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2017 DIGILAW 1197 (ALL)

VIRENDRA SINGH v. BANARAS HINDU UNIVERSITY, VARANASI

2017-05-05

ANJANI KUMAR MISHRA, DILIP GUPTA

body2017
JUDGMENT By the Court.—The petitioner has filed this review application for review of the judgment and order dated 19 February 2015 by which the writ petition has been dismissed. The writ petition had been filed to assail the order dated 26 April 2014 by which the petitioner was informed by the Department of Civil Engineering in the Indian Institute of Technology (the Institute) that in view of the complaint that was received from a girl student of his Department regarding allegation of sexual misconduct and in view of the report submitted by the Women’s Grievance Cell which examined the complaint, his re-employment as a Professor in the Institute stands discontinued with immediate effect. It needs to be stated that the petitioner retired as Dean in the Faculty of Engineering and Technology of the Banaras Hindu University, Varanasi in January 2011 but was subsequently re-employed as a Professor in the Institute. 2. The petitioner had filed Special Leave to Appeal No. 21250 of 2015 to assail the aforesaid judgment and order dated 19 February 2015. The Supreme Court on 17 August 2015 dismissed the Special Leave Petition and the order is reproduced below: “Heard learned Senior Counsel appearing for the petitioner. No ground for interference is made out, in exercise of our discretion under Article 136 of the Constitution of India. The special leave petition is dismissed.” 3. A preliminary objection has been raised by learned counsel for the University that the review application should not be entertained as it was filed on 3 February 2016 after the Special Leave Petition filed by the petitioner against the judgment sought to be reviewed was dismissed on 17 August 2015. 4. Learned counsel for the applicant has, however, submitted that the review application can be filed even after the dismissal of the Special Leave Petition as it was not decided on merits. 5. We have considered the submissions advanced by learned counsel for the parties. 6. The issue that arises for consideration is whether this review application which was filed on 3 February 2016 can be entertained after the dismissal of the Special Leave Petition on 17 August 2015. The Supreme Court while dismissing the Special Leave Petition observed that no good ground for interference under Article 136 of the Constitution had been made out. 7. The issue that arises for consideration is whether this review application which was filed on 3 February 2016 can be entertained after the dismissal of the Special Leave Petition on 17 August 2015. The Supreme Court while dismissing the Special Leave Petition observed that no good ground for interference under Article 136 of the Constitution had been made out. 7. This issue was examined by the Supreme Court in Abbai Maligai Partnership Firm and another v. K. Santhakumaran and others, (1998) 7 SCC 386 . It was observed that the High Court had no power or jurisdiction to review the order which was the subject-matter of a challenge in a Special Leave Petition that had been dismissed and the observations are : “4. The manner in which the learned Single Judge of the High Court exercised the review jurisdiction, after the special leave petitions against the selfsame order had been dismissed by this Court after hearing learned counsel for the parties, to say the least, was not proper. Interference by the learned Single Judge at that stage is subversive of judicial discipline. The High Court was aware that SLPs against the orders dated 7.1.1987 had already been dismissed by this Court. The High Court, therefore, had no power or jurisdiction to review the selfsame order, which was the subject-matter of challenge in the SLPs in this Court after the challenge had failed. By passing the impugned order on 7.4.1994, judicial propriety has been sacrificed. After the dismissal of the special leave petitions by this Court, on contest, no review petitions could be entertained by the High Court against the same order. The very entertainment of the review petitions, in the facts and circumstances of the case, was an affront to the order of this Court. We express our strong disapproval and hope there would be no occasion in the future when we may have to say so. The jurisdiction exercised by the High Court, under the circumstances, was palpably erroneous. The respondents who approached the High Court after the dismissal of their SLPs by this Court, abused the process of the Court and indulged in vexatious litigation. We strongly deprecate the manner in which the review petitions were filed and heard in the High Court after the dismissal of the SLPs by this Court. The appeals deserve to succeed on that short ground. We strongly deprecate the manner in which the review petitions were filed and heard in the High Court after the dismissal of the SLPs by this Court. The appeals deserve to succeed on that short ground. The appeals are, consequently, allowed and the impugned order dated 7.4.1994 passed in the review petitions is hereby set aside. The respondents shall pay Rs. 10,000 as costs.” (emphasis supplied) 8. However, in Kunhayammed v. State of Kerala, (2000) 6 SCC 359 , the Supreme Court observed that dismissal of a Special Leave Petition in limine by a non-speaking order may not be a bar for entertaining a review petition. 9. In K. Rajamouli v. A.V.K.N. Swamy, (2001) 5 SCC 37 , the Supreme Court considered the ratio of the judgments in Abbai Maligai Partnership Firm and Kunhayammed and observed that if the review petition had been filed in the High Court prior to the filing of the Special Leave Petition and the review petition was decided, the Special Leave Petition against the order in the review petition would be maintainable. However, if the review petition was filed subsequent to the dismissal of the Special Leave Petition, it would amount to abuse of the process of the Court and would be governed by the ratio of the judgment in Abbai Maligai Partnership Firm and the observations of the Supreme Court are : “4. Following the decision in the case of Kunhayammed and others (supra) we are of the view that the dismissal of the special leave petition against the main judgment of the High Court would not constitute res judicata when a special leave petition is filed against the order passed in the Review Petition provided the review petition was filed prior to filing of special leave petition against the main judgment of the High Court. The position would be different where after dismissal of the special leave petition against the main judgment a party files a review petition after a long delay on the ground that the party was prosecuting remedy by way of special leave petition. In such a situation the filing of review would be an abuse of the process of the law. The position would be different where after dismissal of the special leave petition against the main judgment a party files a review petition after a long delay on the ground that the party was prosecuting remedy by way of special leave petition. In such a situation the filing of review would be an abuse of the process of the law. We are in agreement with the view taken in Abbai Maligai Partnership Firm (supra) that if High Court allows the review petition filed after the special leave petition was dismissed after condoning the delay, it would be treated as an affront to the order of the Supreme Court. .......” (emphasis supplied) 10. The Supreme Court in Meghmala and others v. G. Narasimha Reddy and others, (2010) 8 SCC 383 , after considering its earlier decisions in Abbai Maligai Partnership Firm, Kunhayammed and K. Rajamouli also observed that if the review application is filed after the dismissal of the Special Leave Petition, it would amount to abuse the process of the Court and the observations are : “25. Thus, the law on the issue stands crystallized to the effect that in case a litigant files a review petition before filing the Special Leave Petition before this Court and it remains pending till the Special Leave Petition stands dismissed, the review petition deserves to be considered. In case it is filed subsequent to dismissal of the Special Leave Petition, the process of filing review application amounts to abuse of process of the Court.” 11. In Sunil Kumar v. State of Haryana, (2012) 5 SCC 398 , the Supreme Court again in paragraph 9 reiterated that a review petition cannot be filed in the High Court after the dismissal of the Special Leave Petition and the observations are as follows: “9. Learned counsel for the petitioner placed a very heavy reliance on the judgment of this Court in Kunhayammed and others v. State of Kerala and another, (2000) 6 SCC 359 , wherein this Court has held that in case the special leave petition is dismissed by this Court in limine, party aggrieved may file a review petition before the High Court. The said judgment has been explained in various subsequent judgments observing that in case the review petition has been filed before the High Court prior to the date the special leave petition is dismissed by this Court, the same may be entertained. However, a party cannot file a review petition before the High Court after approaching the Supreme Court as it would amount to abuse of process of the Court. (See: Meghmala and others v. G. Narasimha Reddy and others (2010) 8 SCC 383 ).” 12. Thus, in view of the aforesaid decisions of the Supreme Court, the review application deserves to be rejected for the reason that the review application was field on 3 February 2016 after the dismissal of the Special Leave Petition on 17 August 2015. 13. Even otherwise, we are not satisfied that any good ground has been made out for review of the judgment. 14. The only submission advanced by learned counsel for the applicant is that it has been noted in the judgment that the Board of Directors of the Institute had taken a decision to discontinue the re-employment of the applicant as a Professor in the Department of Civil Engineering of the Institute but such a decision was actually not taken since it was taken by the Director of the Institute. 15. The Division Bench in its judgment dated 19 February 2015 has at many places referred to the order dated 26 April 2014 as having been passed by the Director of the Institute who is the Chairperson of the Board of Directors but at one place it noted that the order was of the Board of Directors of the Institute. The petition was dismissed for the reason that the order that was passed by the Chairperson of the Board of Directors of the Institute to discontinue the re-employment of the petitioner as a Professor in the Department of Civil Engineering of the Institute did not suffer from any illegality so as to call for interference under Article 226 of the Constitution. It cannot, therefore, be urged on behalf of the applicant that the Division Bench had proceeded on the footing that the Board of Directors had taken a decision to discontinue the re-employment of the applicant. 16. The review application is, accordingly, rejected.