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2017 DIGILAW 1103 (ORI)

N. T. P. C. Power Workers Union v. National Thermal Power Corporation

2017-09-22

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. 1. This Review Petition has been filed by the petitioner asking for review of the judgment of this Court dated 19.1.2016 passed in O.J.C. No.12760 of 1998. 2. Filing the Review Petition petitioner sought for review of this Court’s final judgment passed in O.J.C. No.12760 of 1998 on pension, work order and holiday but during course of argument, Sri S.K. Mishra, learned counsel for the petitioner confined his argument only in respect of pension involving the judgment. 3. Referring to the discussions in the matter of pension by this Court in the judgment sought to be reviewed available in the internal page-22 running page-41 of the brief, Sri S.K. Mishra, learned counsel for the petitioner contended that the findings arrived therein in the matter of pension remains perverse for being contrary to the pleadings as well as materials available on record. Sri Mishra, further referring to the discussions in paragraph-26 and some portions from paragraph-3.3 of Annexure-3, the counter of the petitioner to the additional affidavit by the Management attempted to justify his claim that the finding so far it relates to pension is perverse to the materials available on record. It is on the above premises, Sri Mishra, learned counsel for the petitioner sought for review of the judgment involved herein. 4. Taking this Court to the provision contained at Order 47 Rule 1 of C.P.C Sri Mishra, learned counsel for the petitioner further contended that for the pleadings in the review application and the submissions made during course of hearing the petitioners have a case for review and thus requested for allowing the Review Petition at least so far it relates to pension. It is made here clear that in spite of petitioners confining on the issue of pension involving the review petition, learned counsel for the petitioner again filed a written note of submission involving all the issues raised therein. Sri Mishra, learned counsel for the petitioners confining his argument only on pension this Court confines the review application on the issue of pension only. 5. Sri Mishra, learned counsel for the petitioners confining his argument only on pension this Court confines the review application on the issue of pension only. 5. Sri A.N. Das, learned counsel for the O.P.2 confining his submission on the issue of pension referring to the pleadings in the counter affidavit as well as the additional affidavit involved in the writ petition, the submission made at the time of hearing of the writ petition and further referring to the pleadings in the counter affidavit to the Review Petition submitted that there is no view involving the judgment in O.J.C. No.12760 of 1998 perverse to the materials available on record. Sri Das, referring to the decision in the case of Sasi (Dead) through legal representatives versus Aravindakshan Nair and others as reported in (2017) 4 S.C.C 692 further submitted that for the support of the decision to the case of the Opp. Party No.2 and further for their being no perversity in the findings of the High Court in the judgment sought to be reviewed, there is no scope for review of the judgment involved. Sri Das thus, claimed for dismissal of the Review Petition. 6. Considering the rival contentions of the parties and on perusal of the averments particularly with regard to the question of pension in the writ petition, counter affidavit, the additional affidavit, further affidavit, the counter to subsequent affidavits filed therein, the pleadings in the review application involved in comparison to the observations and findings of this Court so far it relates to the question of pension, this Court nowhere finds either the observation or the findings involving pension remain contrary to the materials available on record. Learned counsel for the petitioner even though taken this Court to several pleadings and materials to establish their case but this court on each such scoring found the claim wrong. Scan of entire record by this Court also does not bring the case of the petitioners within the fold of review petition. There is no error apparent on the face of record nor there is any finding perverse or contrary to Law. Learned counsel for the petitioner’s attempt appears to be a challenge to the observations and the findings on merit, which is only possible in exercise of power of Appeal. Law is fairly well settled that a Court cannot sit as an appellate authority over its own judgment. 7. Learned counsel for the petitioner’s attempt appears to be a challenge to the observations and the findings on merit, which is only possible in exercise of power of Appeal. Law is fairly well settled that a Court cannot sit as an appellate authority over its own judgment. 7. Going through the settled position of law in the matter of review, this Court finds as follows:- (i) In the case of Sow. Chandra Kanta and another versus Sheik Habib as reported in AIR 1975 SC 1500 the Hon’ble Supreme Court in paragraph-I therein held as follows: “Once an order has been passed by this Court, a review thereof must be subject to the rules of the game and cannot be lightly claimed. A review of a judgment is a serious step and relevant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.” (ii) In the case of Smt. Meera Bhanja versus Smt. Nirmala Kumari Choudhury as reported in AIR 1995 S.C 455 in para 8 & 12 the Hon’ble Apex court held as follows: “8. It is 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 47, Rule 1, C.P.C In connection with the limitation of the powers of the Court under Order 47, Rule 1, C.P.C. In connection with the limitation of the powers of the Court under Order 47, rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047 , speaking through Chinnappa Reddy, J., has made following pertinent observations (para 3): “It is true there is nothing in Article 226 of the Constitution to preclude the 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. 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 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. 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.” Now it is also to be kept in view that in the impugned judgment, the Division bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the fact of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the fact of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137 , wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record: “An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the power of the superior Court to issue such a writ. 12. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the power of the superior Court to issue such a writ. 12. In our view the aforesaid approach of the Division Bench dealing with the review proceedings clearly shows that it has overstepped its jurisdiction under Order 47, Rule 1, C.P.C by merely styling the reasoning adopted by the earlier Division Bench as suffering from a patent error. It would not become a patent error or error apparent in view of the settled legal position indicated by us earlier. In substance, the review Bench has reappreciated the entire evidence, sat almost as Court of appeal and has reversed the findings regarding C.S. Plot No.74 were found to be erroneous, it would be no ground for reviewing the same, as that would be the function of an appellate Court. Learned counsel for the respondent was not in a position to point out how the reasoning adopted and conclusion reached by the Review Bench can be supported within the narrow and limited scope of Order 47, Rule 1, C.P.C Right or wrong, the earlier Division Bench judgment had become final so far as the High Court was concerned. It could not have been reviewed by reconsidering the entire evidence with a view to finding out the alleged apparent error for justifying the invocation of review powers. Only on that short ground, therefore, this appeal is required to be allowed. The final decision dated 8th July, 1986 of the Division Bench dismissing the appeal from appellate decree No.569 of 1973 insofar as C.S. Plot No.74 is concerned as well as the review judgment dated 5th September, 1984 in connection with the very same plot, i.e. C.S. Plot No.74, are set aside and the earlier judgment of the High Court dated 3rd August, 1978 allowing the Second Appeal regarding suit plot No.74 is restored. The appeal is accordingly allowed. The appeal is accordingly allowed. In the facts and circumstances of the case, there will be no order as to costs.” (iii) Similarly in the case of Lily Thomas versus Union of India and others as reported in AIR 2000 SC 1650 the Hon’ble Apex Court in clear terms held that scope of review does not mean error which has to be fished out and searched. Further, it should be something more than a mere error and it must be one which must be manifest on the face of the record taking a cue from AIR 1955 S.C. 233 . (iv) Similarly in the case of Sasi (Dead) through legal representatives versus Aravindakshan Nair and others reported in (2017) 4 S.C.C 692 the Hon’ble Supreme Court in paragraph nos.6 to 9 observed and held as follows: “6. The grounds enumerated therein are specific. The principles for interference in exercise of review jurisdiction are well settled. The Court passing the order is entitled to review the order, if any of the grounds specified in the aforesaid provision are satisfied. 7. In Thungabhadra Industries Ltd. v. State of A.P., the Court while dealing with the scope of review had opined: (AIR p. 1377, para 11) “11. What, however, we are now concerned with is whether the statement in the order of September, 1959 that the case did not involve any substantial question of law is an “error apparent on the face of the record”. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an “error apparent on the face of the record”, for 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.” 8. In Parsion Devi v. Sumitri Devi, the Court after referring to Thungabhadra Industries Ltd., Meera Bhanj v. Aribam Pishak Sharma, held thus: (Parision Devi case, SCC p. 719, para 9) “9. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.” 8. In Parsion Devi v. Sumitri Devi, the Court after referring to Thungabhadra Industries Ltd., Meera Bhanj v. Aribam Pishak Sharma, held thus: (Parision Devi case, SCC p. 719, para 9) “9. Under Order 47 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 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 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”.” 9. The aforesaid authorities clearly spell out the nature, scope and ambit of power to be exercised. The error has to be self-evident and is not to be found out by a process of reasoning. We have adverted to the aforesaid aspects only to highlight the nature of review proceedings.” 8. For the discussions of this Court hereinabove on the merit involving the Review application and settled position of law through the catena of decisions discussed hereinabove this Court finds, the petitioners failed in bringing their case under the scope of Review. The Review Petition thus fails. No cost.