V HEGH COURT (3F CHHATTISGARH AT BILASPUR REVIEW PETITION N0. 48 of2907 PETITIONER : Kanhaiya Lal Mehar Aged about 44 Years, S/o, Late Shri Dammdhar Mehar, R/O, Chakradhamagar: Mohalla Sethi Nagar, Near Shiv Mandir, Raigarh (C.G.) RESPONDENTS . High Court of Chhamsgarh Through: The Registrar Genera} High Cou11 of Ch‘uattisgarh High‘ Cau£t 'of MP. Through: The Registrar General, High Court of Madhya Pradesh, Jabalpur (M3) VERSUS Bilasnur (C G ) 3b 3, The District Judge, District Raigarh (C.G.) REVIEW PETITION UNDER ORDER 47 RULE 1 OF THE CIVIL PROCEDURE CODE, 1908. SB: Hon’bie Shri Satish K. Agnihotri. J. BY CIRCULATXON ORDER (Passed on . h‘ ..day of August, 2007) This review petition is considered in the Chamber under the provisions of Ruie 76(2) ofthe High Court ofChhattisgarh Rules, 2005. 2. This petition seeks review of judgment and order dated 05.12.2006 passed bv this Court in W.P. No. 4296 of 1994 on several grounds. The petitioner, basically seeks review on the following ground as stated in para i4 ot‘the review petition. The same is quoted below: “14. .......the Hon’ble Division Bench was ofthe opinion that though the grounds ofviolation ¢ or L‘ natural 4, 1 justice pertaining to the conducting ofthe Departmental Enquiry was pleaded in the petition, it appears that the same was not stressed upon while the petition was being decided and therefore the Hon’ble Division Bench was of the opinion that the said ground can oniy be considered by the Hon’ble Singie Bench and for which the petitioners cah have the liberty ot‘fiiing the Review Petition according to the Hon’ble Division Bench the said ground raised bv the petitioners never been decided iii the orders passed by the Hon’ble Single Bench wouid not oome Within the ambit of review appeai and therefore, it was with this observation that the petitioners had withdraw ihe writ yetition seeking a iiberty preferred a review eetitioxa from this Hon’ble Court” The averments made by the yetitioner as smted above is not on the basis of any document or observation made in the order dated 23.04.2007 passed by the Hom’ble Division Bench in Writ Appeal No. 38/2007. The order reads as under: “Learned counsel appearing for the appellant seeks leave oft‘nis Court to withdraw this writ aoeeal. ) Permission sought for is granted Accordingly. the writ ap'peal reserved is to disposed the appeilant of to as file Withdrawn. review petition. However, if he so ii‘oerty desires. 1s Ordered accordingly.” The yractice of making statement in the argument er averment in the pleadingsywithout there being any basis is impermissible in law. lt is expected that the advocates appearing in the matter or dratting the ’ pleadings? shoutd restrain themselves from making such observations which is neither recorded in the judgment/order of the Court, nor is there any basis for the same. Ur n the present case, the writ appeai was dismissed as withdrawn at the equest of learned counsei appearing for the appellant (review petitioner) and liberty was reserved to the appellant (review petitioner) to tile review petitiom if so desired. The Hon’ble Supreme Court in the matter of State of Maharashtra Vs. Ramdas Shrinivas 'Nayak and another‘. in an identieal situation, wherein learned counsel appearing for one ofthe parties stated in the said case that “he never made such concession”, it was observed as under: “4. General A.K.Sen, When to who we the drew concession appeared the for attention made the State before of the of the Maharashtra iearned High Court, Attorney— before Shri the High Court and led the arguments for the respondents / / (2 r i there and who appeared for Shri Antulay before us coricession iniervened and and invited proiested us to that peruse he the never written made submissions any such made by him in the High Court. We are afraid that we cannot launch into an enquiry as to what transpired in the High Court. It is simply riot done. Pubiic policy bars us. Judicial decorum restrains us. Matters ot‘judiciai record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. “Judgments cannot be treated as mere counters in the game of Iitigation.” We are bound to accept the statement of the judges recorded in their judgment, as to What transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by adidavit and other evidence. If the judges say in their judgment that something was drawn, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of facts as to What transpired at the hearing, recorded in the judgment of the court, are conclusive ofthe facts so stated and no one can contradicL such statements by altidavit or other evidence. It‘a party thinks that‘the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party. whiie the matter is still ‘tresh in the minds of ‘ the judges, to cail the attention of the very judges who have made the record to the fact that the statement made with ‘ regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an appellate court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation ofthe law and had led to gross injustice; but,” he may not call in question the very fact of making the concession as recorded in the judgmen ." Further, in the matter of. Bhavnagar University Vs. Palitana Sugar Miil (P) Ltd 8; Qthersz, the Hon’ble Supreme Court referred and approved the observations made in the matter of State of Maharashtra Vs. Ramdas Shrinivas Nayak & another (supra). This practice of making unwarranted statements or averrnents in the pleading and attributing the same to the Court is deplorable and deserve to be deprecated. The petitioner has sought review of the petition on other following grounds: “A. That the enquiry process was Vitiated on the ground ofviolation of principles of natural jus‘iice. The disciplinary authority neither appointed any enquiry offlcer nor appointed any presenting oiiicer on behalf of the management to prove the A1ticle of Charges against the petitioner. On the contrary, he himself became the enquiry oiiicer as weii as the presenting officer. The disciplinary authority acted as a prosecutor and as a judge. Therefore, there was a clear violation of principles of natural justice. , ‘ B. That, this Hon’hle High Court ought to have considered the grounds raised/by the petitioners that: Disciplinary Authority could not have acted as Presenting Officer on behalf of it management and also could not have conducted any examination in chief of the management witnesses and not cross examined the defense Witnesses. C. That: this Hon’ble High Court ought to have considered the grounds raisedby the petitioners that after completion ofthe enquiry against the petitioner: the copy of the findings of the Enquiry Officer/Disciplinary Authority was also not supplied to the petitioner. D. That, this Hon’ble High Court ought to have considered the grounds raised by the petitioners that, prior to issuing the punishment order to the petitioner, the Disciplinary authority had also not issued the Show Cause Notice on the proposed punishment imposed by the Disciplinary authority. E. That, this Hon’ble High Court ought to have considered the fact, that Disciplinary authority could not have issued the punishment order alongwith findings ofthe enquiry. F. That this Hon’ble Court also ought to have considered the fact that the punishment given to the petitioner was not commensurate to the charges. Even otherwise, the punishment awarded is shocking to the conscience and is highly disproportionate to the alleged charges. The charges leveled were never, such which warranted capital punishment to the petitioner. a \ G. That ihe fact that the disciplinary authority did not even wait for the complation of the preliminary investigation on the alleged charges leveled against the petitioner goes to reveal the predetermined appreaeh ofthe disciplinary authority.” 10. The aVerments ofthe petitioner in review petition is that this Couit while hearing the matter has ignored the above stated grounds, which have been taken for the first time in the review petition. 11. I have carefully gone through the arguments/grounds raised in the petition which are as under: “(1) That the leamed Appellate Authority’s order is unreasoned and eontrarv to law. (2) That the show cause notice is only on two grounds, but the proceedings be initiated on number of charges, that is against the natural justice. (3) That the charges shouid not be proved merely on the basis of presumption and without material present on record; presumption cannot be drawn against the petitioner. (4) That the order is legally incorrect in View ot'Ramjan case. {5) That the charges leveled against him are not too sever and punishment of comoulsorv retirement is too severe looking to the circumstances ofthe ease. (.6) That the learned Disciplinary Authority and the Appellate Authority erred in their finding that the petitioner has committed grave misconduct for sending complaint direct to the High Court. In fact, the petitioner is entitled to send complaint to the High Court. {7) That the non-supply of the necessary documents is also a ground for setting aside the order of punishment of compulsory retirement. (8) That the order of compulsory retirement is not based on material present on record and evidence of witnesses has also not been properly appreciated by the Disciplinary Authority. as well as Appellate Authority, (9) That the impugned order is against the natural jumce and contrary to the provisions of law, hence deserves to be set aside.” The ground no. A raised herein has been dealt with in detail in the judgment and order sought to be reviewed in this petition, except that whether the disciplinary authority is under an obligation to appoint an enquiry officer. It is well settled principle oflaw that the enquiry officer is a representative of the disciplinary authority. If the disciplinary authority himself conducts the enquiry, there is no illegality or infirmity in law. The Hon’ble Supreme Court in the matter of Pankajesh v. Tulsi Gramin Bank and another}, observed as under: “6. Thus an enquiiy, under the Regulation may be delegated to a person higher in rank than the delinquent officer, in the case ofan oitic‘er. But in~this case we do not find any substantial miscarriage of justice prejudicial to h the petitioner for the reason that though it is always desirable that an officer higher in rank than the delinquent officer should be directed to conduct an enquiry, the enquiry is conducted as a delegate of the disciplinary authority. Therefore, the ultimate decision is to be taken by the diseielinary authority. By mere delegating the enquiry whether the enquiry otticer is ofthe same cadre or of higher gade than hat ef the petitioner, it did not cause any material irreguiarity nor resulted in any injustice to the petitioner. Under tiese eircmnstanees, we do not find any illegality warranting interference.” The second ground that the disciplinary authority couid not have acted as presiding officer on behalf of the management and also could not have conducted any examination-in-ehief of the management witnesses and not cross examined the defence witnesses, was not raised in the writ petition. The third ground that a copy of the findings of the enquiry officer/disciplinary authority was also not supplied to the petitioner was neither raised in the grounds of the petition, nor argued at the time of hearing. fine iburth geund to the effect that prior to issuing the punishment order to the petitioner? the disciplinary authority had not issueti show-cause-notice on the propoeed punishment, was also not one of the grounds in the petition nor the same was argued in the Court. The fifth ground that the disciplinary authority could not issue the punishment order alongwith the findings of the authority, was also not one ot‘the grounds raised in the petition nor was the same argued in the course ofhearing. The next ground with regard to the disproportionate punishment was also not one’of the grounds which was either raised or argued. 14. By this review petition, the petitioner seeks a fresh hearing ofthe case on altogether new grounds which are impermissible in law. The grounds which are neither raised nor argued in the writ petition should also not be permitted to be raised before the appellate authority. The judgment and order dated 05.12.2006 has considered all the points raised and argued in the course ofhearing at length and there is no error apparent on the face ofthe record. . 1r, 15. The petitioner has not pointed out any manifest error on the record and the petitioner has not further brought into the notice, any new fact which could not be produced earlier despite diligent efforts made by the petitioner. It is well settled principles of law that the 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 ofthe Code of Civil Procedure. even in exercise of review jurisdiction by the High Court under Article 226 of the Constitution. The applicant has not produced any new ground for 16. feview, except the same gound which has been considered and decided in the Writ petition. Principle of law is weil settled by several judicial pioneuncements ofthe Hon’ble Supreme Court in the cases of Smt. Meera Bhanjan Vs. Smt. Ninnala Kumar Chaudhary", Lily Thomas, etc. Vs. Union of India and 9therS5, Agit Kumar Kath V§. State 9f Orissa and ethersé, Government o!‘ T.N. and Others Vs. M.Ananehu Asari and others7. Recently, in the matter of Kerla State Electricity Board v. Hitech Electmthemnies & Hydropower Ltd. and otherss, the Supreme Court observetl as under: “10. This Court has referred to several documents on record and also considered the documentary evidence brought on record. This Court on a consideration ofthe evidence on record concluded that the respondent had been denied power supply by the Board in appropriate time which prevented the respondent horn starting the commercial production by 3 1~12—1996. This is a finding ‘of fact recorded by this Court on the basis of appreciation of evidence produced before the Court. In a review petition it is not open to this Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the patties did not support the conclusion reached by this Court. We are atraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully Within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is snovm that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise.” 17. x 18. Applying the well settled principles of law to the present case, there is no good ground available for review of the order dated 05.12.2006. The W 19. 20. xl petitioner seeks an opportunity to argue 1he entire case a fresh under the garb of review petition, which is not permissible and tenable in law. I am constrained to observe that the practice of raising new grounds in the appellate forum or in the review petition with the contention that the and argued in the Court passing the order which is sought to impugned in an appeal or sought be reviewed in the same Court is opposed to judicial decorum and deserves to be viewed seriously. As a result and in View of the foregoing, the review application is same was raised dismissed. L ”(WW/f ”def ~ s’dl- . SatishKAgnihom V Judge i l9$2(l) SCC 46$ 2GB3(2) SCC 111 AIR 1997 SC 265d AIR 1995 SC 455 AIR ZOOOSC 1650 AIR 2000 SC 85 (2‘305) 2 gCC 332 (1005) 6 SCC 651 ’ u_ Qwnw M #mmauwq