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2017 DIGILAW 896 (MAD)

M. Gowrishankar v. Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Chennai

2017-04-05

K.K.SASIDHARAN, M.V.MURALIDARAN

body2017
ORDER : K.K. SASIDHARAN, J. These two review applications are at the instance of the appellant in the intra court appeals in W.A.Nos.885 of 2015 and 117 of 2016, filed against the order in Review Application No.305 of 2015, declining to review the order in W.P.No.2529 of 2013 and the other against the order dismissing the writ petition in W.P.No.2529 of 2013 denying backwages and the prayer is to review the order in both the review application and writ petition and hear the mater afresh along with the intra court appeals in W.A.Nos.884 of 2015 and 116 of 2016. Brief Facts: 2. The petitioner is an employee of State Bank of India (hereinafter referred to as the "Bank"). The Bank initiated disciplinary proceedings against the petitioner alleging various acts of misconduct and indiscipline. The Management of the Bank after conducting domestic enquiry imposed the punishment of removal from service. The petitioner raised a dispute. The Central Government referred the industrial dispute to the Central Government Industrial Tribunal-cum-Labour Court, Chennai for adjudication. The Central Government Industrial Tribunal passed an Award, dated 30 April 2012 in I.D.No.90 of 2006, whereby and where under, the punishment awarded by the Bank was set aside. The Industrial Tribunal directed the Bank to reinstate the petitioner into service forthwith without backwages, but with continuity of service and all other attendant benefits. The Award passed by the Industrial Tribunal was challenged by the Bank in the writ petition in W.P.No.24952 of 2012. The petitioner on his part challenged a portion of the Award with regard to denial of backwages in the writ petition in W.P.No.2529 of 2013. 3. The learned single Judge by way of a common order dated 17 October 2014 allowed the writ petition filed by the Bank in W.P.No.24952 of 2012 and dismissed the connected writ petition filed by the petitioner in W.P.No.2529 of 2013. 4. The petitioner filed two Review Applications before the learned single Judge in Rev.Aplw.Nos.308 of 2015 and 305 of 2015 to review the order in W.P.No.24952 of 2012 and 2529 of 2013 respectively. The Review Applications were dismissed by the learned single Judge, by order dated 2 June 2015. 5. The petitioner filed intra court appeals in W.A.Nos.884 and 885 of 2015 and W.A.Nos.116 and 117 of 2016 challenging the common order passed by the learned single Judge. 6. The Review Applications were dismissed by the learned single Judge, by order dated 2 June 2015. 5. The petitioner filed intra court appeals in W.A.Nos.884 and 885 of 2015 and W.A.Nos.116 and 117 of 2016 challenging the common order passed by the learned single Judge. 6. The Division Bench, by common judgment dated 4 February 2016 allowed the intra court appeals in W.A.No.884 of 2015 and 116 of 2016. The intra court appeals in W.A.Nos.885 of 2015 and 117 of 2016 were dismissed. The Division Bench after setting aside the common order in W.P.No.24952 of 2012 and 2529 of 2013, directed the Bank to reinstate the petitioner into service with continuity of service and all other attendant benefits. The Division Bench denied the petitioner backwages. 7. The Bank, feeling aggrieved by the judgment in W.A.Nos.884 of 2015 and 116 of 2016 filed review applications in R.A.Nos.48 and 49 of 2016. The Division Bench accepted the case of the Bank in the respective review applications and ultimately, allowed the review by order dated 17 June 2016. 8. The petitioner, thereafter, filed two review applications along with interlocutory applications for condoning the delay. The Division Bench condoned the delay and thereafter, numbered the Review Applications. The Review Applications are before us, pursuant to the order passed by the Hon'ble the Acting Chief Justice. Submissions: 9. The learned counsel for the petitioner contended that the Division Bench passed a common judgment allowing the writ appeals filed by the petitioner. The Bank filed review applications. The Review Applications were allowed. The petitioner was under the impression that being a common judgment, the entire matter would be at large, meaning thereby, he would be given an opportunity to argue the writ appeals filed by him on merits. According to the learned counsel, it was only when the earlier Division Bench made it clear that they would hear only the intra court appeals in W.A.Nos.884 of 2015 and 116 of 2016, the petitioner filed the review applications. According to the learned counsel, since it was a comprehensive judgment passed by the Division Bench, it would be in the interest of both the parties to hear the entire matter, instead of taking up the appeals filed by the Bank in W.A.Nos.884 of 2015 and 116 of 2016. According to the learned counsel, since it was a comprehensive judgment passed by the Division Bench, it would be in the interest of both the parties to hear the entire matter, instead of taking up the appeals filed by the Bank in W.A.Nos.884 of 2015 and 116 of 2016. The learned counsel further contended that the petitioner would be denied of an opportunity to make his submissions in W.A.No.117 of 2016 and 885 of 2015, in case, only the intra court appeals in W.A.Nos.884 of 2015 and 116 of 2016 are taken up for further hearing. It was the further contention of the learned counsel that the petitioner accepted the common judgment declining backwages in view of the direction for reinstatement. Since the Bank is given an opportunity to contest the intra court appeals in W.A.No.884 of 2015 and 116 of 2016, similar indulgence should be given to the petitioner also to put forth his case to sustain the plea for backwages. 10. The learned Senior Counsel for the Bank contended that the affidavit filed in support of the review applications would not satisfy the ingredients of Order 47 Rule 1 of the Code of Civil Procedure. According to the learned Senior Counsel, the so called bonafide impression that the entire common judgment, dated 4 February 2016 in the intra court appeals had been set aside would not be a ground to entertain the review applications. The learned Senior Counsel took us through the pleadings to substantiate his contention that only on account of certain substantial reasons, the Bank filed review applications. According to the learned Senior Counsel, the Division Bench, without including the writ appeals filed by the petitioners on board, made the Bank to argue all the intra court appeals together. The Bank therefore filed review applications. The Review Applications were allowed as it made out a case under Order 47 Rule 1 of CPC. However, no such ground is made out by the petitioner to review the common judgment in W.A.Nos.117 of 2016 and 885 of 2015. 11. The learned Senior Counsel placed reliance on string of judgments rendered by the Hon'ble Supreme Court:- (i) The judgment in Parison Devi and Others v. Sumitri Devi and others [ (1997) 8 SCC 715 ] was cited to canvass the point that review is maintainable only in case error is self-evident and does not require the process of reasoning. 11. The learned Senior Counsel placed reliance on string of judgments rendered by the Hon'ble Supreme Court:- (i) The judgment in Parison Devi and Others v. Sumitri Devi and others [ (1997) 8 SCC 715 ] was cited to canvass the point that review is maintainable only in case error is self-evident and does not require the process of reasoning. (ii) Ajit Kumar Rath v. State of Orissa and Others [ (1999) 9 SCC 596 ] was relied on to contend that power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. (iii) Haridas Das v. Usha Rani Banik (smt) and others [ (2006) 4 SCC 78 ] was relied on to contend that Order 47 Rule 1 CPC does not postulate re-hearing of the matter. (iv) Kamlesh Verma v. Mayawati and Others [(2013) (8) SCC 320] was cited to contend that repetition of arguments by a new counsel in the review is not enough to reopen the concluded matter invoking Order 47 Rule 1 of CPC. (v) Union of India v. Sandur Manganese and Iron Ores Limited and others [(2013) (8) SCC 337] was cited to contend that review is only for correction of mistake and not for substituting a view taken in the earlier judgment. Discussion: 12. The Award passed by the Industrial Tribunal at Chennai in I.D.No.90 of 2006 was the subject matter in the writ petition in W.P.Nos.24952 of 2012 and 2529 of 2013. The learned Single Judge allowed the writ petition filed by the Bank in W.P.No.24952 of 2012 and set aside the order directing reinstatement. The learned single Judge dismissed the writ petition filed by the petitioner in W.P.No.2529 of 2013 challenging the order denying him backwages. 13. The review applications filed thereafter by the petitioner were dismissed. 14. The petitioner filed four intra court appeals, challenging the common order in W.P.No.24952 of 2012 and 2529 of 2013 and the related orders in the review applications in R.A.Nos.308 and 305 of 2014. 15. The Division Bench considered all the writ appeals together and by way of a common judgment dated 4 February 2016 allowed the appeals in W.A.Nos.884 of 2015 and 116 of 2016 and directed the Bank to reinstate the petitioner into service. 15. The Division Bench considered all the writ appeals together and by way of a common judgment dated 4 February 2016 allowed the appeals in W.A.Nos.884 of 2015 and 116 of 2016 and directed the Bank to reinstate the petitioner into service. The writ appeal filed by the petitioner claiming backwages was dismissed. 16. The Division Bench pursuant to the review applications filed by the Bank restored the Writ Appeals in W.A.Nos.884 of 2015 and 116 of 2016. 17. The only question that arises for consideration is as to whether the petitioner has made out a case for review of the judgment in W.A.Nos.117 of 2016 and 885 of 2015. 18. The judgment dated 4 February 2016 indicates that the Division Bench took up all the four appeals together. We are now concerned only with the review of the judgment in the writ appeals relating to denial of backwages. 19. The Bank would be justified in its contention that the present review applications are not maintainable, in case, there was an independent consideration of the issue with regard to denial of backwages, unconnected with the issue raised in the writ appeals relating to reinstatement. 20. The Division Bench denied the petitioner backwages as a measure of punishment. This finding is supported by the observation made by the Division Bench in Paragraph 27 of the judgment. The relevant observation reads thus:- "27. In any event, after analysing the evidence on record, we are of the view that deprival of backwages from 2004, till passing of the Award dated 30.04.2012 itself for a period of eight years would be more than sufficient punishment, in the facts and circumstances of the case." 21. The observation made by the Division Bench would make the position clear that denial of backwages from 2004 was considered as the suitable punishment in the place of the punishment of removal from service awarded by the disciplinary authority and subsequently, by the learned single Judge. 22. Since it was a composite judgment dealing with both deprival of backwages and setting aside the order directing reinstatement, it would be in the interest of both the parties to invite a judgment on merits, taking into account the entire issue at large. 23. The petitioner secured favourable orders directing reinstatement on condition that he would be denied backwages. As stated earlier, deprival of backwages was in the nature of a punishment. 23. The petitioner secured favourable orders directing reinstatement on condition that he would be denied backwages. As stated earlier, deprival of backwages was in the nature of a punishment. In case, the writ appeals in W.A.Nos.884 of 2015 and 116 of 2016 alone are taken up for re-hearing, it would deny the petitioner of an opportunity to submit his case with regard to the findings recorded in paragraph 27 of the judgment. 24. Since the Bank challenges the very maintainability of the applications for the reasons stated in the affidavit filed in support of the respective review applications, we consider it deem and fit to discuss the said issue in the light of the statutory provision dealing with review. 25. Order 47 Rule 1 of Code of Civil Procedure provides for review of the judgment. Rule 1 of Order 47 reads thus: "1. Application for review of judgment.- (1) Any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed, but from no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order." 26. Order 47 of CPC permits the aggrieved to file a review application on account of discovery of new and important matter or evidence which was not within his knowledge, in spite of due diligence. It also provides for review on account of some mistake or error apparent on the face of the record. The third ground permits the aggrieved to file a review 'for any other sufficient reason'. 27. There is no definition for the term "for any other sufficient reason". It also provides for review on account of some mistake or error apparent on the face of the record. The third ground permits the aggrieved to file a review 'for any other sufficient reason'. 27. There is no definition for the term "for any other sufficient reason". The Court has to consider the grounds raised by the applicant to decide as to whether those reasons would constitute "sufficient reason" for the purpose of exercising the review jurisdiction. 28. The Supreme Court in Lily Thomas v. Union of India [ 2000 (6) SCC 224 ] observed that law has to bend before justice. The Supreme Court said: "52. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also 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 a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error." 29. The Supreme Court in BCCI v. Netaji Cricket Club [ (2005) 4 SCC 741 ] indicated the scope of review jurisdiction under Order 47 Rule 1 of Code of Civil Procedure. The Supreme Court said: "89. Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. 90. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. 90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefore. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit". 30. The Supreme Court in Rajender Singh v. Lt. Governor, Andaman and Nicobar Islands [(2005) 13 SC 289 observed that the review jurisdiction is intended to correct errors to prevent miscarriage of justice. The review jurisdiction is available, in case, interest of justice so demands in appropriate cases. 31. The term "for any other sufficient reason" is not rigid. In case, the aggrieved party is in a position to point out sufficient reason warranting review, the Court should not close its gate on mere technicalities. 32. In the subject case, the Division Bench allowed two intra court appeals and dismissed the other two. The Division Bench at the instance of the Bank restored the intra court appeals in W.A.Nos.884 of 2015 and 116 of 2016. Since it was a comprehensive judgment dealing with all the aspects of the matter, the entire issue requires fresh consideration. This would also constitute a sufficient reason to exercise the review jurisdiction. We are therefore of the view that the review applications deserve to be allowed. Disposition: 33. We therefore allow the review applications in R.A.Nos.9 and 10 of 2017 and restore the intra court appeals in W.A.Nos.117 of 2016 and 885 of 2015 for disposal on merits along with W.A.Nos.884 of 2015 and 116 of 2016. 34. In the up shot, we allow the review applications without any liability to pay costs.