J M SOLANKI (M) , vs TELECOM REGULATORY AUTHORITY OF INDIA (M) , THE GENERAL MANAGER , THE CHIEF ACCOUNT OFFICER ,

CENTRAL ADMINISTRATIVE TRIBUNAL AHMEDABAD BENCH Review Application No.05/2018 With MA No.

75/2018 in Original Application No.372/2013 Dated this the 29th day of July, 2022 Date of Pronouncement : 29.07.2022 Date of Reserve : 04.04.2022 CORAM: Hon’ble Sh.

Jayesh V.

Bhairavia, Member (Judicial) Hon’ble Sh.

Dr.

A.K.

Dubey, Member (Administrative) 1.

Shri Jayantibhai M.

Solanki 2.

Smt.

Savitaben A.

Mishra Both addressed to Near Arya Samaji Mandir House No.

592/18, G.

M.

Munshi’s Chawl Raipur Ahmedabad.

3.

Alhtar Hussain Sikander Ansasri Chand Hussain Chjawl Near Water Tank, Dudheshwar Road, Shahibaug, Ahmedabad 380 004. … Applicants (By Advocate Shri P.

H.

Pathak) Versus 1.

Union of India Notice to be served through Secretary, Govt. of India, Ministry of Telecom, New Delhi – 110 001.

2.

The General Manager Ahmedabad Telecom District, Ramnivas Building Khanpur, Ahmedabad 380 001.

The Chief Accounts Officer Ahmedabad Telephone District Above Vivekanand College, Raipur, Ahmedabad – 380 002. …Respondents (By Advocate s.

R.R.

Patel R -1 & Joy Mathew R- 2 & 3) ORDER Per: Jayesh V Bhairavi, Member (J) 1.

The present Review Application No.05/2018 is filed by the applicants against the order passed by this Tribunal in OA No.

372/2013, dated 28.04.2017 (Annexure A/1) seeking following reliefs: - “(A) The Hon’ble Tribunal be please to review the order in original application No.372/2013 and recall the same as there is glaring mistakes on face of the order. (B) Pending admission and final disposal of the application, be pleased to suspend the operation and implementation of the order in OA/372/2013. (C) Any other and further relief as this Hon’ble Tribunal deems fit and proper be granted in the interest of justice.’ 2.

The applicants in the main OA had raised the grievance against the respondents as to not conferring “Temporary Status of their Services”.

After considering the material on record, this Tribunal vide order dated 28.04. ted 28.04.2017 hold that the applicants were not entitled for any of the relief as sought by them accordingly the OA No.

372/2013 and MA No.

392/2013 were dismissed both on merit as well as ground of delay and laches.

Aggrieved with the said order dated 28.04.2017, passed by this Tribunal, the applicants herein had filed Special Civil Application No.

16490/2017 before the Hon’ble High Court of Gujarat.

The said SCA came to be dismissed as withdrawn with a liberty to the applicants to file Review Application before the Tribunal vide order dated 20.10.2017.

Accordingly, the present applicants have filed the present Review Application.

The applicants have filed the present RA mainly on the grounds that:- (i) No defense was filed by the respondents as required under Rule 12 of the Central Administrative Tribunal (Procedure) Act, 1987, hence what is stated by the applicants were required to be accepted without pleading, no arguments was available to the respondents. (ii) The Tribunal has shown appearance of Respondent no.

2 & 3 without verifying appearance note which was filed by the BSNL.

In Para 7 of the order it was stated that respondents no.

2 & 3 in the OA have entered their appearance and filed their reply and the respondent no.

1 has not filed any reply.

As such no reply has been filed by the respondents.

The respondent no.1 has filed an MA to delete its name was objected by the applicants.

Therefore, the plea of applicants only required to be considered in the OA. (iii) This Tribunal has not reproduced the correct facts in the impugned order. (iv) The grounds and discrimination as alleged and pleaded in OA were not disputed or denied by the respondents. (v) The applicants have states that they are fulfilling all the conditions to get the benefits of “Temporary Status”.

However, they were paid less than payable to class – IV employees, which is exploitation of the Labour. he Labour.

In support of the said submission the advocate of the applicant had relied upon Judgment of Hon’ble Apex Court in AIR 1987 SC 2342. (vi) The applicants had produced the order of conversion of applicant 1 to 3 as full time employees.

The averments and the ground stated in the OA were not disputed by the respondents, therefore, the same are required to be treated as correct and the OA is required to be decided accordingly. (vii) It is stated by the applicants that number of advocates has been changed on behalf of the respondents.

Subsequently, Ms.

F D Patel represented the Union of India.

Mr.

Joy Mathew filed the appearance note for BSNL.

As such the BSNL was not party respondents in the OA.

It is stated that though in the rejoinder the applicants had pointed out the reply filed by the BSNL was without authority of law and the judgment of Umadevi has referred therein as such has no application to the facts of the present case.

The preliminary objections raised by the applicants in the rejoinder were not reflected anywhere or not dealt with in the impugned judgment. (viii) The arguments submitted by the advocate for applicant has not been correctly reflected.

Actually the advocate has addressed to the Tribunal that there is discrimination and exploitation of the applicants and the scheme framed by the department is continuous one and same was implemented in favour of similarly situation casual labourers by the DOT.

The applicants had produced order dated 20.11.2015 and copy of letter dated 17.12.2013 issued by the DoT /BSNL, New Delhi addressed to all the Heads of Circles and had also produced the GOI letter dated 30.09.2000, with respect to provision of absorption of casual labourers and judgments in support of it was also referred by the advocate for the applicants.

However, the Tribunal in its judgment lost sight to consider the same as also the right points which has resulted in miscarriage of justice. f justice. (ix) It is stated that the judgment referred in Para 13 of the impugned judgment were for different points.

The facts stated in Para 15 are also not correctly stated because the scheme has nothing to do with Casual Labourers or Part Time laboureres.

That point was not at all argued on behalf of the applicants. (x) The judgments referred in the impugned order are not applicable.

4.

On the aforesaid ground the applicants seeking review/recall of the order passed by this Tribunal.

It can be seen that the main grievance raised by the learned advocate for the applicants is that his submission had not been properly dealt with by the Tribunal and had erroneously allowed the Advocate appears for BSNL who opposed the plea of applicants.

Further, it is the grievance of the applicants that the respondents have not filed their reply, therefore, the pleas of the applicants in the OA ought to have been accepted as the same is remained uncontroverted by the respondents.

However, this Tribunal has not considered the said aspect and passed the order which is under review as stated.

5.

It is noticed that along with present R.A. the applicants have filed separate M.A No.75/2018 seeking condonation of delay in filing the RA.

Considering the ground stated in the M.A., the same is allowed.

6.

The scope for Review Application is clearly defined in various orders of the Hon’ble Supreme Court.

In the case of State of West Bengal & others v.

Kamal Sengupta and another (2008) 3 AISLJ 209 the Hon’ble Apex Court held that the Tribunal can exercise the powers of a Civil Court in relation to matters enumerated in clauses (a) to (i) of sub-section (3) of Section 22 of the Administrative Tribunals Act including the power of reviewing its decision.

By referring to the power of a Civil Court to review its judgment/ decision under Section 114 CPC read with Order 47 Rule 1 CPC, the Hon’ble Supreme Court further laid down the principles subject to which the Tribunal can exercise the power of power of review.

In this regard, it is appropriate to refer para 28 of the said judgment the which reads as under :- “(i) The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a Civil Court under Section 114 read with Order 47 Rule 1 CPC. (ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise. (iii) The expression “any other sufficient reason” appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds. (iv) An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(f). (v) An erroneous order/decision cannot be corrected in the guise of exercise of power of review. (vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a coordinate or larger Bench of the Tribunal or of a superior Court. (vii) While considering an application for review, the tribunal must confine its adjudication with reference to material which was available at the time of initial decision.

The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent. (viii) Mere discovery of new or important matter or evidence is not sufficient ground for review.

The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court/Tribunal earlier.” 7.

In another judgment passed in Union of India v/s Tarit Ranjan Das 2004 SCC (L&S) 160 the Hon’ble Supreme Court while dealing with the order passed in Review Application held in paragraph 13 as under: “The Tribunal passed the impugned order by reviewing the earlier order. ier order.

A bare reading of the two orders shows that the order in review application was in complete variation and disregard of the earlier order and the strong as well as sound reason contained therein whereby the original application was rejected.

The scope for review is rather limited and it is not permissible for the forum hearing the review application to act as an appellate authority in respect of the original order by a fresh and rehearing of the matter to facilitate a change of opinion on merits.

The Tribunal seems to have transgressed its jurisdiction in dealing with review petition as if it was hearing original application.

This aspect has also not been noticed by the High Court.” 8.

Bearing in mind the above dictum on the point of scope of review as laid down by the Hon’ble Supreme Court, existence of an error on the face of the record is sine qua non for review of an order.

But it is not permissible for the forum to hear the review application to act as an Appellate Authority in respect of the original order by a fresh hearing of the matter to facilitate a change of opinion on merits.

In the case in hand, we have examined the grounds urged by the review applicants in support of their prayer for reviewing the order passed by this Tribunal and we find that the review applicants have failed to bring out any apparent error on the face of order under review.

9.

It is noticed that after considering the submissions made on behalf of the applicants as also the judgments relied upon by the counsel for the applicants, this Tribunal had dealt with the points which were raised by the applicants more particularly whether the applicants are the employees of the DoT or the BSNL along with other issues involved in the O.A.

In this regard, it is appropriate to reproduce para 24 of the order under review i.e. dated 28.4.2017.

The para 24 reads as under :- “24. er :- “24.

On perusal of the pleadings, the documents annexed thereto and upon hearing all the learned counsels, the main question that arises for our consideration are ; (i)Whether DoT is disabled from making any submission for want of written reply to the claim of the applicants in this O.A. (ii) Whether the applicants fulfill the conditions prescribed in the ‘’Casual Labourers (Grant of Temporary Status & Regularisation) Scheme of the Department of Telecommunications,1989? (iii) Whether they are entitled for a direction to the respondents to grant temporary status and consequential benefits ? (iv) Whether the claim of the applicants is liable to be rejected on the ground of delay and laches ? (v)Whether the applicants are employees of DoT or BSNL? (vi)Whether the applicants are working in BSNL as casual labourers on the basis of deemed deputation?

10.

Thus, it can be seen that this Tribunal has dealt with the core issue raised by the applicants in its judgment dated 28.4.2017 the applicant has failed to point out any error much less an error apparent on the face of record justifying the exercise of power under sub-clause (f) of sub-section (3) of Section 22 of the Administrative Tribunals Act, 1985.

As noted herein above, the scope for review is rather limited and it is not permissible for the Tribunal while hearing the review application to act as an appellate authority in respect of the original order by a fresh and rehearing of the matter to facilitate a change of opinion on merits.

11.

In view of the above discussions and in light of the law laid down by Hon’ble Apex Court (supra), the Review Application deserves to be dismissed and accordingly, the same is dismissed.

The MA is also disposed off. (Dr A K Dubey) (Jayesh V Bhairavia) Member(A) Member(J) PA-jrm