Hon'ble Siddharth,J.
Order on Delay Condonation Application No. 01 of 2018 in Civil Misc. Review Application No. 2 of 2018 Heard Sri Dhananjay Awasthi, learned counsel for the review applicant and petitioner, Sri Kailash Nath Sinha, in person.
Office has reported that this review application is beyond the time by 58 days. The review application is duly supported by an affidavit filed by Divisional Personnel Officer of the North-Eastern Railway, Izzat Nagar.
Counsel for the review applicant/respondent no. 3 has submitted that the delay in filing of review application has occurred due to the records pertaining to the petitioner being gutted in fire. There is no deliberate delay in filing of this review application and the same may be condoned.
Petitioner has submitted that the argument relating to the documents relating to petitioner being gutted in fire has been falsely raised before this court. No evidence has been brought on record along with affidavit in support of delay condonation application to support such an argument.
After considering the rival submissions, we feel that the delay in filing of the review application should be condoned in the larger interest of justice and the review application should be heard on merits.
Accordingly, the delay condonation application is allowed. The review application is treated within time.
Order on Review Application No. 02 of 2018 Heard Sri Dhananjay Awasthi, learned counsel for the review applicant and petitioner, Sri Kailash Nath Sinha, in person.
Counsel for the review applicant/respondent no. 3 has submitted that the judgment and order dated 07.12.2017 was passed in the absence of counter affidavit and, therefore, the correct facts could not be brought to the notice of the court. The records pertaining to the petitioner were gutted in fire and therefore could not be produced before this court. He has made submissions regarding facts which are being raised before this court for the first time.
The Petitioner, who has appeared in person, has stated that counter affidavit was filed by the respondents before the Central Administrative Tribunal and the same was considered by this court while passing the judgment, sought to be reviewed. The present writ proceedings are relating to the judgment and order passed by the Central Administrative Tribunal and this petition has not been directly filed before this court under Article 226 of the constitution of India.
After hearing the rival contentions, this court finds that this writ petition was pending since the year 2010 and no counter affidavit was filed by either respondent nos. 2, 3 and 4. The notice of this writ petition was served on Sri Govind Saran, Advocate, counsel for the respondent nos. 2, 3 and 4 on 15.09.2010, thereafter, counter affidavit was never filed and on 21.08.2017 the following order was passed by this court :-
"Heard Sri K.N. Sinha in person and Sri Pankaj Lal holding brief of Sri Vivek Singh, learned counsel for the respondents-railway.
In view of the nature of the controversy involved and the facts that have been brought on record, we find it necessary to peruse the records with regard to the claim of promotion of the petitioner and also that of Sri. S.P. Mishra and Sri D.N. Pal in order to ascertain as to whether there has been a violation of Article 14 of the Constitution of India or not and as to whether the petitioner is entitled to any claim of promotional benefits after his reinstatement.
Let the necessary records be produced and matter be listed on 11th September 2017, on which date the aforesaid records and any other record on which the railways are placing reliance on shall be placed before the Court in support of the counter affidavit filed before the Tribunal."
By the aforesaid order, the counsel for the respondent nos. 2, 3 and 4 was directed to produce the records with regard to the claim of promotion of the petitioner and also that of Sri S.P. Mishra and Sri D.N. Pal, but the same were not produced on 11.09.2017. When the records were not produced by the respondent nos. 2, 3 and 4 this court passed the following order on 11.09.2017 :-
"As per our directions dated 21st August, 2017, learned counsel for the respondent-railways Shri Santosh Tiwari submits that the records are required to be produced which shall be produced within ten days. This matter has been continuing since the year 2010. We will grant no further time and in the event, no records are produced by the next date fixed, the matter shall proceed and we will dispose of the petition finally.
List on 22nd September, 2017."
On 22.09.2017 this court directed that the Additional Solicitor General of India may depute some other counsel to assist the court on behalf of the respondent, since the counsel for the respondent was being elevated to the Bench. Learned A.S.G.I. was at the relevant time looking after the cases of railways also. The order dated 22.09.2017 is as follow:-
"It is informed that the learned counsel for the respondent may not be available in this case henceforth as he is being elevated to the Bench.
Learned A.S.G.I. may depute the case to some other Counsel for assisting the Court on behalf of the respondents by the next date fixed.
Petitioner appears in person. He prays that the matter be taken up on 03.11.2017.
Let the matter come up on 03.11.2017 before the appropriate Bench."
On 03.11.2017 when the case was heard Sri S.K. Pal, Advocate appeared on behalf of respondents and he never sought any time for producing records on the ground that the records have been destroyed in fire nor he sought adjournment of the case for filing counter affidavit and the judgment was reserved on that date.
Therefore, it is clear that the respondents were granted ample opportunity of assisting the court, for filing counter affidavit and also for producing the relevant records which they never availed. The petitioner, who is a retired employee of the respondents had been prosecuting this case by engaging number of counsels and finally when he was not in a position to engage counsel he himself argued the case in person.
It is well settled that time and again opportunity of hearing cannot be granted on the pretext of violation of principles of natural justice and on the ground that the judgment has been passed without taking into account the correct facts which could not be brought on record earlier. Delaying tactics cannot be rewarded. Once the respondents have failed to avail the opportunity of hearing granted to them, they cannot be permitted to avail another opportunity of hearing by filing a review application. No injustice has been caused to the respondents since their counter affidavit filed before the Central Administrative Tribunal was already on record and was considered at the time of passing of the judgment sought to be reviewed. The respondent cannot take any fresh plea before the writ court which they had not taken before the Central Administrative Tribunal, since this writ petition has been filed by the petitioner challenging the order of the Central Administrative Tribunal.
Before parting we also find that Sri S.K. Pal, learned counsel who appeared for the respondents earlier, has not filed this review application. It has been filed by the respondent no. 3 only by engaging Sri Dhananjay Awasthi, Advocate, who was not the counsel who argued the writ petition on behalf of the respondents earlier on 03.11.2017. The review petition has been signed only by Sri Dhananjay Awasthi, Advocate, who was not present before the court as the counsel for either of the respondent when the case was argued and judgment was reserved on 03.11.2017.
In view of the above consideration it is clear that there is no error apparent on the face of record hence this review application is devoid of merits and is hereby rejected.
Order Date :- 26.7.2019 Rohit