DR. AMIT KUMAR vs BHARATI COLLEGE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order: 22nd October, 2024.
+ W.P.(C) 3644/2020
DR. AMIT KUMAR …..Petitioner
Through: Mr. Vishwendra Verma and Ms. Shivali, Advocates.
versus
BHARATI COLLEGE …..Respondent
Through: Ms. Beenashaw Soni with Ms. Mansi
Jain, Advocates.
CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
CHANDRA DHARI SINGH, J (Oral)
CM APPL. 13679/2024 (seeking directions to delete the contradictory paragraphs as well as findings).
1. The instant application under Section 152 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter CPC) has been filed on behalf of petitioner/applicant seeking rectification of the clerical errors, deletion of the contradictory paragraphs of the impugned judgment dated 13th February, 2024, passed in the captioned writ petition, as well as the findings/conclusion made in the said judgment which are perverse and contradictory from the record.
2. It is pertinent to note here that on the oral request of the learned counsel appearing on behalf of the applicant/petitioner, the Predecessor Bench of this Court, vide order dated 5th March, 2024, observed that the instant application shall be treated as a review application under Order XLVII Rule 1 read with Section 151 of the CPC. Therefore, this Court shall adjudicate the present matter under the provisions of Order XLVII of the CPC, i.e., the review jurisdiction of this Court.
3. The brief facts that led to the filing of the instant application are that the petitioner had filed the captioned writ petition seeking quashing of letter dated 4th March, 2020 and audit memo dated 20th January, 2020 by virtue of which the respondent college had sought recovery of overpaid amount from the petitioner, the said prayer was allowed by this Court vide the impugned judgment. The petitioner had further sought directions to the respondent to pay the complete salary of the petitioner along with the increments and the said prayer was rejected. Ultimately, the writ petition was partly allowed and disposed of.
4. Learned counsel appearing on behalf of the applicant/petitioner submitted that the impugned order contains certain observations and findings which are contrary to the material available on record and the instant application has been filed seeking correction of the said contradictory observations.
5. It is submitted that in paragraph no. 90 of the impugned judgment, this Court allowed prayer a and held that the overpaid amount to the petitioner cannot be recovered since at the time of issuance of the audit memo dated 20th January, 2020, and the order dated 4th March, 2020, the petitioners suspension was not approved by the Vice Chancellor. In this regard, it is further submitted that the petitioner was never suspended by the competent authority as per the Delhi University Ordinances XII-3A Clause 6 and Clause 7 of Ordinance XII as per which the appropriate authority for suspending/terminating the petitioner is only the Vice Chancellor.
6. It is submitted that in the impugned judgment, this Court in paragraph no. 85, 86 and 90 gave an impression that the petitioner was suspended, however, as stated above, only the Vice Chancellor is the competent authority and since the Vice Chancellor never approved the petitioners suspension, the petitioner cannot be stated to be suspended, thus the said observation of this Court is incorrect.
7. It is submitted that since the petitioners suspension was never approved by the Vice Chancellor, hence, no such decision was ever communicated to the petitioner and the same is clear from this Courts order dated 22nd June, 2020, therefore, the petitioner is entitled for complete salary and all benefits as per the law.
8. It is submitted that the letters dated 18th December, 2020 and 23rd December, 2020, vide which the petitioner was compulsorily retired are under challenge in another writ petition bearing W.P (C) no. 586/2021 and the same is pending adjudication before this Court. It is further submitted that by quoting the above said communication in the impugned judgment, this Court has damaged the petitioners image as well as the subject matter of the other writ petition.
9. It is submitted that the petitioners compulsory retirement was illegally approved on 18th December, 2020 and thus, the petitioner is entitled for the complete salary prior to the said date. Further, as the petitioner is entitled for seven non-compoundable increments for M.Phil and Ph.D qualification (two+five) respectively. Hence, it is clarified that the paragraphs no. 76-77, 79 and 88 of the impugned judgment warrants correction and the respondent college is legally bound to pay all the increments, dues and arrears etc. to the petitioner.
10. It is submitted that by virtue of paragraph no. 85 of the impugned judgment, this Court has taken contradictory views with respect of the recovery of amount of Rs.6,42,131/- as shown in the judgment that the overpaid amount cannot be recovered prior to the date of approval of the suspension of the petitioner. It is clear cut admission of the respondent college that the petitioners suspension was never duly approved.
11. It is submitted that this Court in paragraph no. 87 – 88 of the conclusion said that ‘petitioner is not entitled to receive any TA since the petitioner had been sent on forced leave since february 2018 and TA is only granted to individuals who have attended college for one day in a calendar month’ and this Court in paragraph no. 11 of the factual matrix said ‘Pursuant to the same, the petitioner made several representations, requesting the respondent college to permit the petitioner to rejoin his duties and further requested that he is entitled to his monthly salary alongwith arrears/ increments as there was neither any sanctioned suspension … ‘ & in paragraphs no. 63-64 and 71 of the Analysis and Findings, this Court said ‘when there is no power with the governing body to suspend a person and prior approval of the Vice Chancellor is needed for this purpose, there cannot be said to be any power with the governing body to force a person to go on leave and not to take work from him .. ‘. Thus, it is clear that this Court gave contradictory views on above paragraphs and the petitioner is entitled for Travel Allowance (hereinafter TA) and other benefits as per law.
12. It is submitted that as per paragraph no. 81 of the impugned judgement, it is mentioned that as per the OM dated 7th July, 2017 ‘TA is not admissible to an individual who is on leave or during suspension’. Here it is important to clarify that the petitioner is neither on leave nor under suspension and hence, the petitioner is entitled for double amount of TA from the date of appointment to 18th December, 2020 i.e. the date of approval of petitioners compulsory retirement.
13. Therefore, it is prayed that the present application may be allowed and the reliefs be granted as prayed for.
14. Per Contra, the learned counsel appearing on behalf of the respondent college vehemently opposed the instant application submitting to the effect that the same, being devoid of any merit, is liable to be dismissed.
15. It is submitted that the petitioner has failed to put forth any propositions in the impugned judgment to show any error apparent on the face of the record, and thus, no ground for review is made out.
16. It is submitted that by way of the present application, the petitioner is trying to get the fresh adjudication of the matter. Under the guise of review, the petitioner cannot be permitted to re-agitate and re-argue the question which have already been addressed and decided.
17. It is submitted that vide letter dated 4th March, 2020, the respondent college, in view of the audit objections raised by the government of NCT of Delhi, started making deductions in salary of the petitioner and sought for recovery of overpaid amount.
18. It is further submitted that this Court, in the captioned writ petition, vide interim order dated 22nd June, 2020 stayed the operation of the letter dated 4th March, 2020 and after passing of the said order, the respondent college immediately stopped the deductions made in terms of the letter dated 4th March, 2020, and in fact paid the entire salary as was paid to the petitioner before issuance of the letter dated 4th March, 2020 and also paid back the deducted amount in terms of the letter dated 4th March, 2020. Thus, the respondent college has cleared all the salary arrears of the petitioner till 6th February, 2018.
19. It is submitted that paragraphs no. 75, 76 and 90 of the impugned judgment nowhere gives an impression that the petitioner was suspended and the said paragraphs are only reflecting that the respondent college cannot recover the overpaid amount of Rs. 6,42,131/- from the petitioner since the same had been paid to him prior to the suspension being approved by the Vice Chancellor.
20. It is submitted that the prayer (c) of the petition stands satisfied as all the deducted amount has been paid back to the petitioner. The prayer (b) of the writ seeks the entire salary to be paid to petitioner. The entire salary of the petitioner stands paid till the date of compulsory retirement of the petitioner, i.e., 20th December, 2020 (except for TA and increment). The petitioner has been paid TA and increment till the time he attended the college, i.e., 6th February, 2018. The employee becomes entitled for the TA and increment only if they continue the service not otherwise. It is submitted that during such period (suspension or being absent from the duty) all the benefits and privileges attached to the post stands withdrawn and temporarily suspended unless the period of absence is considered as period spent on duty.
21. It is submitted that the petitioner is interpreting the judgment wrongly and there are no contradictions in the judgment given by this Court. It is further submitted that this Court has consistently observed in various paragraphs of the judgment that the petitioners suspension was not approved by the Vice Chancellor at time of audit and order dated 4th March, 2020 and thereby, the overpaid payment cannot be recovered.
22. Therefore, it is prayed that the present application may be dismissed.
23. Heard the learned counsel appearing on behalf of the parties and perused the material available on record.
24. Before adverting to the merits of the present matter, it is appropriate to set out the relevant laws pertaining to the issue in hand.
25. It is a well settled principle of law that the power of review is exercised in cases where there is an error apparent on the face of the record and in such an event the order or judgment can be corrected. The provisions of review, as given under Order XLVII of the CPC also prescribes that a judgment or an order may also be subjected to review and rectified if new evidence and facts have come to light which could not be brought up before the Court earlier despite due diligence. In case perusal of the said new evidence and facts requires the Court to change its view taken in the earlier judgment, the same could be done in the review jurisdiction.
26. However, while exercising the powers of review, a Court cannot act as an appellate Court for its own judgments, nor can it allow the petitions for review based only on the claim that one of the parties believes the judgment is proved to be bane for them. Furthermore, the Court, under the review jurisdiction, cannot allow the parties to re-agitate or re-argue the matter on merits as the same is not the mandate of the review jurisdiction.
27. If the matters that the Court has already adjudicated upon could be reopened and reheard, the same would be detrimental to the public interest. The same was also held in the judgment of Kamlesh Verma v. Mayawati, (2013) 8 SCC 320, where the Honble Supreme Court carved out the essential principles qua review and held as under:
14. Review of the earlier order cannot be done unless the court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. This Court in Col. Avtar Singh Sekhon v. Union of India [1980 Supp SCC 562 : 1981 SCC (L&S) 381] held as under: (SCC p. 566, para 12)
12. A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. In Sow Chandra Kante v. Sk. Habib [(1975) 1 SCC 674 : 1975 SCC (Cri) 305 : 1975 SCC (L&S) 184 : 1975 SCC (Tax) 200] this Court observed: (SCC p. 675, para 1)
1.
A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.
The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality.
15. An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. This Court in Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715] held as under: (SCC pp. 718-19, paras 7-9)
7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. [AIR 1964 SC 1372] this Court opined: (AIR p. 1377, para 11)
11. What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an error apparent on the face of the record. The fact that on the earlier occasion the court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an error apparent on the face of the record, for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by error apparent. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.
8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury [(1995) 1 SCC 170] while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma [(1979) 4 SCC 389] this Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.
9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise.
(emphasis in original)..
28. Perusal of the aforesaid extracts of the judgment states that the review Courts scope of interference is extremely limited and the Court must be cautious to not act as an appellate Court as the party dissatisfied with the order/judgment may change the order/judgment under the guise of review petition whereas the said grounds might be grounds for appeal. Therefore, it must be borne in mind that an error which is not apparent on the face of the record and is not self-evident, and if the said error has to be determined by a process of reasoning, exercising review powers in such case is impermissible as rehearing of concluded matters cannot be allowed.
29. Now adverting to the merits of the instant application/review petition.
30. It is the case of the petitioner that the impugned order contains observations and findings contradictory to the record, prompting the current application/petition for correction of the erroneous paragraphs of the impugned judgment. It has been submitted that in paragraph no. 90 of the impugned judgment, this Court allowed prayer a and ruled that the overpaid amount to the petitioner cannot be recovered, as the petitioners suspension was never approved by the Vice Chancellor. The petitioner was not suspended by the competent authority as per Delhi University Ordinances XII-3A Clause 6 and Clause 7 of Ordinance XII, which designate the Vice Chancellor as the only authority to suspend or terminate the petitioner. It has been also argued that in paragraphs no. 85, 86, and 90 of the impugned judgment, this Court incorrectly implied that the petitioner was suspended, which is inaccurate since the Vice Chancellor never approved the suspension. Thus, the petitioner is entitled to full salary and benefits.
31. It has also been contended that the letters dated 18th December, 2020 and 23rd December, 2020, regarding the petitioners compulsory retirement, are under challenge in another writ petition, and citing these letters in the impugned judgment has damaged the petitioners reputation and affected the other case. The petitioners compulsory retirement was allegedly approved illegally, and till then, the petitioner is entitled to full salary. Regarding increments, it has been submitted that paragraphs no. 76-77, 79, and 88 of the impugned judgment require correction, as the petitioner is entitled to specific increments and arrears, which have not been granted.
32. Moreover, paragraph no. 85 contains contradictory statements regarding the recovery of Rs. 6,42,131, indicating the overpaid amount cannot be recovered before the approval of the petitioners suspension, which was never approved. Further, paragraphs no. 87-88 state that the petitioner is not entitled to TA, as TA is granted only when attending college for at least one day in a calendar month. However, other portions of the judgment suggest the governing body lacked the power to force leave or prevent the petitioner from working without the Vice Chancellors approval, thereby, entitling the petitioner to TA and other benefits. Paragraph no. 81 also states TA is not admissible during leave or suspension, but the petitioner was neither on leave nor suspended, making them eligible for double TA from the date of appointment until 18th December, 2020.
33. In rival submissions, the respondent college has refuted the contentions advanced on behalf of the petitioner and submitted that the grounds taken by the petitioner in the instant application are nothing but grounds for appeal and the same is outside the purview of the scope of review. It has also been submitted that the impugned judgment has rightly appreciated the facts and settled position of law, and there is no error apparent on the face of the record.
34. This Court has perused the entire material available on record including the relevant paragraphs of the impugned judgment and the contents of the instant application.
35. Upon perusal of the paragraph no. 84 of the impugned judgment, it is made out that this Court had duly observed therein that the petitioner has not challenged his termination.
36. Further, this Court has clearly noted in paragraph no. 85 of the judgment that in the captioned writ petition, the only decision passed was that the recovery of the aforesaid amount cannot be allowed to be made as at the time of issuing the order dated 4th March, 2020 and memo dated 20th January, 2020, approval of the vice chancellor regarding the petitioners suspension was pending. Furthermore, in paragraph no. 86 of the judgment, it was observed that there is a prescribed process which is to be followed in cases of suspension etc. and since the process was not completed until 18th December, 2020, the respondent college cannot seek recovery of any amount paid to the petitioner earlier. Therefore, in view of the above, no case for review is made out.
37. The petitioner has also stated in the instant application that prayer c of captioned writ petition was not granted. In the said prayer, the petitioner had sought directions to the respondent college to refund the deducted amount vide the impugned order as per Annexure P1 (Colly).
38. The said annexure, i.e., letter dated 4th March, 2020 and audit memo dated 20th January, 2020, which was under challenge in prayer a of the captioned writ petition stated that an over payment of Rs. 6,42,131/- is recoverable and that the petitioner will get only subsistence allowance. It is pertinent to mention here that the ultimate relief granted to the petitioner in the impugned judgment was setting aside of the said letter and memo [Annexure P1 (Colly)].
39. With regard to the above, the respondent college has submitted that the prayer (b) of the writ seeks the entire salary to be paid to petitioner and the prayer c of the petition stands satisfied as all the deducted amount has been paid back to the petitioner already.
40. In reply to the instant application, in paragraph no. 3, it has been submitted by the respondent college that the entire salary of the petitioner stands paid till the date of compulsory retirement of the petitioner approved on 18th December, 2020 except for TA and increments.
41. Upon perusal of the aforesaid, it is observed by this Court that the petitioner has been paid TA and increment till the time he attended the college, i.e., 6th February, 2018. Further, as submitted by the respondent, an employee becomes entitled for the TA and increment only if they continue the service not otherwise. Further, during such period (suspension or being absent from the duty) all the benefits and privileges attached to the post stands withdrawn and temporarily suspended unless the period of absence is considered as period spent on duty.
42. It is pertinent to state here that in paragraph no. 80, 81 and 82, this Court, while referring to Annexure CM-1 and RAA-2 (appended with the writ petition), observed that as per the Office Memorandum dated 7th July, 2017 issued by the Ministry of Finance, Government of India, it has been clearly stipulated that TA is not admissible to an individual who is on leave or during suspension; hence any question pertaining to payment of TA to the petitioner does not arise. It is also evident that 5 non-compounding advance increments had been extended to the petitioner at the time of his appointment since he already possessed M.Phil. and Ph.D degree at that time.
43. Moving further, in paragraph no. 87 and 88 of the impugned judgment, while observing that any individual who is on leave or under suspension cannot be granted TA as per the rules governing individuals employed by the colleges under the UGC, it was held by this Court that insofar as the grant of increments is concerned, as per the documents on record, evidently the petitioner has been granted the mandated increments at the time of his joining. Thus, this Court is of the view that the petitioners contention in this regard does not hold any water.
44. Therefore, keeping in view the aforesaid facts and circumstances as well as the observations made hereinabove, this Court is of the view that the petitioners contention qua the direction to release the dues of salary along with the increments is unsustainable as no such error in regard to the said aspect is apparent from the face of the record and neither has the petitioner put forth any new evidence or facts to seek review of the said decision. Accordingly, it is held that whatever grounds the petitioner has raised before this Court herein are prima facie grounds for appeal and thus, cannot be entertained by this Court.
45. It is observed that the present application is an appeal in the garb of a review petition. The petitioner has put forth various contentions and the same seems to be grounds for appeal because in order to deal with the said contentions, this Court shall be required to go into the reasoning and detailed discussion which is impermissible for this Review Court. Since the petitioner has failed to produce any new evidence to support his arguments, the same cannot be dealt with under Order XLVII of the CPC due to the limited scope of intervention.
46. It is held that the entire facts of the present dispute have been rightly taken into consideration in the impugned judgment and the law has also been rightly appreciated. The petitioner cannot be permitted to dispute the findings in the impugned judgment just because he is dissatisfied with the reasoning provided therein. In view of the same, this Court is of the considered view that the petitioner has failed to make out a case for review and therefore, the instant petition is liable to be dismissed.
47. At this juncture, it is pertinent to mention here that the petitioner has stated that he was never suspended, instead, he was compulsory retired from his services on 18th December, 2020 and in this regard, the petitioner seeks correction in certain paragraphs of the impugned judgment wherein it has been inadvertently mentioned that the petitioner was suspended.
48. This Court is of the view that the aforesaid contention of the petitioner has merit and the said error is apparent from the face of the record. Therefore, as the record reveals that on 18th December, 2020, the petitioner was only compulsory retired, therefore, contents of the paragraphs no. 60, 61, 68, 73, 85 and 86 of the impugned judgment shall stand corrected and rectified. It is made clear that wherever, in the said paragraphs, it has been implied that the petitioner was suspended, the same shall now be read as compulsory retired.
49. It is pertinent to mention here that in the impugned judgment, the primary issue was with regard to the legality of the issuance of letter dated 4th March, 2020 and memo dated 20th January, 2020 and this Court had held that the said letter and memo are not sustainable in the eyes of law as the same were issued without taking into consideration that the petitioners suspension had not been approved, thus, no amount can be recovered by the respondent college from the petitioner. Further, the other issue, which pertained to the release of full salary along with TA and increments was also dealt with on merits and decided accordingly. The governing body of the respondent college was asked to decide upon the recommendation of the respondent college with regard to suspension and compulsory retirement of the petitioner, however, as noted herein above, the concerned authority merely approved the compulsory retirement of the petitioner.
50. In light of the aforesaid, it is imperative to state here that the corrections made by this Court in the preceding paragraph will not have any effect on the merits of the decision rendered in the impugned judgment and the same is merely an inadvertent typographical error which now stands rectified.
51. In view of the above facts and circumstances, the instant application/review petition is partly allowed and stands disposed of. Pending applications, if any, stands dismissed.
52. The order be uploaded on the website forthwith.
CHANDRA DHARI SINGH, J
OCTOBER 22, 2024
rk/ryp/av
W.P.(C) 3644/2020 Page 18 of 18