Research › Search › Judgment

Calcutta High Court · body

2003 DIGILAW 23 (CAL)

K. N. Mishra v. Union of India

2003-01-20

Bhaskar Bhattacharya, Joytosh Banerjee

body2003
Judgment B. Bhattacharya, J. When the present writ application come up for hearing before us, an important question, whether this particular Bench can at all take up the matter for hearing, has cropped up. 2. In order to appreciate the aforesaid question, it will be pertinent to refer to the following admitted facts: (i) The present petitioner being dissatisfied with an order passed by the respondents authority granting promotion to the private respondent in super-session of the petitioner to the post of Statistical Assistant moved a writ application before this court thereby giving rise to C.R. No. 4784(W) of 1980. The said writ application ultimately came up for hearing before Justice U.C. Banerjee, (as His Lordship then was), when His Lordship disposed of the matter by merely giving liberty to the petitioner to make fresh representation before the respondent authority and the respondent authority was directed to consider such representation of the petitioner within a specified period. (ii) Pursuant to the aforesaid liberty given by Justice U.C. Banerjee, the petitioner made representation before the appropriate authority and at the same time also preferred a regular appeal before a Division Bench of this Court being FMAT No. 3344 of 1984. (iii) Ultimately, the petitioner did not press the aforesaid FMAT No. 3344 of 1984 and the Division Bench consisting of Justice Shyamal Kumar Sen and Justice S.R. Misra (as Their Lordships then were) dismissed the said appeal as withdrawn with liberty to challenge the findings of the respondent authority made on the representation of the petitioner pursuant to the order passed by Justice U.C. Banerjee. It may be mentioned here that during the pendency of the said appeal, the representation filed by the petitioner had already been disposed of thereby holding that the grievances of the petitioner were without any substance and the promotion of the respondent No.3 superseding the petitioner was justified. (iv) The petitioner thereafter filed an application under section 19 of the Administrative Tribunal Act, 1985 being OA No. 81/A & N/1995 before the learned Central Administrative Tribunal thereby claiming the following reliefs:- "(a) For an order quashing and/or setting aside the impugned order of promotions dated 22.2.1979 as also 20.3.1991 made Annexures 'A-1' & 'A-15' respectively to this application as also Memo dated 29.5.1979, 23.8.1979, 20.11.1979, 29.4.1980 and 16.11.1984 made Annexures-'A8' Co., 'A-10', 'A-11' & 'A-14' respectively to this application. (b) For an order directing the respondents to give regular promotion to the applicant to the post of Statistical Assistant as also in the post of Investigator from the date respondent No.4 has been promoted to the said posts and further directing them to give all consequential service benefit to the applicant. (c) For an order directing the respondents to produce records relating to the case at the time of hearing of the application. (d) For any order or further order or orders as to this Hon'ble Tribunal may deem fit and proper." (v) The learned Tribunal by an order dated September 19, 2000 dismissed the said application under section 19 of the Administrative Tribunal Act thereby approving the initial promotion of the private respondent to the post of Statistical Assistant as well as the promotion to the subsequent post of Investigator. (vi) Being dissatisfied, the petitioner preferred the instant writ application being WPCT(AN) No. 157 of 2001 which ultimately came up for hearing before a Division Bench composed of the Ajoy Nath Ray and Asit Kumar Bisi, JJ. (hereinafter referred to as the "First Division Bench") and Their Lordships by an order dated June 11, 2002 dismissed the said writ application thereby holding that even if the Departmental Promotion Committee made an error in selecting the private respondent instead of the writ petitioner, such an error could not necessarily be corrected by a Writ Court. The error, Their Lordships proceeded, if be one of jurisdiction, illegality or unconstitutionality, could enable the court to intervene. Their Lordships further held that an error of assessment could not be corrected in writs. Under such circumstances, Their Lordships were of the view that the writ petitioner was not entitled to any relief. It may not be out of place to mention here that in the said order the First Division Bench specifically took note of the contention of the petitioner that "in all probability all relevant matters were never placed before the Departmental Promotion Committee which considered the case of promotion..." by referring to page 57 of the writ application. (vii) Instead of moving the higher forum against such order, the petitioner preferred a review application before the next Circuit Bench on July 1, 2002, whereupon another Division Bench consisting of Samaresh Banerjee and N.C. Sil, JJ. (vii) Instead of moving the higher forum against such order, the petitioner preferred a review application before the next Circuit Bench on July 1, 2002, whereupon another Division Bench consisting of Samaresh Banerjee and N.C. Sil, JJ. (hereinafter mentioned as the 2nd Division Bench) issued a Rule on July 2, 2002 making it returnable after seven days i.e. July 9, 2002. (viii) On the returnable day, i.e. July 9, 2002 Mr. Saroop, the learned Advocate for the respondents appeared and disclosed before the court that as per departmental Rule the relevant records had been destroyed. The Second Division Bench, however, directed the respondents to file affidavit-in-opposition within July 11, 2002. Petitioner was directed to give reply by July 12, 2002. The Bench fixed the matter on July 15, 2002 at the top of the list. (ix) It appears from the record that on July 15, 2002 when the said application for review of the order dated June 11, 2002 passed by the First Division Bench came up for hearing, Mr. Jayapal, a learned Advocate of this court prayed for an adjournment before Their Lordships on the ground that Mr. R.S. Saroop, learned Govt. Pleader was unable to come to court because of indisposition. Their Lordships, however, were not inclined to adjourn the hearing for the aforesaid reason on the ground that in spite of specific directions earlier given by court, no affidavit had been filed nor did the respondents ask for the extension of time for filing their affidavit. Such being the position, Their Lordships proceeded on the footing that the respondents were not inclined to file any affidavit and thereafter, hearing the learned advocate for the petitioner, allowed the application for review by recalling the order dated June 11, 2002 passed by the First Division Bench. The reason for recalling the order dated June 11, 2002 is setforth below :- "....As pointed out hereinbefore we have already found that in the impugned judgment and order the main case of the writ petitioner made out by him that his case was not even considered by the Departmental Promotion Committee as no material was produced before the Departmental Promotion Committee, but the Division Bench never considered the case even while disposing of the writ petition on different grounds. While considering the case of the petitioner, the Division Bench arrived at its finding without examining the records of the Departmental Promotion Committee, although the earlier Division Bench in the same writ proceedings passed a specific order for production of records of the Departmental Promotion Committee. Such judgment therefore, certainly suffers from patent error on the face of the record. We are, therefore, of the view that for the reasons stated above, the said judgment and order dated 11.6.2002 passed in WPCT No. 157 of 2001 is liable to be reviewed. The application therefore stands allowed. The order dated 11.6.2002 is hereby recalled." (x) After recording such order, Their Lordships entered into the merit of the writ application and made certain observations on merit regarding the conduct of the respondents and were of the view that for such conduct of the respondents, the court might be inclined to draw adverse inference for non-production of records. Ultimately, Their Lordships observed that since the adjournment of the hearing of application was prayed on the ground of illness of Mr. Saroop, Their Lordships were not inclined to dispose of the writ application on that day and to record Their Lordships "conclusion on such fact." Their Lordships further held that "it is now for the next Circuit to decide finally whether because of the stand of the respondents whether the petitioner will be without any remedy or the entire selection should be set aside with a direction for holding fresh Departmental Promotion Committee". It may be mentioned here that all the aforesaid observations were made in a single order while allowing the application for review and not by recording separate order. 3. At last, the matter has come up before the present Bench pursuant to the direction given by the Second Division Bench. 4. It may be mentioned here that all the aforesaid observations were made in a single order while allowing the application for review and not by recording separate order. 3. At last, the matter has come up before the present Bench pursuant to the direction given by the Second Division Bench. 4. After hearing the learned counsel for the parties and after going through the materials on record, we are of the view that this Bench cannot legally take up this writ application, inasmuch as, the original writ application filed according to the High Court Rules had already been disposed of by the First Division Bench and the Second Division Bench having found on the application for review that there was an error apparent on record in the order of the First Division Bench justifying recall of the said order, the Second Division Bench should have also pronounced what should be the just order in the facts of the present case after removing the alleged apparent error. 5. It is now settled position of law that the right of review is a substantive right which can be created by a statute and that the power of review conferred under section 114 of the Code of Civil Procedure read with Order 47 thereof does not in terms apply to writ proceeding in view of the explanation added to section 141 of the Code by Amendment of 1976. But the law is equally settled that there is nothing under Article 226 of the Constitution of India to preclude the High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice and to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of such power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But it may not be exercised on the ground that the decision was erroneous on merits. But it may not be exercised on the ground that the decision was erroneous on merits. That would the province of a court of appeal. (See Shivdeo Singh & Ors. vs. State of Punjab & Ors., AIR 1963 SC 1909 ; Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma & Ors. AIR 1979 SC 1047 ). 6. In the instant case, review has not been sought on the ground of discovery of new materials but the petitioner has preferred review on the ground that there are some mistakes or errors apparent on the face of record and the Second Division Bench has recalled the order of the First Division Bench on that ground. 7. In our opinion, in a writ proceeding if an application for review is filed on the ground of an error apparent on the face of record and while hearing the said application, if the Bench reviewing it finds that there is really any error apparent on the face of record, in such a case, it should not only recall the earlier order but should also pass the final verdict stating what should be the just order and so long such 'final verdict' is not given, in the eye of law, the application for review should be deemed to be pending. A Bench taking a review application on the ground of error apparent on the face of record after holding that there is mistake apparent on the face of record cannot entrust the same to another Bench for final decision after recording some prima facie observations on the merit of the writ application. If the aforesaid procedure is adopted, in such a case, the Bench is virtually forcing upon the succeeding Bench its own opinion about the merit of the case. 8. We are quite alive to the position that Order 47 Rule 8 of the C.P.C. permits the court to rehear the case at once or at a subsequent date after recalling the order. But such a procedure being a creature of statute cannot be applied while reviewing a final order in a writ jurisdiction. But even in a case, where Order 47 Rule 8 of the Code applies, rehearing must be made by the same court or by the court prescribed in Order 47 Rule 5 of the Code. 9. But such a procedure being a creature of statute cannot be applied while reviewing a final order in a writ jurisdiction. But even in a case, where Order 47 Rule 8 of the Code applies, rehearing must be made by the same court or by the court prescribed in Order 47 Rule 5 of the Code. 9. By virtue of the Writ Rules framed by this Court and in view of the decision of the Supreme Court in L. Chandra Kumar's case this type of writ applications against an order of Central Administrative Tribunal are required to be heard before a Division Bench. But once a Division Bench disposes of such application on merit, the final order passed thereon can be modified only on an application for review before same court or by appeal to the Supreme Court. In this case, the petitioner did not move the Supreme Court but applied for review. While hearing such review application, the Second Division. Bench should, in our view, dispose of the entire review application stating what should be the final order on review; otherwise, after simply recalling the original order, the said Bench cannot place it for final decision before a Third Bench cannot place it for final decision before a Third Bench along with their prima facie opinion on merit. If the procedure adopted by the Second Division Bench in this case is followed, in such a situation, there will be total anarchy in the judicial process. For instance, if we are now called upon to enter into merit, we must be free to decide according to our own conscience and in such a case, we may arrive at a conclusion that the reasons assigned by the First Division Bench was the appropriate view and we may reiterate the same reason. The result will be that a litigant will be unnecessarily harassed over selfsame matter, ultimately getting no relief on the application for review although in the process Second Division Bench held that there was patent error in the order of the First Division Bench. 10. The result will be that a litigant will be unnecessarily harassed over selfsame matter, ultimately getting no relief on the application for review although in the process Second Division Bench held that there was patent error in the order of the First Division Bench. 10. Since the Second Division Bench did not record its final decision indicating what should be the final order after correction of the alleged error apparent on the face of record, we are of the view that the review application filed by the petitioner has not been finally disposed of and the same is a pending application for review. At the same time) this application cannot be described as one "heard in part" because the Second Division Bench itself released it for disposal before the next Circuit Bench. 11. Once the Second Division Bench released the matter for disposal before a Third Division Bench, such Third Division Bench is, in our opinion, not bound by any observations of the Second Division Bench not only on the merit of the writ application but also by the finding that the First Division Bench committed error apparent on the face of record. Thus, the order dated July 15, 2002 passed by the Second Division Bench recalling the order passed by the First Division Bench on the ground of error apparent on the face of record should also be ignored. This Bench should deal with the application for review afresh as if it is being moved before us for the first time. 12. Now once we proceed to take up the application for review afresh, we are faced with another difficulty in entertaining the same in view of the fact that both the Judges of the First Division Bench viz. Ajoy Nath Ray and A.K. Bisi, JJ are still available, although may not be in this Circuit. 13. It may be mentioned here that in the Writ Rules framed by our High Court, there is no provision for review although there is prescribed procedure in the Appellate Side Rules for disposal of review applications arising out of civil matters. We are also quite conscious that a Full Bench of this Court in the case of Ratan Lal Nahata vs. Nandita Bose, reported in AIR 1999 Cal. 29 , has arrived at the following conclusions in regard to the application for review: "1. We are also quite conscious that a Full Bench of this Court in the case of Ratan Lal Nahata vs. Nandita Bose, reported in AIR 1999 Cal. 29 , has arrived at the following conclusions in regard to the application for review: "1. Order 47, Rule 5 of the Code of Civil Procedure although ipso facto has no application in relation to a writ proceeding or a proceeding on the Original Side or the Appellate Side of this Court, the principles laid down therein may be applied. 2. In a case where merely one of the learned Judges attached to the Bench is available he may issue the rule but the matter on merit must be heard by a Division Bench of two Judges or such number of Judges as the Hon'ble the Chief Justice may constitute. 3. The Hon'ble the Chief Justice has an unfettered jurisdiction in the matter of constitution of Benches in all matters including a review application. 4. As a matter of propriety, a Judge who is still attached to the Court should be made a party to hear the review application unless exceptional situation arises which may in the opinion of the Hon'ble Chief Justice would be subversive to imparting justice to a litigation keeping in view the principle that justice is not only to be done but manifestly seem to be done." 14. Conclusion Nos. 3 and 4 mentioned above demand that either this application for review should be heard by Ray and Bisi, JJ or the Hon'ble Chief Justice should assign this matter to a specific Circuit Bench. 15. Both the learned counsel for the parties by relying upon Chapter XVIII of Appellate Side Rules submitted-that in view of the Rules mentioned in the said Chapter, review applications are entertained in the Circuit Bench at Port Blair by a succeeding Bench notwithstanding the fact that the Judges of the Original Court are still available, Their contention is that in Rule 1(a) of Chapter XVIII the word "case" includes "suit, appeal, application, petition and reference." According to them to them it necessarily implies that the word 'case' also includes application for review. They next rely upon the definition of "Circuit Bench" meaning "a Bench consisting of one or more Judges holding Court in the Islands." 16. They next rely upon the definition of "Circuit Bench" meaning "a Bench consisting of one or more Judges holding Court in the Islands." 16. Now Rule 3 provides as follows: “All cases including application under Articles 226 and 227 of the Constitution of India shall be initiated in the Islands and heard by the Circuit Bench." (Emphasis given) 17. Retying upon Rule 3 they contend that all the applications for review being "cases" should be heard by the Circuit Bench for the time being whoever may be the Judges comprising thereon. 18. If we accept the aforesaid contention, then, we two, the Judges of this Bench, should also be entitled to hear the appeals, which are definitely "cases" within the definition of Rule 1(a) mentioned above, even against any order passed by anyone of us sitting singly in writ jurisdiction either in this Circuit or any previous Circuit. We are, however, unable to accept such preposterous contention. 19. Therefore, Chapter XVIII of the Appellate Side Rules does not enable a Circuit Bench consisting of different Judges to hear application for review of a judgment passed by an earlier Circuit Bench if the Judges of the earlier Bench are still functioning as Judges of the Calcutta High Court unless the matter is assigned by the Hon'ble Chief Justice to the subsequent Circuit Bench. 20. Although Chapter X of the Appellate Side Rules dealing with review of civil matters has no application to writ proceedings, principles mentioned in Rules 5 and 6 of that Chapter supports our aforesaid view. 21. Be that as it may, after going through the judgment of the Full Bench in the case of Ratan Lal vs. Nandita (supra), we do not find that the principles laid down therein are in any way conflict with the view we propose those are rather in conformity with our opinion. 22. It appears that there is a standing instruction issued by the Hon'ble Chief Justice that in case of death, retirement or transfer of a Judge to another High Court any order passed by that learned Judge can be reviewed by any other sitting Judge taking same determination in which the original court passed the order sought to be reviewed. 22. It appears that there is a standing instruction issued by the Hon'ble Chief Justice that in case of death, retirement or transfer of a Judge to another High Court any order passed by that learned Judge can be reviewed by any other sitting Judge taking same determination in which the original court passed the order sought to be reviewed. But no standing order of the Hon'ble Chief Justice enabling any succeeding Circuit Bench to hear application for review of an order passed by an earlier Circuit Bench consisting of different Judges who are still available has been brought to our notice. 23. Thus, we are of the view that both the Judges of the First Division Bench being still available as Judges of the Calcutta High Court, we cannot entertain this application for review unless the same is specially assigned before us by the Hon'ble Chief Justice as held by the Full Bench in the case of Ratan Lal Nahata (supra) while dealing with a case of review where one of the Judges of the Original Bench was still available. 24. Since this Division Bench disagrees with the order dated July 15, 2002 passed by the Second Division Bench directing re-hearing of the main writ application by the succeeding Circuit Bench and at the same time we hold the view that the review application entertained by the said Bench is yet to be disposed of finally and that at this stage we not only cannot enter into the merit of the writ application but also legally cannot hear out the application for review of the order passed by the First Division Bench in view of the fact that both the Judges of the First Division Bench are still available as Judges of Calcutta High Court, we refer the matter to the Hon'ble Chief Justice to constitute a larger Bench inasmuch as, the points involved herein are important and have not been settled either by the Judicial Committee of the Privy Council, or by the Federal Court of India or the Supreme Court of India or by any Full Bench of this Court. 25. 25. The points to be decided are formulated below : (1) If an application for review of an order disposing of a writ application is made on the ground of error apparent on the face of record, whether the Bench hearing such application, after recording its finding that there was such error, can dispose of such application by recalling the original order without arriving at the final verdict as to what should be the just order on the writ application after removing the alleged error, entrusting such duty to a succeeding Bench after making some prima facie observation on merit of the writ application? (2) If the answer to point No.1 above is given in affirmative, whether the review application should be deemed to be pending so long the succeeding Bench is not arriving at a conclusion altering the original order disposing of the writ application or affirming the original order? (3) If the answer to the point No.1 is in affirmative but the answer to point No.2 is in negative or if the answer to the point No.1 above is given in negative, whether the succeeding Bench should be bound by the observations of the Bench made on merit while entrusting the same to the succeeding Bench for final decision. (4) If answer to point Nos. 1 and 2 are both given in affirmative, in such a case, whether in a Circuit Bench at Port Blair an application for review of an order passed by a Bench sitting in writ jurisdiction can be entertained by a succeeding Circuit Bench consisting of different Judges from those of the previous one in the absence of any special assignment of the Hon'ble Chief Justice when the Judges of the previous Bench are still functioning as the Judges of the Calcutta High Court? 26. We make it clear that this Bench has not heard the writ application on merit pursuant to the order dated July 15, 2002 passed by the Second Division Bench. 27. The office is directed to place this order before the Hon'ble Chief Justice for appropriate order. Joytosh Banerjee, J.: I agree. Matter referred to the Hon'ble Chief Justice.