Akbar Ali v. The State Of Bihar

Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the common order dated 3.3.2012 passed by the District Teachers Appointment Appellate Authority at Vaishali in Case No. BP-01/2011 and BP-06/2011. It sets aside his appointment as teacher in the visually handicapped category in favour of respondent no. 11. The appellant in the latter case has been denied relief and has therefore not been impleaded as a party 2 Patna High Court CWJC No.12372 of 2012 (2) dt.19-07-2012 respondent. The review jurisdiction under Article 226 over an order of the Tribunal has to be restricted to errors in the decision making process. If a party has not been heard, relevant materials on the record have not been considered, they constitute errors of procedure. No person can be allowed to be prejudiced by an act of the Court. This inherent power of any Court or Tribunal shall be separate from the power of review which has to be specifically conferred.

Learned counsel for the petitioner submits that normally findings of fact by the Tribunal have to be given finality and cannot be reexamined in the writ jurisdiction. But the petitioner asserts in Paragraph-26 of his application that he had filed his reply along with a copy of the extract of the counselling register in support of the claim that he had signed the counselling register and participated in counselling on 28.2.2009. This statement has been affirmed as true to knowledge of the petitioner, in the affidavit supporting the application. The impugned terminates appointment of the petitioner. Without interference with the same at this stage, liberty is granted to the petitioner to file an application before the Tribunal that it committed an error of record by not considering his objection on facts supported by documentary evidence already available on record before 3 Patna High Court CWJC No.12372 of 2012 (2) dt.19-07-2012 arriving at a finding against him on that basis.

The Tribunal may examine the original records and if it is satisfied that there was material on record available and which has not been considered causing miscarriage of justice it possesses the inherent power as distinct from the power of review to rehear the matter after notice to the private respondent. The inherent jurisdiction of the Tribunal in such cases was explained in (2008) 16 SCC (Sunitadevi Singhania Hospital Trust v. Union of India) as follows:- “19. It is true that the period of limitation specified in terms of sub-section (2) of Section 129-B of the Customs Act, 1962 is required to be observed but the Tribunal failed to notice that it has inherent power of recalling its own order if sufficient cause is shown therefor. The principles of natural justice, which in a case of this nature, in our opinion, envisage that a mistake committed by the Tribunal in not noticing the facts involved in the appeal which would attract the ancillary and/or incidental power of the Tribunal necessary to discharge its functions effectively for the purpose of doing justice between the parties, were required to be complied with.

While the judges’ records are considered to be final, it is now a trite law that when certain questions are raised before the court of law or tribunal but not considered by it, and when it is brought to its notice, it is the only appropriate authority to consider the question as to whether the said contentions are correct or not. For the aforementioned purpose, the provisions of limitation specified in sub-section (2) of Section 129-B of the Customs Act would not be attracted. We, however, do not mean to lay down a law that such an application can be filed at any time. If such an application is filed within a reasonable time and if the court or tribunal finds that the contention raised before it by the applicant is prima facie correct, in order to do justice, which is being above law, nothing judges’ hands fetters 4 Patna High Court CWJC No.12372 of 2012 (2) dt.19-07-2012 considering the matter on merit.” Let such application on behalf of the petitioner be considered and disposed in accordance with law within a maximum period of two months from the date of receipt and /or production, if so done within a maximum period of four weeks from today. The writ application stands disposed. P. Kumar/- (Navin Sinha, J)