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2009 DIGILAW 139 (ORI)

RABINDRA PRASAD ACHARYA v. PRESIDING OFFICER

2009-02-17

S.C.PARIJA

body2009
JUDGMENT : S.C. Parija, J. - The Petitioner-workman has filed this review petition seeking review of the Order Dated 11.09.2008, passed in W.P.(C) No. 868 of 2005, on the following grounds: (i) notice of writ application has not been served properly before the date of appearance i.e. 30.6.2008 fixed in the Notice, on Opp. Party No. 2, as a result, the O.P. No. 2 could not appear in the case and there has been violation of natural justice. (ii) none service of notice on O.P. No. 2 before the date fixed for appearance i.e. 30.6.2008 is a mistake and an error apparent on the face of record. The management has also contribution for that in as much as when the management has filed requisites, the O.P. No. 2 was serving at Berhampur to the knowledge of O.S.R.T.C. (iii) The disposal of the writ application by setting aside the award passed by Industrial Tribunal, resulted termination of service of the Petitioner as per Annexure-D. (iv) The two decision relied on by this Hon'ble Court reported in Regional Manager, U.P.S.R.T.C., Etawah and Others Vs. Hoti Lal and Another, and V. Ramana Vs. A.P.S.R.T.C. and Others, are not applicable in the facts and circumstances of the case of Petitioner in as much as Industrial Tribunal has been specifically vested with power u/s 11-A of the I.D. Act to interfere with the punishment of discharge or dismissal and award lessor punished in lieu of discharge or dismissal. This power can be exercised by Industrial Tribunal to its satisfaction. The power like Section 11A of I.D. Act has not been given to any other Tribunal. If for want of reason, the award was set aside, Hon'ble Court would have remitted the matter to Industrial Tribunal directing to pass a fresh award on quantum of punishment giving reasons possibly the way the management has led evidence discussed in paragraph-7 of the award Annexure-1, might be a reason for interfere with the quantum of punishment. 2. On a perusal of the order sheet of W.P.(C) No. 868 of 2005, it is seen that by Order Dated 18.07.2005, this Court had directed issue of notice to the review Petitioner-workman by registered post, which was issued, fixing 20.9.2005 for appearance and show cause. 2. On a perusal of the order sheet of W.P.(C) No. 868 of 2005, it is seen that by Order Dated 18.07.2005, this Court had directed issue of notice to the review Petitioner-workman by registered post, which was issued, fixing 20.9.2005 for appearance and show cause. Subsequently, as the service return was not received by the office and it was not known as to whether notice has been served on the said workman (Opposite Party No. 2), this Court by Order Dated 06.05.2008, directed for issue of fresh notice to the workman by registered post with A.D., which was issued by the office fixing 30.6.2008 as the date of appearance and show cause. Subsequently the A.D. of notice, duly acknowledged by the workman was received back after valid service, as per the office note dated 19.08.2008. The Writ Petition was taken up for admission and hearing on 11.9.2008 but none appeared for the workman (Opposite Party No. 2) in spite of service of notice. Hence the plea of the review Petitioner that there was no proper service of notice on him cannot be accepted. 3. Coming to the question regarding maintainability of the review petition, reason it is now well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1 CPC. A perusal of the said provisions of Order XLVII, Rule 1 show that review of a Judgment or an order could be sought: (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of record or any other sufficient reason. 4. In the case of Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh the Supreme Court held as follows: There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by "error apparent". A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face and there could reasonably be no two opinions entertained about it, a clear case or error apparent on the face of the record would be made out. 5. In Babboo alias Kalyandas and Others Vs. State of Madhya Pradesh the Supreme Court held as under: It is true as observed by this Court in Shivdeo Singh v. State of Punjab AIR 1963 SC 1908 there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. but, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of 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. That would be the province of a Court of appeal. A power of review is not to be confused with Appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court. 6. The decision in Aribam's case (supra) has been followed by the Supreme Court in the case of Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury wherein the Hon'ble Court has reiterated that an error apparent on the face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any long drawn process of reasoning. 7. In a later decision in the case of Parsion Devi and Others Vs. 7. In a later decision in the case of Parsion Devi and Others Vs. Sumitri Devi and Others the Supreme Court relying upon the decisions in the cases of Aribam's (supra) and Smt. Meera Bhanja (supra) observed as under: Under Order XLVII, Rule 1, CPC a Judgment may be open to review inter alia, if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII, Rule 1, CPC. In exercise of the jurisdiction under Order XLVII, Rule 1, CPC it is not permissible for an erroneous decision to be reheard' and corrected. A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise. 8. The ambit and scope of a review, as has been held in the aforementioned cases, has been considered, affirmed and reiterated in a recent decision of the Apex Court in the case of Haridas Das Vs. Smt. Usha Rani Banik and Others wherein the Hon'ble Court observed as under: In order to appreciate the scope of a review, Section 114 of the CPC has to be read, but this Section does not even adumbrate the ambit of interference expected of the Court since it merely states that it "may make such order thereon as it thinks fit." The parameters are prescribed in Order XLVII of the CPC and for the purposes of this lis, permit the Defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason." The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the explanation in Rule 1 of the Order XLVII which states that the fact that the decision on a question of law on which the Judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such Judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection. 9. On a analysis of the aforesaid decisions, the position of law that crystallizes is that the power of review is available only when there is a mistake or an error apparent on the face of the record and not for correcting an erroneous decision. Hence a plea that the decision is erroneous on merit due to wrong interpretation of law or because of illegal and erroneous finding, whether on fact or in law, cannot be a ground for review. The said power of review cannot be exercised for re-hearing and correcting an erroneous decision. The only remedy available to the aggrieved party, is to assail such erroneous decision in appeal. The power to review is a restricted power which authorizes the Court or the Tribunal, which passed the Judgment sought to be reviewed, to look over through the Judgment, not in order to substitute a fresh or a second Judgment but in order to correct it or improve it, because some material which it ought to have considered had escaped its consideration or failed to be placed before it for any other reason. 10. In view of the law as discussed above, with regard to the scope of review, the plea that the points have not been dealt with in proper perspective in the JUDGMENT cannot be a ground for review, so long as the points have been dealt with and answered. 10. In view of the law as discussed above, with regard to the scope of review, the plea that the points have not been dealt with in proper perspective in the JUDGMENT cannot be a ground for review, so long as the points have been dealt with and answered. Hence the plea of the review Petitioner that this Court has not correctly appreciated the ambit and scope of Section 11-A of the Industrial Disputes Act, or that the ratio of the decisions of the Apex Court relied upon in the order sought to be reviewed, has been erroneously applied, cannot be the basis for maintaining this review application. Applying the principles of law as discussed above to the facts of the present case, the conclusion is irresistible that the review application as laid is not maintainable and the same is accordingly dismissed. Final Result : Dismissed