M/S SHEO SHAKTI COKE INDUSTRIES vs. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE - 37, KOLKATA

considered acquittal of an employee in a criminal case where the departmental enquiry/disciplinary proceeding is based on similar set of facts. We, therefore, intend to give the review applicant to have the matter heard on merits without going into the strict technicalities. 9. The delay is condoned. The Review application being RVW 2 of 2022 be heard on merits. 10. The office is directed to register the review application. 11. CAN 1 of 2025 is accordingly disposed of. RVW 2 of 2022 1. The present review application arises out of the judgment dated 19.08.2019 passed in WP.CT 153 of 2019 The review has been assigned to this Bench as the Presiding Judge of the Bench which had delivered the judgment and order dated 19.08.2019 has demitted office in the meantime.

(i) The petitioner seeking review was a follower constable in the Andaman & Nicobar Police Department (hereinafter to be referred to as the Petitioner) being appointed vide order dated 30th June, 1988. On 17th March, 2008 memorandum of charges was issued to the review applicant having three articles of charge framed against him. (ii) The first article of charge was that he had demanded Rs. 40,000/- in lieu of providing a job as a cook to Sri Vijay Kumar in the police department. For that sake the Petitioner had collected Rs. 19,000/- as initial amount with the assurance that he will provide the said job to Sri Vijay Kumar at the earliest. Thereafter on demand by the said Vijay Kumar of returning the said amount of Rs. 19,000/- the Petitioner did not return the same as a consequence of which the matter was reported in the Aberdeen Police Station and a criminal case was instituted under Section 419/420 I.P.C. (iii) The second article of charge was that on 15.05.2007 the Petitioner confronted one Ms. Leela Kumari accusing her of wrongful act while she was with her friend in a PLA lodge and had asked her to accompany him and took her on his motorcycle and on the way the Petitioner had snatched her mobile phone and had tried to physically assault her with wrong intentions near Loha bridge. As such Ms. Leena

Kumari on 23.05.2007 lodged a complaint at the Bamboo Flat Police Station and as a consequence of which a criminal case was initiated under Sections 366 /392/354 of the Indian Penal Code. (iv) The third and the last article of charge against the Petitioner was that on 13.05.2007 while PC/434 Jaymangal of PTS Police Line while performing duty at G.D. Room, Police Line had kept his mobile phone in the G.D. Room and when he got up from sleep he noticed that his mobile phone was missing from the place where he had kept. The said Jaymangal suspected that the Petitioner might have stolen his mobile phone as he had come to the G.D. Room and had registered a complaint at the Abardeen Police Station and a criminal proceeding was started under Section 380 of the Indian Penal Code. (v) After departmental inquiry being completed the Deputy Inspector General of Police Andaman & Nicobar Islands being the disciplinary authority imposed the penalty of dismissal vide order dated 9th April, 2009. (vi) Against the order passed in the departmental inquiry the Petitioner preferred an appeal. The then Director General of Police Andaman & Nicobar Islands being the appellate authority vide order dated 7th of July 2009 did not find any

procedural flaw or denial of opportunity to the Petitioner and was of the view that the findings of the disciplinary authority are based on evidence and are just and the contentions of the appellant are devoid of any merit could not find any reason to interfere with the order of penalty and dismissal from service awarded to him and thereby rejected the appeal of the Petitioner. (vii) Being unable to accept the decision of the appellate authority the Petitioner preferred an original application before the Central Administrative Tribunal Calcutta Bench, Circuit at Port Blair (in short ‘Tribunal’). The said Tribunal vide order dated 18.04.2012 found no justification in the contention raised on behalf of the Petitioner that the authority acted beyond their power, jurisdiction and violated the principles of natural justice and/ or judicial inference is called for and thus, found no merit in the application and dismissed the same thereby affirming decision of the departmental proceeding. (viii) Being aggrieved by and dissatisfied with the order passed by the Tribunal the Petitioner preferred a writ application before the Hon’ble Court being WP.CT 153 of 2019.

(ix) Prior to passing of the order under review the said S. Simhachalam was found not guilty under Section 419/420 Indian Penal Code and thus acquitted under Section 255(1) of Criminal Procedure Code on 28.09.2012. (x) Thereafter the said S. Simhachalam was found not guilty in respect of the charge under Section 380 of the Indian Penal Code and thus acquitted from the said charge under Section 248(1) of the Criminal Procedure Code on 16.07.2013. (xi) The said Simhachalam was ultimately found not guilty in respect of the offences under Section 366 /392/354 of the Indian Penal Code and has been acquitted under Section 235 (1) of the Criminal Procedure Code on 25.10.2017. (xii) The Judicial Review was essentially on the ground that the Tribunal did not consider the acquittal of the review applicant while considering the original application. (xiii) It will appear from the order under review dated 19.08.2019 that the issue of acquittal was specifically pleaded, argued and decided. 4. Submissions of the Review Applicant: Mr. Fatik Chandra Das, learned Advocate representing the Petitioner relying upon a judgment delivered by the Hon’ble Supreme Court in the case between Ram Lal Vs State of Rajasthan and Ors. reported in (2024) 1 SCC 175 has submitted the following:

i) The present lis has the same facts and circumstances as to that of Ram Lal. The Petitioner is relying upon the same for the purpose of review to contend that the order in the Departmental Proceeding (in short “DP”) should be set aside and the petitioner be re-instated to his service and be given all service benefits for the interregnum. ii) He has further submitted that the Hon’ble Supreme Court has been pleased to set aside the judgment of the Division Bench and has directed reinstatement of the appellant with all consequential benefits including seniority, notional promotions, fitment of salary and all other benefits. This was done as the DP and the Criminal Cases were based on the same set of facts. The acquittal of the employee in the case of Ram Lal (supra) in the Criminal Cases by the Sessions Court in Appeal was approved by the Hon’ble Supreme Court as a consequence whereof the order in the DP as approved by the Appellate and Review Authority was set aside. iii) He has also submitted that the Hon’ble Apex Court has also been pleased to award Ram Lal 50% of the back wages to be complied within 4 weeks from the passing of the said judgment declaring the order of termination, the order of the appellate authority, the orders refusing to reconsider and review the penalty respectively as illegal and untenable.

iv) The learned counsel further drew the attention of this Court that the said Ram Lal was dismissed from service by the disciplinary authority which was affirmed by the appellate authority and thereafter the said Ram Lal being initially convicted by the Trial Court but ultimately being acquitted by the Appellate Court. v) He has further submitted that the present Petitioner is on a better footing than Ram Lal whose instance in being placed. The said Ram Lal was convicted by the Trial Court in the criminal case but acquitted by the appellate court on the basis of which the Hon’ble Apex Court has ultimately reinstated the said Ram Lal with all the reliefs he was entitled to, whereas the present Petitioner has not been convicted by any criminal court on the contrary in all the three criminal cases the Petitioner has been acquitted. Banking upon the aforesaid judgment of the Hon’ble Apex Court the learned counsel prayed for allowing the prayer of the Petitioner by allowing the revision application and reinstating the Petitioner.

i) The learned counsel submitted that in the present case there has been attainment of finality as there has been dismissal of the SLP filed by the Petitioner. ii) He has further submitted that the present review petition has been filed over a lapse of over three years from the date of dismissal of the writ petition and it is a clear abuse of the process of law. iii) The learned counsel has strongly placed the issue that once the Hon’ble Apex Court has upheld the judgment sought to be reviewed it has attained finality and there is no scope for review. iv) He has further submitted that no new or substantial ground, let alone an error apparent on the face of the record has been advanced to justify the delay and the review. v) The learned counsel has also submitted that the reliance of the decision of Ram Lal (supra) is fundamentally misplaced and the facts are wholly distinguishable from the present case. He has further submitted that the said Ram Lal was involved in an allegation of forgery regarding the date of birth in a mark-sheet and acquittal was based on the finding by the Hon’ble Sessions Judge that no alteration was found in the original mark-sheet and the overwriting was accepted as a mere bona fide correction of an inadvertent error. Whereas the present Petitioner was dismissed from the service following a duly concluded regular departmental inquiry which have been proved on the basis of the principle of

preponderance of probabilities. The misconducts committed by the Petitioner herein involve grave acts of moral turpitude and criminal proclivity which are wholly incompatible with the duties of police personnel. vi) He has further submitted that it is settled law that subsequent acquittal in criminal case does not vitiate the disciplinary action which has already concluded and dismissal from service has been upheld by the Tribunal which has been affirmed by this Court and finally affirmed by the Hon’ble Apex Court. In such circumstance subsequent acquittal of the Petitioner does not give any right of review and the said petition is untenable. It is settled law that departmental inquiry operates on a different standards of proof and is independent of criminal proceedings. The standard of proof in criminal trial requires proof beyond reasonable doubt whereas Departmental Inquiry requires proof based on preponderance of probabilities. vii) He has further submitted that the Petitioner herein has been acquitted on the basis of benefit of doubt which is insufficient to negate the findings of a robust departmental inquiry. viii) The learned counsel has also submitted that reinstating a delinquent officer whose actions have undermined the discipline, integrity and public image of the police force is legally impermissible and the penalty of dismissal was proportionate. In

support of his contention the learned counsel has relied upon the following judgements: i) Imtiyaz Ahmad Malla Vs. State of Jammu and Kashmir reported in (2023) 19 SCC 588. Relying upon the aforementioned judgment the learned counsel has placed the fact that mere acquittal does not entitle an employee to automatic reinstatement particularly when the dismissal is based on proved misconduct in a departmental inquiry. ii) Deputy Inspector of Police and another Vs. S. Samuthiram published in (2013) 1 SCC 598 By placing the said judgment he submitted that order of dismissal by departmental authority can stand despite the employee being acquitted from criminal case. iii) State of Punjab Vs. Ram Singh reported in (1992) 4 SCC 54 Relying upon the aforementioned judgment the learned counsel has submitted that the nature of misconduct is a crucial factor and allowing reinstatement whose conduct compromises public trust diminishes the image of the police force. Banking upon the aforesaid judgments and submission the learned counsel has sought for dismissal of the review application. 6. Analysis with Reasons:

(a) A review application can be made under Section 114 and Order 47 of the Code of Civil Procedure, 1908 (in short CPC). In case of writ petition or judicial review the principles analogous to those of Section 114 and Order 47 of CPC are to be followed. (b) The Hon’ble Supreme Court in a very recent judgment reported in 2024(2) SCC 362 (Sanjay Kumar Agarwal v. State Tax Officer & Anr.), after discussing the various grounds of review and various judgments operating in the field has in paragraph 16 thereof summarized the grounds which is set out hereunder. “16. The gist of the aforestated decisions is that: 16.1. A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record. 16.2. A judgment pronounced by the court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. 16.3. 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 record justifying the court to exercise its power of review. 16.4. In exercise of the jurisdiction under Order 47 Rule 1CPC, it is not permissible for an erroneous decision to be “reheard and corrected”. 16.5. A review petition has a limited purpose and cannot be allowed to be “an appeal in disguise”. 16.6. Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided. 16.7. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions. 16.8. Even the change in law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review.”

(c) In the instant case none of the tests laid down by the Hon’ble Supreme Court in Sanjay Kumar Agarwal (supra) has been fulfilled. There is no new fact which was not placed before the Court while passing the judgment and order under review dated 19.08.2019. There is also no mistake or error appeared on the face of record. The only ground is the judgment of Ram Lal (supra).

(d) An error apparent on the face of record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature. It must be left to be determined judicially on the facts of each case. When a court does not apply the provisions of an enactment which on the face of it would apply to a case, same would be a mistake or error apparent on the face of the record. Only a manifest error would be a ground for review. A review Court cannot act as an Appellate Court. A mistake on the part of the Court which would include a mistake in the nature of the undertaking may call for review of the order. The review proceedings cannot be equated with the original hearing of the case and the writ petition cannot be reheard only on the ground that the law has not been properly considered and applied. If the arguments raised before the Court were considered and decided in the judgment, the petitioner, if he has any grievance against the judgment can prefer an appeal but if the provisions of law have not

been considered in a particular manner in which the petitioner wants to agitate it, then that cannot be a ground for reviewing the judgment. If the view taken by the Court in the judgment is a possible view, having regard to the facts discernible from the facts on record, then it cannot be said to be an error apparent on the face of the record and no review can be made. (e) Failure of consideration of the judgment of the Supreme Court materially affecting the results of the case amounts to an error apparent on the face of the record. The power of review can be exercised in a suitable case in order to impart justice to the parties but the judgment cannot be reviewed merely to allow the petitioner to agitate new grounds. The omission to cite an authority of law is not a ground for reviewing the prior judgment saying that there is an error apparent on the face of the record, since the counsel has committed an error in not bringing to the notice of the Court the relevant precedents. (f) In the present lis, the judgment under review has been delivered on August 19, 2019 and special writ petition was preferred before the Hon’ble Apex Court being Special Leave to Appeal No. 20583 of 2021. Ultimately the said Special Leave to Appeal has been dismissed on December 13, 2021. After the Special Leave to Appeal being dismissed the petitioner has filed the present review application.

(g) A review petition has a limited purpose and cannot be allowed to be an appeal in disguise as held in 1997 8 SCC 715 (Parsion Devi & Ors. v. Sumitri Devi & Ors.) as approved by the Constitutional Bench in 2021(3) SCC 1 (Beghar Foundation [THROUGH ITS SECRETARY] & Anr. v. K.S. Puttaswamy (Retd.) & Ors.). Although, a judgment operates retrospectively as held in 2008 (14) SCC 171 (Assistant Commissioner, Income Tax, Rajkot v. Saurashtra Kutch Stock Exchange Ltd.,) but no new light is thrown to the facts of the case on the basis of the decision in Ram Lal (supra). (h) In the case of Ram Lal (supra) the allegation was against an employee to have interpolated the date of birth in the application by which the said employee had applied for the job. The employee worked from 1991 without any stigma till 2002-2003 when on the allegation of having changed the date of birth to get the job a criminal case was instituted. The Departmental Proceeding (DP) was also initiated immediately thereafter. Five witnesses were examined in DP where he was held guilty of the two charges. In the criminal case, he was also held guilty. In sessions appeal the employee was acquitted. The Hon’ble Supreme Court essentially on the ground that the date of birth of the employee was correctly recorded as per the Class VIII certificate held the findings of the Appeal Court to be correct. Since the same five witnesses who were

examined before the DP were also examined in the criminal proceeding, the Hon’ble Supreme Court after considering the records had set aside the order in DP as approved by Appellate Authority and directed reinstatement of the said employee. The facts are not only different but the nature of acquittal had been minutely considered by the Division Bench while passing the order dated 19.08.2019 being the order under review. (i) We, therefore, do not find any reason to interfere with the order dated 19.08.2019 in exercise of review jurisdiction. 7. Conclusion: We, therefore, do not find any merit in the instant review application. The application being No. RVW 2 of 2022 sans substance and the same is hereby dismissed. There shall, however, be no order as to costs. (j) Parties shall be entitled to act on the basis of the server copy of the judgment and order placed on the official website of the Court. (k) Urgent certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.

I Agree,

(Arindam Mukherjee, J.) (Supratim Bhattacharya, J.)