PRAMOD KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) WRIT petitioner, aggrieved by the order dated 16.7.1999 passed by the single Judge in Civil Review No. 370 of 1998 arising out of the order dated 28.10.1998 passed in C.W.J.C. No. 1040 of 1997 has preferred this appeal under clause 10 of the Letters Patent. Short facts giving rise to the present application are that the writ petitioner -appellant(hereinafter referred to as the writ petitioner),who was appointed as GNR (Med), had filed the writ application for quashing the order dated 8.11.1996 dismissing him from service. It was not in dispute that the writ petitioner had deserted the Army Service but the only submission advanced before the learned single Judge was that he has been dismissed from service without holding any inquiry as required under section 106 of the Army Act. The aforesaid submission found favour with the learned single Judge and he held the order of dismissal to be bad on the ground that no inquiry was held under section 106 of the Army Act. Accordingly the learned single Judge allowed the writ application and quashed the order of dismissal.

(2.) AGGRIEVED by the same the Union of India and its officers filed review application which was registered as Civil Review No. 317/1998 (Union of India and ors Vs. Pramod Kumar). The learned single Judge by the impugned order allowed the application and dismissed the writ petition. The learned single Judge while reviewing the order and dismissing the writ application observed that in view of sub -section( 2) of section 106 of the Army Act, there was no necessity for holding a court of inquiry to declare the writ petitioner a deserter.

(3.) MR . Pandey appearing on behalf of the appellant does not question the order passed in review on merit but contends that there beaing been no error apparent on the face of record; the learned single Judge erred in reviewing its order. He points out that while exercising the power of review the court does not exercise power as an appellate court and only in a case when there is error apparent on the face of the record, the power of review is exercised. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of Smt. Meera Bhanja v Smt. Nirmala Kumari Choudhury , AIR 1995 SC 455 and our attention has been drawn to paragraph 8 of the Judgment, which reads as follow: