MANIKANTAN NAIR v. CO-OPERATIVE TRIBUNAL — 1980 DIGILAW 349 (KER)

Judgment :- 1. The 3rd respondent-society referred a dispute under S.69 of the Kerala Co-operative Societies Act, 1969 claiming a sum of Rs. 4,094 09 from the petitioners herein on the basis of a bond executed by them in favour of that society. The claim as aforesaid was founded on the audit report submitted under S.63 of the Act. The said claim was agitated ex parte. The arbitrator passed an award allowing the claim of the society against the two petitioners herein. The petitioners thereupon filed an application to set aside the ex parte award. The arbitrator dismissed that application. The petitioner thereupon filed a revision before the Kerala Co-operative Tribunal, 1st respondent herein. That Tribunal allowed the revision. As a result the arbitration case was again tried. The Arbitrator at the close of the trial of the arbitration case passed Ext. P-2 award, thereby again upholding the claim of the society. The petitioners preferred an appeal against the same before the 1st respondent-Tribunal. By Ext. P-3 judgment the Tribunal dismissed the appeal, thereby confirming Ext. P-2 award. This was on 16-2-1977. The petitioners at this juncture approached this Court impugning Ext. P-2 award and Ext. P-3 appellate decision. This was as per the writ petition, 0 P. 1635 of 1977. By Ext. P-4 judgment dated 21-7-1977 this Court dismissed the said writ petition. This Court in Ext. P4 judgment said that "the arbitrator as well as the appellate Tribunal have considered the evidence in the case and found that the petitioners are liable", and further that "this finding based on appreciation of evidence does not call for interference in these proceedings". It was for these reasons that this Court refused to exercise its extra ordinary jurisdiction under Art.226 of the Constitution in O. P. No. 1635 of 1977. 2. After this Court refused to exercise its extra ordinary jurisdiction the petitioner filed Ext. P-5 application for review before the 1st respondent-Tribunal. This application is dated 27-7-1977. The 1st respondent-Tribunal dismissed that application as per Ext. P-6 judgment. The Tribunal appears to have proceeded as if there are certain errors apparent on the face of the record. However, the Tribunal found it difficult to review its Ext. P-3 decision for the reason, as stated by that Tribunal Ext. P-4 decision in O. P. 1635 of 1977 stands in the way thereof. 3. The petitioners impugn Ext. P-6 judgment. The Tribunal appears to have proceeded as if there are certain errors apparent on the face of the record. However, the Tribunal found it difficult to review its Ext. P-3 decision for the reason, as stated by that Tribunal Ext. P-4 decision in O. P. 1635 of 1977 stands in the way thereof. 3. The petitioners impugn Ext. P-5 dismissal of the review application. They contend that despite the refusal by this Court to exercise its extraordinary jurisdiction in respect of Ext. P-3 judgment of the 1st respondent-Tribunal that Tribunal has power to review the same for the reason the records of the case are still within its power and not within the power of this Court. This is the question that arises for decision herein. 4. There is no dispute that S.85 of the Co-operative Societies Act, 1969 confers power on the 1st respondent-Tribunal to review its own order in any case either on the application of the Registrar or on the application of any party interested and to pass with reference thereto such order as it thinks fit. No doubt the said power can be exercised only subject to the limitations prescribed by the provisos to the aforesaid section. It is is not necessary to go into the limitations mentioned in the provisos to S.65 so far as the case on hand is concerned. 5. A Full Bench of this Court in Kannan v. Narayani (1980 KLT. 9) has extracted the following passage from Mellor v. Swire ((1885) 30 Ch. D.239), where Lord Justice Bowen LJ. said: "Every court has inherent power over its own records so long as these records are within its power and that it can set right any mistake in them. An order even when passed and entered may be amended by the Court so as to carry out its intention and express the meaning of the court when the order was made." The Full Bench further observed that the principle stated therein has been accepted by the Supreme Court in Samarendra v. Krishna Kumar (AIR. 1967 SC. 1440). The Full Bench as also the Supreme Court characterised this power as an inherent power of any court. 1967 SC. 1440). The Full Bench as also the Supreme Court characterised this power as an inherent power of any court. The Full Bench further pointed out that though this is the position, where the decision of the inferior court has merged in that of the superior court that has dealt with the case either on appeal or in revision, then the inferior court has no power over the records of the case of the superior court, the appellate court or the revisional court, as the case may be, alone can deal with the records and make any amendment or variation to the decision. In so doing the Full Bench relied on the decision of the Privy Council in Brij Narain v. Tejbal Bikram Baha-(I. L. R. (1910) 32 All. 295) and the decision of the Supreme Court in U. J. S Chopra v. Stale of Bombay (AIR. 1955 S. C. 633) and Gojar Brothers v. Raian Lal (AIR 1974 S C. 1380). 1 would with advantage quote the following passage from the decision of the Supreme Court in U. J. S. Chopra v. State of Bombay (AIR. 1955 S. C. 633), at 649: "A judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing in the presence of both the parties would certainly be arrived at after due consideration of the evidence and all the arguments and would therefore be a judgment and such judgment when pronounced would replace the judgment of the lower court, thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the court below." (emphasis supplied) 6. The question that falls to be decided so far as the case on hand is concerned is whether, because this Court refused to exercise its extra ordinary jurisdiction under Art.226 of the Constitution in relation to Ext. P-3 judgment, the 1st respondent-Tribunal which rendered that decision has lost its jurisdiction to review that decision The result of this question would depend upon the answer to the further question as to whether it can be said that Ext. P-3 decision has merged in Ext. P-4 judgment of this Court and whether it can be said that Ext. P-3 judgment, the 1st respondent-Tribunal which rendered that decision has lost its jurisdiction to review that decision The result of this question would depend upon the answer to the further question as to whether it can be said that Ext. P-3 decision has merged in Ext. P-4 judgment of this Court and whether it can be said that Ext. P-4 judgment of this Court in O. P. No. 1635 of 1977 is a final judgment to be accepted in accordance with law by the arbitrator, the 2nd respondent herein. I do not think Ext. P-4 decision in O. P. 1635 of 1977 is the final executable decision so far as the case on hand is concerned. No doubt this Court refused to exercise its jurisdiction in relation to Ext. P-3 decision The writ sought for in O. P. No. 1635 of 1977 was the writ of certiorari whereby the petitioners therein sought to have the records of the inferior tribunals brought to this Court and quashed. The effect of the dismissal of O. P. No. 1635 of 1977 is that this Court refused to bring the records of the inferior court to this Court and to quash the same. It cannot be said that this Court in so doing confirmed any finding of fact this Court under Art.226 of the Constitution was only concerned with the question as to whether the authority who rendered the decision (here the 1st respondent-Tribunal) has exceeded its jurisdiction, or has failed to exercise its jurisdiction or has committed any errors of law (not even errors of fact) apparent on the face of the records. This was the function and jurisdiction of this Court in exercising its jurisdiction under Art.226 of the Constitution in relation to a motion for a writ of certiorari. 7. In T C. Basappa v. T. Nagappa (AIR. 1954 SC. 440) that Court said as follows: "In granting a writ of certiorari the superior court does not exercise the power of an appellate Tribunal. It does not review or re weigh the evidence upon which the determination of the interior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own view for those of the inferior tribunal. It does not review or re weigh the evidence upon which the determination of the interior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own view for those of the inferior tribunal. The offending order or proceeding so to say is put out of the way as one which should not be used to the detriment of any person. Relying on the principles stated as aforesaid, the Madras High Court in Burma Shell Co. v. L. A. Tribunal (AIR. 1957 Madras 60) pointed out as follows: "Thus, though the High Court held in W. P. No. 405 of 1953 (A) that the decision of the Appellate Tribunal in the appeal preferred to it against the award in I. D. No. 2 of 1952 was correct, that did not result in the substitution of the finding of the High Court for that of the Appellate Tribunal." That court also said: 'Nor did the order of the Appellate Tribunal with Its finding merge in the order of the High Court in W. P. No. 405 of 1953. It was not the High Court that was the court of competent jurisdiction to decide an issue in an industrial dispute. That jurisdiction was vested only in the statutory Tribunals. The proceedings in the High Court under Art.226 of the Constitution were not proceedings for adjudication of an industrial dispute." The passages read above and the principles discussed herein lend support to all the contentions advanced on behalf of the petitioners herein that despite Ext. P-4 decision by this. Court in O. P. No. 1635 of 1977, the 1st respondent Tribunal had power over the records of the case and that it has therefore the power to review Ext. P-3 decision tendered by it. I hold so. 8. The learned Government Pleader has a contention that at the time and after Ext. P-3 decision was rendered by the Ist respondent-Tribunal the petitioners had two alternative courses open to them to impugn Ext. P-3 decision, (1) by invoking the Tribunal's jurisdiction under S.85; and (2) by invoking this Court's jurisdiction under Art.226 of the Constitution. I hold so. 8. The learned Government Pleader has a contention that at the time and after Ext. P-3 decision was rendered by the Ist respondent-Tribunal the petitioners had two alternative courses open to them to impugn Ext. P-3 decision, (1) by invoking the Tribunal's jurisdiction under S.85; and (2) by invoking this Court's jurisdiction under Art.226 of the Constitution. Though the writ of certiorari sought for by the petitioners in O. P. No. 1635 of 1977 is usually characterised as a writ issued ex debito justitiae it is well settled that issue thereof is discretionary so far as this Court is concerned. It is also, as already pointed out, well settled that in exercising the jurisdiction in the matter of issuing a writ of certiorari, this Court is not concerned with question of fact, nor with appraisal or reappraisal of the evidence on the record. It has already been stated hereinbefore that such jurisdiction is exercised only to see that the inferior authority acts within its jurisdiction and does not fail to exercise jurisdiction if any vested in it. This Court has also in such cases the jurisdiction to correct errors of law, and only errors of law apparent on the face of the records. In view of this circumstance it cannot be said that the petitioner has as of right two alternative efficacious remedies (1) that provided by S.85 of the Act and (2) by Art.226 of the Constitution The statutory remedy available to the petitioner in respect of matters that can be rectified by way of review was only the one conferred by S.85 of the Act. In view of what is stated herein I do not think that there is any merit in the contention that the petitioners having chosen to invoke this Court's jurisdiction under Art.226 of the Constitution, they cannot thereafter invoke the remedy available to them under S.85 of the Act. In view or what is stated hereinbefore the only course open is to quash Ext. P-6 judgment of the 1st respondent Tribunal and direct that Tribunal to consider Ext. P-5 application afresh in the light of what is stated hereinbefore and in accordance with the provisions of law governing the same. The 1st respondent-Tribunal in disposing of Ext. P-5 application shall not be hampered by anything stated in Ext. P-6 decision. P-6 judgment of the 1st respondent Tribunal and direct that Tribunal to consider Ext. P-5 application afresh in the light of what is stated hereinbefore and in accordance with the provisions of law governing the same. The 1st respondent-Tribunal in disposing of Ext. P-5 application shall not be hampered by anything stated in Ext. P-6 decision. The Tribunal is also directed to afford opportunity to both sides to be heard in the matter. This writ petition is allowed to the above extent. There will be no order as regards costs.