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2013 DIGILAW 1949 (MAD)

D. Swaminathan v. Presiding Officer, Chennai

2013-06-07

ELIPE DHARMA RAO, M.VENUGOPAL

body2013
JUDGMENT M. Venugopal, J. 1. Learned counsel for the Review Applicant submits that the order passed by this Court dated 25.4.2012 in W.A. No.437 of 2011 is contrary to law, weight of evidence and probabilities of case. 2. Advancing his arguments, it is the submission of the learned counsel for the Review Applicant that this Court, in W.A. No.437 of 2011, on 25.4.2012, has erroneously held that there is no infirmity in the order passed by the first respondent/Principal Labour Court, which has been confirmed by the learned single Judge in W.P. No.37919 of 2005 and further learned Judge imposed the punishment of five increments cut. The said findings are opposed to law, inasmuch as the first respondent/Principal Labout Court, Chennai has already awarded the punishment of alternative employment to the Review Applicant, under which he was posted as Diesel Filler, which is not the equivalent post. 3. It is the contention of the learned counsel for the Review Applicant that the first Respondent/Principal Labour Court has not granted backwages, which normally shall be due on passing an order of reinstatement. 4. That apart, it is the prime contention of the learned counsel for the Review Applicant that the materials before this Court point out that the Review Applicant has involved 22 times in committing the offence. In this regard, this Court has erroneously held so and has not interfered with the award of the Labour Court. 5. Learned counsel for the Review Applicant relies on the decision of the Orissa High Court in A.I.R. 1957 Orissa 222 reported in the case of Syamsundar Misra v. The State, wherein it is held as follows:- "Held further that the Special Officer had also committed a serious irregularity in taking into consideration nine other charges which had been framed by the Chairman and Executive Authority of the Municipality on a previous occasion against the petitioner for it is highly improper to take into consideration some other charges against a public servant which were not included in the charges that he was called upon to meet and then to use these charges as an aggravating circumstance for passing the maximum punishment." 6. According to the Learned counsel for the Review Applicant, the Review Applicant has not been provided with an opportunity to defend his case as to his involvement of 22 times in committing the offence. According to the Learned counsel for the Review Applicant, the Review Applicant has not been provided with an opportunity to defend his case as to his involvement of 22 times in committing the offence. Therefore, the observation of this Court in W.A. No.437 of 2011 by virtue of order dated 25.4.2012 is not a correct one. 7. At this juncture, we deem it appropriate to point out that while dismissing the writ appeal in W.A. No.437 of 2011 dated 25.4.2012, in paragraph 6, this Court has observed as follows:- "6. From the charges framed and on going through the Award of the Labour Court, it cannot be said that the Labour Court without considering the materials on record, had passed a short order. The Labour Court considering the charges framed and the punishment imposed, had taken a lenient view by directing the Department to provide alternative employment. The learned single Judge, though found that the charges are grave, confirmed the findings of the Labour Court. In other words, it is to be stated that both the Labour Court and the learned single Judge have taken a very lenient view in the matter. The materials placed before this Court, on the other hand, show that he has involved 22 times in committing the offences. Considering the materials placed, the learned Judge has rightly not interfered with the Award passed by the Labour Court. As such, we see no illegality or infirmity so as to interfere with the order of the learned single Judge. Accordingly, the Writ Appeal is dismissed. However, there will be no order as to costs. Consequently, connected Miscellaneous Petition is closed." 8. From the above observation made by this Court in W.A. No.437 of 2011 dated 25.4.2012, it is quite evident that this Court has only made a passing reference in the aforesaid paragraph to the effect that the materials placed before this Court on the other hand shows that the Review Applicant/Appellant has involved 22 times in committing the offence. Therefore, it cannot be said that by any stretch of imagination, this Court has borne in mind that the offence committed by the Review Applicant for 22 times. Therefore, it cannot be said that by any stretch of imagination, this Court has borne in mind that the offence committed by the Review Applicant for 22 times. One cannot at this stage brush aside the fact that this Court, after going through the award of the first Respondent/Principal Labour Court and also the order of the learned single Judge, opined that both the Labour Court and the learned single Judge have taken a very lenient view in the matter in issue. 9. It is to be borne in mind that the term 'review' judicially and literally refers to the re-consideration/re-examination and the underlying principle is one of all human fallibility. Further, re-appreciation of evidence by the Review Court is beyond the scope of review jurisdiction, in the considered opinion of this Court. Also that under the guise of review, this Court would not re-hear the parties on point of law afresh. Moreover, omission to cite an authority of law is not a ground to review the order, which is the subject matter in issue. 10. In short, if a party is aggrieved by an order/judgment, which, in his point of view/understanding, has not been correctly decided in accordance with law or erroneously decided, then such argument can be agitated before the Higher Forum in appropriate appeal proceedings, as opined by this Court. As a matter of fact, 'review' erases the earlier order/judgment and operates as law from the very beginning. 11. Coming to the aspect of filing of the present Review Application by the Review Applicant/Appellant, it is to be pointed out that the Review Applicant has not quoted the provision of law under which he has filed the present Review Application. Obviously, the Review Applicant has to keep in mind Section 114 and Order 47 Rule 1 of the Civil Procedure Code, which speaks of filing of review. 12. It is to be remembered that the review application will lie only when there has been an error apparent on the face of record (as distinct from various decisions) in regard to the order passed by the concerned Court or there has been a mistake in that regard. 12. It is to be remembered that the review application will lie only when there has been an error apparent on the face of record (as distinct from various decisions) in regard to the order passed by the concerned Court or there has been a mistake in that regard. As far as the present case is concerned, on going through the entire gamut of the matter, we are of the considered opinion that the Review Applicant has not made out a case to review the judgment dated 25.4.2012 in W.A. No.437 of 2011. As such, the Review Application fails and the same is liable to be dismissed. 13. In the result, the Review Application is dismissed. However, there shall be no order as to costs.