022 was set aside; and the recovery order dated 31.12.2021 issued by Department of Expenditure, Ministry of Finance (DoE) was upheld.
2. Learned counsel for the review petitioner states that the findings at paragraph nos. 18.3 and 19 of this Courts judgment dated 23.11.2023 suffer from an error on the face of the record. He states that the observations of this Court that the attention of the Division Bench, which decided the writ petition bearing W.P.(C) No. 23 of 2021 titled as Union of India vs. S.P. Singh was not drawn to the judgment of Supreme Court in State of Punjab vs. Rafiq Masih (White Washer) (2015)1, is incorrect. He states that the review petitioner has accessed the paper book of W.P.(C) No. 23 of 2021 and it is noted that at Ground K of the said writ petition, the Union of India had specifically placed reliance on the judgment in Rafiq Masih (White Washer) (2015) (Supra). He states that therefore, the Division Bench, which decided W.P.(C) No. 23 of 2021 was aware of the judgment of Rafiq Masih and the reasons recorded by this Court in its judgment dated 23.11.2023 for not following the judgment of S.P. Singh (Supra) is erroneous.
2.1. He states that there is an apparent conflict in the judgment of this Court in the present writ petition with the judgment of the Division Bench in S.P. Singh (Supra) and therefore, the appropriate course is to refer this matter to a larger Bench. He states that this would be in conformity with principle of judicial discipline and propriety as held by Supreme Court in its recent pronouncement in Mary Pushpam vs. Telvi Curusumary and Ors.2.
2.2. In addition, he states that even on merits, the DoEs recovery order dated 31.12.2021 is illegal. He states that as per office memorandum (OM) dated 28.01.1994 and subsequently revised OMs dated 03.10.1997 and 29.08.2008, officers at the level of Joint Secretary and above are entitled to staff car or transport allowance. He states that Scientists G is a Secretariat Appointment by ACC of the rank of Joint Secretary and are therefore, entitled for staff car or transport allowance. He states that none of the OMs of DoE, which regulate the grant of transport allowance can be read to infer non-entitlement of Scientists G in scientific Ministries/Departments.
2.3. He states that the Petitioner has concealed a material fact with respect to OM dated 07.04.2017. He states that there was a consensus decision taken to pay transport allowance to Scientists G at par with Joint Secretary level.
3. Having heard the learned counsel for the review petitioner, we are of the considered opinion that no ground for review has been made out.
4. The contention of the review petitioner that the finding returned by this Court at paragraph nos. 18.3 and 19 suffers from an error apparent on the face of record is incorrect. There is no dispute that the judgment of the Division Bench in S.P. Singh (Supra) does not refer to the judgment in Rafiq Masih (White Washer) (2015) (Supra). The submission of the review petitioner is that since the Ground K of W.P. (C) No. 23 of 2021 refers to the judgment of Rafiq Masih (White Washer) (2015) (Supra), it is to be presumed that the said judgment was brought to the attention of the Division Bench and the judgment in S.P. Singh (Supra) was passed after considering it. We are unable to accept this submission of the review petitioner for two reasons. Firstly, the challenge to the findings of this Court at paragraph nos. 18.3 and 19 on the aforesaid basis is not an error apparent on the face of record. The review petitioner seeks a review on the basis of an examination and appreciation of the pleadings in W.P. (C) No. 23 of 2021 which is beyond the scope of review. Second, it is trite law that to consider the precedential value of a judgment, the same is to be read and understood from what is stated therein. The judgment of Division Bench in S.P. Singh (Supra) does not record any argument of Union of India with respect to the ground K, relied upon by the review petitioner herein. The said judgment contains no reference to the judgment of Rafiq Masih (White Washer) (2015) (Supra) or the principles laid down therein and therefore, it is not possible to presume that the judgment in S.P. Singh was passed after considering the law laid down in Rafiq Masih (White Washer) (2015) (Supra). The judgment is the only record of what transpired before the Division Bench, which passed the judgment in S.P. Singh (Supra) and neither the review petitioner nor this Court can speculate on the arguments considered by the said Division Bench.
5. The Supreme Court in Mohd. Akram Ansari v. Chief Election Officer3 held that there is a presumption in law that a Judge in his/her judgment deals with contentions that are argued and pressed before it; and not all the grounds in the memorandum of petition or appeal. The Supreme Court held that if a ground which finds mention in the memorandum of petition or appeal has not been adjudicated upon by the Judge in his/her judgment, it is presumed that the said ground was never pressed before the concerned Judge. We are thus, of the considered opinion that the contention of the review petitioner that due to ground K of W.P. (C) No. 23 of 2021, there is a presumption that the judgment in Rafiq Masih (White Washer) (2015) (Supra) was considered by the Division Bench in S.P. Singh (Supra) is without any merit.
6. There is no doubt about the principle of law on judicial discipline and propriety laid down by Supreme Court in Mary Pushpam (Supra); however, the reasons for not following the judgment of S.P. Singh (Supra) have been duly set out in the impugned judgment dated 23.11.2023.
7. The remaining grounds in the review petition challenge the DoEs order dated 31.12.2021 on merits. In this regard, we may note that the correctness of DoEs order dated 31.12.2021 holding that there was an over-payment made to the Respondent has been upheld even by the Tribunal in its order dated 10.05.2023 and was not a subject matter of challenge in the writ petition. The Tribunal interfered in the recovery effected in pursuance of the DoEs order dated 31.12.2021 only on the ground that since the over-payment of TA was made erroneously and not on account of any fraud or mis-representation by the Respondent, the same is not liable to be recovered in view of the judgment of the Division Bench of this Court in Union of India vs. J.S. Sharma4. The judgment in J.S. Sharma (Supra) was passed before Rafiq Masih (White Washer) (2015) as already discussed in the impugned judgment dated 23.11.2023.
8. Thus, review petitioners challenge to the DoEs order dated 31.12.2021 for the first time in the review petition cannot be entertained.
9. Accordingly, the present review petition is dismissed.
MANMEET PRITAM SINGH ARORA, J
V. KAMESWAR RAO, J
MARCH 22, 2024/rhc/aa
1 2015 4 SCC 334
2 2024 SCC OnLine SC 9 (Para 1)
3 (2008) at para 7
4 2013: DHC:4402-DB
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