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High Court Of Calcutta
Ashim Kumar Banerjee, Soumen Sen, JJ.
Barun Kumar Das – Appellant
Versus
State Of West Bengal – Respondent
RVW No.240 of 2011
Decided on : Jan 19, 2012
REVIEW PETITION - CCS (CCA) RULES, 1965 - ERROR APPARENT ON THE FACE OF RECORD - The court held that the review petition is not maintainable as the petitioner seeks a rehearing of the appeal, which is not permissible.
Fact of the Case:
The petitioner, a senior citizen, filed a review petition against a Division Bench order upholding his dismissal from service. The petitioner argued that the Enquiry Officer was biased, the Enquiry Committee was not formed in accordance with the law, and he was compelled to be absent from the proceedings as a form of protest. The petitioner also contended that the Division Bench failed to consider his grievances and that the judgment suffers from an error apparent on the face of the record.
Finding of the Court:
The court held that the grounds raised in the review petition were already considered and decided by the Division Bench. The court further held that the petitioner's absence from the proceedings was not justified and that he did not provide any new or important evidence that was not available at the time of the original hearing.
Issues: 1. Whether the review petition is maintainable? 2. Whether the petitioner's absence from the proceedings was justified? 3. Whether the Division Bench erred in its judgment?
Ratio Decidendi: 1. The court held that the review petition is not maintainable as the petitioner seeks a rehearing of the appeal, which is not permissible. 2. The court held that the petitioner's absence from the proceedings was not justified as he did not provide any reasonable explanation for his absence. 3. The court held that the Division Bench did not err in its judgment as it considered all the relevant facts and circumstances of the case.
Final Decision: The court dismissed the review petition with no order as to costs.
SOUMEN SEN,J
1. THE petitioner filed this application for review of an order passed on 11th March, 2008 in FMA No.2159 of 2007. The said application was accompanied by an Application for Condonation of Delay of about 1298 days.
2. WE propose to dispose of the application filed for condonation of delay being CAN No.10607 of 2011 first before deciding the application for review.
3. THE petitioner is of advanced age and is a senior citizen. The petitioner submits that he has been diligent all throughout in pursuing the said appeal. After the said judgment was delivered he suffered from various physical and mental ailments. He also got in touch with the High Court Legal Service Committee for allotment of an Advocate to pursue the present proceeding and ultimately on 28th July, 2011, one Ms. Pratima Mishra was allotted the said work by the Legal Service Committee. Thereafter, Ms. Pratima Misra could not take any steps because of the ailment of her mother. The mother of the said advocate died on 22nd August, 2011. It is only after she resumed her work that the present review application was prepared and filed.
4. WE are satisfied with the explanation for not preferring the review application within time and sufficient cause being shown, we are inclined to allow the said application being CAN No.10607 of 2011 for condonation of delay and the same is allowed.
5. THE instant review application is arising out of a judgment and order dated 11th March, 2008 passed by a Division Bench presided over by one of us, namely, Justice Ashim Kumar Banerjee. The other learned Single Judge, namely, Justice Tapas Kumar Giri having retired, the said application is taken up by the present Division Bench. The Division Bench by the judgment dated 11th March, 2008 dismissed the appeal and upheld the order passed by the Tribunal.
6. THE petitioner initially challenged the order of the Tribunal passed on 24th July, 1990 upholding the penalty of dismissal against the petitioner. The said award of the Seventh Industrial Tribunal dated 24th July, 1990 was challenged under Article 226 of the Constitution of India being C.O. No.1996(W) of 1991. The learned Single Judge after considering the matter at length upheld the order passed by the Tribunal in exercise of its jurisdiction under Section 11A of the Industrial Disputes Act.
7. THE learned Single Judge took note of various contradictory and inconsistent stands taken by the petitioner before the Enquiry Officer and upon consideration of the materials on record came to the conclusion that the plea of the petitioner that enquiry had been held ex parte, could not be sustained in view of the fact that the said delinquent employee had not deliberately participated in the said proceeding and, accordingly, it was no more open for him to allege violation of principles of natural justice.
8. THE learned Single Judge also took note of the fact even before the Tribunal, the delinquent, except in making attempt to establish that no notice of the enquiry was served, "did not utter a word on the merits of the charges levelled against him". The learned Tribunal, while deciding the said reference, came to a definite conclusion that the domestic enquiry had been conducted against the employee petitioner in a fair and proper manner and the same was valid. Such conclusion was arrived at on scrutiny of the materials on record. The Tribunal did not find any reason to interfere with the findings of the Enquiry Officer and order of the Disciplinary Authority upholding the report of the Enquiry Officer. The Tribunal did not find any reason either to interfere with the quantum of punishment, namely, dismissal. The Tribunal came to the conclusion that having regard to the gravity of the offence with which the employee had been charged and having regard to the fact that such charges had been proved the order of dismissal passed in the said proceeding was commensurate with the misconduct and was perfectly justified.
9. THE learned
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