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2009 DIGILAW 951 (KER)

Arun George v. State of Kerala

2009-10-07

ANTONY DOMINIC, PIUS C.KURIAKOSE

body2009
ORDER Antony Dominic, J 1. RP No.101 is filed by Respondents 1 to 8 in W. A. No. 2529/05 and RP No.180/08 is filed by the Kerala Private College Management Association and the Manager, Morning Start Home Science College, Angamaly, seeking review of the judgment in W.A.No.2529/2005, after having obtained leave to file the review petition, as per order dated 06.02.2008 in I.A.No.23/2008. 2. Pleadings in these review petitions are almost identical and hence we shall make reference to the pleadings in RP No.101/2008 for convenience. 3. W.A. No. 2529/2005 was filed by the Respondents 1 to 3 herein, aggrieved by the judgment of the Learned Single Judge in WPC No.482 of 2004. By the said judgment the Division Bench, allowed the Writ Appeal and held that the courses sanctioned by the Government as per Exts.P2 and P2 (a), were conditional and that therefore the Government did not have the liability to pay salary and other benefits to petitioners 1 to 7 herein who were appointed to the vacancies which arose consequent on the commencement of the courses. 4. The contention raised by the review petitioners are that the judgment was rendered without adverting to the provisions of the University Act, the Statutes, the Direct Payment Agreement and the judgments of this Court as also that of the Apex Court. It is contended that the judgment is vitiated due errors apparent on the face of it, warranting review. In support of the Review Petition, counsel for the petitioners relied on the following judgments and the principles laid down therein, generally, are as under: i. If the attention of the court is not drawn to a material statutory provision during the original hearing the court will review its judgment. (Northern India Caterers (India) Ltd., v. Lt. Governor of Delhi - 1980 (2) SCC 167 ) ii. Failure of the court to take into consideration an existing decision of the Supreme Court taking a different or contrary view on a point covered by its judgment, would amount to a mistake or error apparent on the face of the record. (The Nalagarh Dehati Co-operative Transport Society Ltd., Nalagarh v. Beli Ram and Others AIR 1981 HP 1 (FB)) iii. (The Nalagarh Dehati Co-operative Transport Society Ltd., Nalagarh v. Beli Ram and Others AIR 1981 HP 1 (FB)) iii. If a particular person is a necessary party and a decision has been rendered without impleading the necessary party, the proper course to be adopted is to make an appropriate petition to re-open the judgment, and to get himself impleaded as a party and seek review of the judgment. (Ramachandran v. Food Corporation of India - 1989 (2) KLT 112 ). iv. The powers of the High Court under Article 226 are plenary powers and are not fettered by legal constraints and while exercising these powers, if the court has committed a mistake, it has the plenary power to correct the same (A registered Society v. Union of India and Others- 1999 (6) SCC 179). Justice is a virtue that transcends all barriers and the rules of procedures or technicalities cannot stand in the way of administration of justice and law has to bend before justice. If court finds that the error pointed out was committed under a mistake and that the earlier judgment would not have been passed but for the erroneous assumption, which in fact did not exist or its perpetration shall result in a miscarriage of justice, nothing would preclude the court from rectifying the error. (Lily Thomas and Others v. Union of India and Others - 2000 (6) SCC 224 ) vi. The words `sufficient reason' in Order 47 Rule 1 of the Code are vide enough to include, a misconception of factor law by a court or even an Advocate, and that an application for review may be necessitated by way of invoking the doctrine `actus curiae neminem gravabit' (Board of Control for Cricket in India and another v. Nataji Cricket Club and Others - 2005 (4) SCC 741 ). vii. When an inferior court overlooks the binding decision of the Apex Court and renders a decision contrary to the law already laid down by the Apex Court, such a decision is one that is vitiated by an error apparent on the face of the record, to justify review of the decision. (E.S.I.Corporation v. Rajagopal Textile Mills (P) Ltd. - 2006 (4) KLT 730 ). viii. An error to be one apparent on the face of the record, need not be limited to errors of fact, but could extend to errors of law as well. (E.S.I.Corporation v. Rajagopal Textile Mills (P) Ltd. - 2006 (4) KLT 730 ). viii. An error to be one apparent on the face of the record, need not be limited to errors of fact, but could extend to errors of law as well. If mistake is apparent, be it of law or of fact, on a perusal of the records, then an application for review would lie and the court may also re-open its judgment, if a manifest wrong has been done. (Sathy v. Thara - 2007 (2) KLT SN 13 (Case No.19)) On the other hand, the learned Government Pleader contended that there is no error apparent on the face of the judgment, that no miscarriage of justice has been caused and that the petitioners could not make out a case that despite due diligence, they could not obtain any judgment or any record, before the writ appeal was heard. It was further contended that the fact that this court was wrong in having taken a particular view in a judgment and that, on the materials available, another view is also possible, is no reason invoke the review power inherent in this court. 5. Learned Government Pleader also relied on the following judgments, and the propositions laid down therein, can be summarised, as under: (I) A review is, by no means an appeal in disguise, whereby an erroneous decision is reheard and corrected, but lies only for correcting patent errors (Thungabhadra Industries Ltd. v. The Govt. of Andhra Pradesh- AIR 1964 SC 1372 ). (ii) Review is maintainable only if an apparent error or a mistake on the face of the judgment is made out, or that it should be shown that the new pleas are based on any matter, which could not, despite due diligence, be discovered or produced earlier at the appropriate stage.(Dr. Mohd. Yasin v. University of Kashmir, Srinagar and Others - AIR 1974 SC 2341 ). (iii) Once an order has been passed by a court, a review thereof must be subject to the rules of the game, which cannot be lightly entertained, and a reluctant resort to it is proper, only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. (Sow Chandra Kante and another v. Sheikh Habib - 1975 (1) SCC 674 ). (Sow Chandra Kante and another v. Sheikh Habib - 1975 (1) SCC 674 ). (iv) If the view adopted by the court in the original judgment is a possible view, having regard to what the record states; it is difficult to hold that there is an error apparent on the face of the record. (Northern India Caterers (India) Ltd., v. Lt. Governor of Delhi - AIR 1980 SC 674 ). 6. Bearing in mind the aforesaid legal principles, we shall now proceed to examine whether the petitioners have made out a case for review of the judgment, as prayed for by them. During the hearing of these review petitions extensive reference was made to the various provisions of the University Act, the Statutes, the Direct Payment Agreement and the decisions dealing with the impact of the Direct Payment Agreement such as State of Kerala v. Devasy Manjooran (1977 K.L.T. 110), was referred to. The Division Bench judgment in Fr. Mathew Meleparambil v. State of Kerala ( 2008 (4) KLT 643 , which of course was rendered subsequent to the judgment under review, was also relied on. In addition to all this, the Apex Court judgment in Chandigarh Administration and Others v. Rajni Vali (Mrs) and Others 2000 (2) SCC 42 , which was rendered in almost similar factual circumstances as obtaining in these cases was also relied on. That apart, Annexures A1 to A23, which includes, documents obtained as per Annexure A7 request made under Right to Information Act and obtained subsequent to the judgment under review also were relied on. 7. Having gone through the statutory provisions, documents produced and the judgments referred to and also the facts brought on record by the affidavits filed in these review petitions, we are inclined to find that the Division Bench did not advert to relevant statutory provisions or the Direct Payment Agreement and facts which are relevant to issue, as a result of which grave injustice has been caused to the review petitioners. Secondly, the documents/ information, obtained by the Review Petitioners are those which were fully in the custody and control of the respondents themselves and respondents also do not have a case that the review petitioners were even aware of them. Further the petitioners have pleaded in the affidavits filed that they were unaware of these materials, which stands uncontroverted. Secondly, the documents/ information, obtained by the Review Petitioners are those which were fully in the custody and control of the respondents themselves and respondents also do not have a case that the review petitioners were even aware of them. Further the petitioners have pleaded in the affidavits filed that they were unaware of these materials, which stands uncontroverted. Further, the conclusion in the judgment that Direct Payment Agreement do not apply to course subsequently commenced, is directly contrary to Clause 35 of the Agreement, which is not even referred to in the judgment. We are also satisfied that the facts of these cases are incomparable with those dealt with in the judgment in Amina vs. State of Kerala ( 2004 (1) KLT 657 ) and that it was without appreciating this fundamental difference, that the said judgment was overruled by the Division Bench. Therefore in our view, the judgment is vitiated for errors apparent on the face of record calling for exercise of power of review conferred on this Court. 8. Accordingly, we allow the petitions. The judgment in W.A.No.2529 of 2005 will stand reviewed and recalled. R.P.No.983/07 is filed seeking review of the judgment in WP (c).No.30527/05 and R.P.No.55/08 is filed seeking review of the judgment in WP(c).No.939/06. These writ petitions were also disposed of along with W.A. No.2529/05. In view of our order in R.P.No.101/08 & 180/08 reviewing the judgment in W.A. No.2529/05, R.P.Nos.983/07 & 55/08 will also stand allowed and the judgments are also recalled.