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2017 DIGILAW 312 (ORI)

State of Odisha v. Pravakar Shasini

2017-03-22

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. Both the cases have been taken up together since the issue involved in this two petitions are the same, the opposite party in the review petition is the petitioner in W.P.(C) No.10702 of 2014 who has filed for compliance of the order passed by the Tribunal in O.A.No.26(C) of 1993 which is the subject matter of review, hence both the cases have been taken up together and the same are being disposed of as follows. 2. This review petition has been filed for reviewing the order passed by this Court in W.P.(C) No.14062 of 2009 dated 12.2.2013. Learned counsel representing the review petitioner/State of Odisha has submitted that the order needs to be reviewed for the reason that certain documents could not have been produced before the Tribunal i.e. letter dated 28.8.1986 and letter dated 7.7.1977. Learned counsel representing the applicant/opposite party has submitted that the instant review petition may not be entertained for the reason that the applicant has approached the Tribunal for regularization in service as Peon vide O.A.No.26(C) of 1993 which was decided on 20.8.1993 and in spite of repeated direction passed by the Tribunal, the State authority had not appeared not only that the District Inspector of Schools, Anandpur was summoned to appear before the Court for not giving instruction to the learned Government Advocate but even thereafter counter affidavit has not been filed, hence the writ petition has been decided in favour of the applicant with cost of Rs.3000/- to be paid by the State Government to the applicant, against which a review petition was filed being Review Petition No.44(C) of 1998 which was disposed of on 6.11.2007, learned Tribunal holding that there is no error apparent on the face of the record, has refused to interfere. The State authority has filed writ petition before this Court being W.P.(C) No.14062 of 2009, a coordinate Bench of this Court, after taking into consideration the fact that in spite of sufficient opportunity having been provided to the State, no counter affidavit has been filed by taking into consideration the fact that the applicant was appointed as a Peon in Bairagi M.E. School, Nandipada as per the resolution of the managing committee on 17.9.1979. The District Inspector of Schools had recommended the case of the applicant to the Director for approval and as per the instruction issued to the Director of Elementary Education that the employee appointed in the M.E. School prior to 1.1.1981 may be allowed to continue in service and their services be regularized, rejected the review application. The order passed by a Coordinate Bench of this Court is under review in the instant review petition on the ground that two documents having not been brought on record before the Tribunal. It has been submitted that there is lack of negligence on the part of the State authority and after lapse of about 24 years from the original order the instant review application may not be entertained. 3. We have heard learned counsel for the parties and perused the materials available on record. 4. It is not in dispute that the power to review is the creation of a statue. It must be conferred by law either specifically or by necessary implication. Review is not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the court finds that the error pointed out in the review petition was under mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration had resulted in miscarriage of justice, then certainly this can be said to be ground for review, but the mere fact that different views on the same subject are possible, cannot be said to be a ground to review the earlier judgment passed by a Court of Law. This Court has considered the judgment of Hon’ble Apex Court regarding width and scope of power of review as has been rendered in the case of Moran Mar Basselios Catholicos and Anothers Vrs. Most Rev. Mar Poulose Athanasius and Others, reported in AIR 1954 SC 526 particularly at paragraph 32 which reads as under. “32. Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. Most Rev. Mar Poulose Athanasius and Others, reported in AIR 1954 SC 526 particularly at paragraph 32 which reads as under. “32. Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order XLVII, Rule I of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified, grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason.” In the case of Shivdev Singh v. State of Punjab, reported in AIR 1963 SC 1909 , in a review petition filed under Order 47, Rule 1 C.P.C., the Supreme Court held that the power of review of its own order by the High Court inheres in every Court of plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it. In doing so, the Court was only upholding the principles of natural justice. This decision indicates that the Court's power of review while exercising jurisdiction under Article 226 of the Constitution extends to correct all errors to prevent miscarriage of justice. The judgment rendered by Hon’ble Apex Court in the case of Sow. Chandra Kanta and Another Vrs. Sheik Habib reported in AIR 1975 SC 1500 wherein it has been held that - “A review of a judgment is a serious step and 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. Chandra Kanta and Another Vrs. Sheik Habib reported in AIR 1975 SC 1500 wherein it has been held that - “A review of a judgment is a serious step and 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. A mere repetition through different counsel of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient.” It is the settled proposition as has been held by Hon’ble Apex Court in the judgment discussed herein above the scope of review which can only be done in case of discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, mistake or error apparent on the face of the record and for any other sufficient reason and in the light of this legal position the fact of these review petitions need to be appreciated. 5. So far as the fact of the instant case is concerned, the applicant/opposite party has approached the Tribunal in O.A.No.26(C) of 1993 and the Tribunal has passed order on 20.8.1993. It is apparent from the order passed by the Tribunal in O.A.26(C) of 1993 that in spite of sufficient time having been provided, no counter affidavit has been filed, even the District Inspector of Schools was directed to appear but even thereafter counter affidavit has not been filed, the Tribunal, having no option, has passed order on the basis of the materials available on record. 6. The State authority had filed Review petition being Review Petition No.44(C) of 1998 which was dismissed vide order dated 6.11.2007 by holding that there is no error apparent on the fact of the record. The order passed in Review Petition No.44(C) of 1998 has been challenged before this Court in W.P.(C) No.14602 of 2009 and a Coordinate Bench of this Court has dismissed the review petition vide order dated 12.2.2013 which has been sought to be reviewed by the instant review petition on the ground that certain relevant documents could not have been produced before the Tribunal which was necessary for its adjudication. 7. 7. We, on appreciation of the fact, have found that sufficient opportunity had been granted by the tribunal as would be evident from the order passed in O.A.No.26(C) of 1993, Tribunal having no option has decided the issue on the basis of the materials placed before it, thus the parties will not be allowed to take plea that certain documents were relevant but it was not brought on record, so the order be reviewed since that cannot be a ground for review due to the limited scope of review. State authority has committed gross latches in not representing their case before the competent court of law. Taking into consideration these aspects of the matter and considering the fact that the original order was passed way back on 20.8.1993, the issue which has already been closed, cannot be reopened after lapse of 24 years from the date of the original order. Further, on the basis of the principle to entertain review, the petitioners have failed to make out any case to review the order passed by this Court. 8. Learned counsel representing the State of Orissa has submitted that certain documents are necessary to be produced for proper adjudication of the issue, but why that documents has not been produced before this Court in W.P.(C) No.14062 of 2009, has not been disclosed in the writ petition while the order passed in the writ petition clearly stipulates that the School and Mass Education Department has been represented through his counsel Mr. Rath and after appreciating the argument advanced on behalf of the parties the writ petition has been dismissed. We, on taking into consideration of these factual aspects, are not inclined to review the order passed by this Court in W.P.(C) No.14062 of 2009. W.P.(C) No. 10702 of 2014. 9. In W.P.(C) No.10702 of 2014, the writ petitioner has prayed for a direction upon the opposite parties to file the full compliance of the order dated 20.8.1993 passed in O.A.No.26(C) of 1993. So far as prayer of the instant writ petition is concerned, same is for implementation of the order passed by the Orissa Administrative Tribunal, Cuttack Bench. According to our conscious view, the High Court sitting under Articles 226 and 227 of the Constitution of India cannot be an implementing Court for an order passed by the Tribunal, rather remedies is available under the Administrative Tribunal Act, 1985. According to our conscious view, the High Court sitting under Articles 226 and 227 of the Constitution of India cannot be an implementing Court for an order passed by the Tribunal, rather remedies is available under the Administrative Tribunal Act, 1985. Accordingly the writ petition is dismissed. However, petitioner it is liberty, if so advised, to approach the remedy available to him. 10. In the result, both the review petition and the writ petition are dismissed.