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Union Of India Thru' The Director General & Others v. G.P. Yadav Distict Deoria (U.P.) And Others - WRIT - A No. 28394 of 2003 [2003] RD-AH 195 (9 July 2003)


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Civil Misc. Writ Petition No.28394 Of 2003

Union of India & Ors.     ......... Petitioners


G.P. Yadav & Anr. ......... Respondents

Hon. Dr. B.S. Chauhan, J.

Hon. D.P. Gupta, J.

(By Hon'ble Dr. B.S. Chauhan, J.)

This writ petition has been filed against the impugned judgment and order dated 25.3.2003, by which the learned Central Administrative Tribunal has allowed the application of the respondent no. 1 and granted him the relief of reinstatement with all back wages along with confirmation of temporary status w.e.f. 1.9.1993.

Facts and circumstances giving rise to this case are that respondent no. 1 had been engaged as part-time Farras vide order dated 27.3.1989. He had been granted enhancement from time to time. He made an application for giving him job on daily wages, which was accepted and he was allowed to work on full time. Acceptance of his request was approved vide order dated 23.3.1991 and he was being paid Rs. 27.92 per day. Subsequently, Government of India framed the Scheme on 10.9.1993 for granting temporary status to daily wage employees for their regularization. As the case of the said respondent workman was not considered, he filed objection on 17.5.1993 making it clear that he had initially been engaged as a part-time employee. As his representation/objection was not considered, being aggrieved, he filed O.A. No. 1297 of 1994, which was disposed of by the learned Tribunal vide order dated 11.4.2002, issuing direction to the authorities concerned to consider the case of the petitioner in terms of the Scheme dated 10.9.1993. In pursuance of the said order, his claim was considered and rejected vide order dated 27.7.2002. Being aggrieved, he again approached the learned Tribunal by filing O.A. No. 905 of 2002, which has been allowed by the impugned judgment and order. Hence this petition.

A large number of issues have been raised by Shri B.N. Singh and very heavy reliance had been placed upon the judgment of the Hon'ble Supreme Court issuing certain directions regarding the regularization under the Scheme of the Government. However, all the issues which have been agitated before this Court by Shri B.N. Singh do not find reference/place in the impugned judgment and order. Thus, he was confronted as to whether the factual issues could be raised first time in the writ petition without laying down in a factual foundation before the learned Tribunal. In reply, it has been submitted by him that all the issues including the application of the Scheme etc. and the judgment of the Hon'ble Supreme Court had specifically been agitated before the learned Tribunal and the Tribunal has erred in not taking into consideration and deciding the same.

Shri J. P. Singh, learned counsel appearing for the caveator-respondent-workman has disputed the factual position, submitting that issues raised before this Court had not been agitated while making submissions before the learned Tribunal and he contended that this Court cannot go into those factual matrix and decide the case afresh. If petitioner is aggrieved by any means, he can maintain a review application before the learned Tribunal.

We have considered the rival submissions made by the learned counsel for the parties on this aspect and perused the record.

In State of Maharashtra Vs. Ramdas Shrinivas Nayak, AIR 1982 SC 1249 the Hon'ble Supreme Court while dealing with a similar case, held as under:-

" We are afraid that we cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena---if a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party---to call the attention of the very Judges---"

While deciding the said case the Hon'ble Apex Court placed reliance upon the judgment of the Privy Council in Madhusudan Vs. Chandrabati, AIR 1917 PC 30; and Somasundaran Vs. Subramanian, AIR1926 PC 136. In the latter case, it has been observed as under:-

"judgment cannot be treated as mere counters in the game of litigation."

A similar view had been taken by the Calcutta High Court in Sarat Chandra Vs. Bibhabati Debi, AIR 1921 Cal 584, observing that the record of the Judge is conclusive and it is not permissible either for the lawyer or litigant to contradict it except by moving application before the same Judge.

In King Emperor Vs. Barendra Kumar Ghose, AIR 1924 Cal 257, the Full Bench of Calcutta High Court reiterated the same view observing that the judgment of the Court  "is not to be criticized or circumvented; much less has to be exposed to any animad version."

In Union of India & Ors. Vs. N.V. Phaneendran, 1995 (6) SCC 45, the Apex Court has held that if a party has taken various grounds before the court below and not made submissions on all of that, it is not even desirable to remit the matter to the said Court. The Court held that "no doubt, several contentions had been raised on merit, the Tribunal dealt with only one issue. The prayer of the party that they may be given an opportunity to agitate those issues/questions by remitting the matter to the Tribunal, cannot be accepted as the party itself had chosen to agitate a limited number of issues and there can be no justification to remit the matter."    

The same view has been taken by the Supreme Court in Kanwar Singh Vs. State of Haryana & Ors., (1997) 4 SCC 662.

Thus in view of the aforesaid settled legal proposition, emerges that the writ court cannot conduct the enquiry as to what issues had been agitated before the Tribunal and if a party is aggrieved that some of the issues agitated by it have not been dealt by the Tribunal, the only remedy available to it is to file an application of Review before the Tribunal as those issues cannot be dealt with by the writ Court.

As we are not inclined to entertain the new questions of facts, petition stands dismissed with liberty to the petitioner to approach the learned Tribunal, on the said grounds if so advised, by filing a Review Application.




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