2010 STPL(Web) 685 DEL 1

Radha Dubey Vs. Government of National Capital Territory of Delhi

2010 STPL(Web) 685 DEL

DELHI HIGH COURT

(HON’BLE MR. JUSTICE ANIL KUMAR & HON’BLE MR. JUSTICE VIPIN SANGHI, JJ.)

DR.RADHA DUBEY
Petitioner
VERSUS
GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI & ORS.
Respondent

CM No.2149 of 2010, CM 2148 of 2010 & R.A 68 of 2010 in WP(C) No. 13988 of 2009-
Decided on 19-03-2010.

Service Law – Termination

Advocate(s): For the Petitioner: Mr. Shree Prakash Sharma, Advocate

For the Respondent: Mr. Rajiv Nanda and Mr. Zeyaul Haque, Advocates for respondent Nos.1 to
3.

JUDGEMENT

Anil Kumar, J.-CM No.2149 of 2010

1. This is an application seeking condonation of 18 days delay in filing the review application by
the petitioner.

2. For the reasons stated in the application, it is allowed and the delay is condoned. Application
stands disposed off.

R.A no. 68 of 2010 & CM No.2148 of 2010

3. The petitioner seeks review of order dated 21st December, 2009 dismissing her petition
wherein she had assailed the order dated 13.11.2009 passed by the Central Administrative
Tribunal, Principal Bench, New Delhi in O.A. No.2745/2008 dismissing her original application.
The petitioner has also sought directions to the respondents to produce her leave account.

4. The petitioner was working as medical officer under the Government NCT of Delhi and on
account of remaining absent from duty for considerable period her services were terminated by
letter dated 23.-27.11.2007, which was challenged by the petitioner by filing a Original
Application No.2745/2009, titled as ‘Dr. Radha Dubey vs. Government of NCT of Delhi and
another’, which was dismissed by the Tribunal by order dated 13.11.2009.

5. The order of the Tribunal dismissing the petitioner’s application was challenged in the writ
petition being W.P.(C) No.13988/2009, filed before this Court which was also dismissed by order
dated 21.12.2009, holding inter-alia, that the services of the petitioner had not been regularized,
and merely because the petitioner was being paid salary admissible to the regular employees, on
the basis of ‘equal pay for equal work’, it could not be held that the petitioner who was appointed

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Radha Dubey Vs. Government of National Capital Territory of Delhi

on contract basis had been regularized. The plea of the petitioner that the termination of her
service was very harsh was also rejected by holding that alleged compelling circumstances of the
petitioner which kept her away from her employment, could not be a reason for the petitioner to
remain absent indefinitely. She had been sanctioned leave only for 20 days. Though the leave was
extended for some time thereafter, however, since the petitioner kept seeking further leave, the
same was denied and she was required to join back her duty, which was disregarded by the
petitioner and even the warnings issued to her were ignored.

6. The petitioner has sought review of the order dated 21.12.2009 contending that the order dated
21.12.2009 proceeds on the basis that the balance leave to the petitioner’s credit had got
exhausted which, according to the petitioner is not correct and, is an error apparent on the face of
the record.

7. The learned counsel for the petitioner has also contended that some of the relevant rules were
not considered by this Court regarding grant of leave, and consequently, the order dated
21.12.2009 is liable to be reviewed.

8. This Court while dismissing the writ petition of the petitioner had specifically held that a
medical organization cannot be efficiently run in public interest, if the staff and employees
appointed to render services remain on indefinite leave, as absence of medical officer will result
in crumbling of the entire system and the personal difficulty of such officer cannot be accepted
beyond a particular point. It was also held that the respondents could not be faulted for not
extending the initially sanctioned leave for 20 days to about 19 months which was the period for
which the petitioner did not report for work which resulted into the termination order being
passed against her.

9. It is well settled that the review proceedings are confined within the ambit and scope of Order
47 Rule 1 of the Civil Procedure of Code, 1908 which contemplates that an order may be open to
review only if there is a mistake or an error in the impugned order which is apparent on the face
of the record. This cannot be disputed that an error which is not self evident and has to be
detected by a process of reasoning, can hardly be set up as an error apparent on the face of the
record. In exercise of review jurisdiction, it is not permissible for an erroneous decision to be re-
heard on merits and corrected. A review petition has a limited purpose and the same cannot be
allowed to be an appeal in disguise. A review does not entitle the applicant for a fresh hearing or
arguments or correction of an erroneous view taken earlier. The Courts have held in various
pronouncements that power of review can be exercised only for correction of a patent error of law
and facts which are apparent in the face without any elaborate argument being needed
establishing it.

10. The learned counsel for the petitioner has tried to re-argue the whole matter by contending
that the observation made in the order that the balance leave to her credit has got exhausted is not
correct, and therefore, the petition could not have been dismissed. By doing so she is in fact
asking for re-appreciation of the entire pleas and contentions. Even if the entire leave to her credit
was not exhausted, the petitioner could not remain absent for almost 19 months after getting leave
sanctioned only for 20 days.

11. Though the learned counsel for the petitioner has contended that she was entitled for 5 years
leave, however, the point for consideration is whether she remained absent without authorized
leave or not. In any case this plea cannot be taken into consideration this being a review petition
and not an appeal. This has not been disputed that she remained absent for 19 months, and in the
circumstances, it cannot be held that there is any patent error in the order of this Court.

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2010 STPL(Web) 685 DEL 3
Radha Dubey Vs. Government of National Capital Territory of Delhi

12. In the circumstances, we do not find any ground to review the order dated 21.12.2009 and the
review application is therefore, dismissed. Since we have dismissed the review application after
hearing the learned counsel for the petitioner, the application for directions being CM
No.2148/2010 does not survive and the same is disposed of.

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