Asim Kumar Pandey v. State of Jharkhand through the Secretary, Water Resources Development Department, Govt. of Jharkhand, Ranchi
2018-01-05
PRAMATH PATNAIK
body2018
DigiLaw.ai
JUDGMENT : Pramath Patnaik, J. The present review application has been preferred for modification/review of the order dated 29.1.2009 passed in W.P.(S) No. 293 of 2009 whereby this Court has been pleased to dismiss the aforesaid writ application, in view of the order passed in L.P.A. No. 675 of 2000 and the order of the Hon'ble Apex Court, confirming the order of the Division Bench, whereby the order of termination of the petitioner and other similarly situated persons and recovery of salary were interfered with. 2. Before adverting to the merit of the writ application, it would be pertinent to state the facts briefly : The petitioner was appointed as a Chairman on 25.5.1987 and he was terminated from services on the ground of illegal appointment on 22.2.1997. Against the order of termination, the petitioner and other similarly situated persons filed C.W.J.C. No. 3345 of 1997 which was allowed and the order of termination was set aside. Even after order of setting aside since the petitioner was not allowed to join, he preferred W.P.(S) No. 1897 of 2002 in acceptance of his joining and thereafter on 14.9.2002 the joining of the petitioner was accepted. Against the order passed in C.W.J.C. No. 3345 of 1997 the State preferred appeal vide L.P.A. No. 675 of 2000 and the said appeal was allowed on 29.1.2003 and against the order passed by the Division Bench, the petitioners moved before the Hon'ble Supreme Court and the Hon'ble Supreme Court granted of status quo vide order dated 13.10.2003 in S.L.P (Civil) Nos. 7233-7235 of 2003 and during that period the petitioners were working as per the direction. Finally, the special leave petition was dismissed on 11.7.2006. Thereafter interlocutory application seeking clarification was filed which was also dismissed on 24.11.2006. After the order passed by the Hon'ble Supreme Court, the petitioner made representation to the Secretary, Water Resources Department giving details about the appointment. The respondent No. 2 vide order dated 11.7.2006 terminated the services of the petitioner and other similar persons in the light of judgment and order passed in L.P.A. No. 675 of 2000 which was allowed on 29.1.2003. Being aggrieved by the aforesaid order of termination, the petitioner preferred present writ application being W.P.(S) No. 293 of 2009 which has been dismissed vide order dated 29.1.2009 and the order of which is under challenge in the present review application. 3.
Being aggrieved by the aforesaid order of termination, the petitioner preferred present writ application being W.P.(S) No. 293 of 2009 which has been dismissed vide order dated 29.1.2009 and the order of which is under challenge in the present review application. 3. Learned counsel for the petitioner has strenuously urged that the Hon'ble Court has not given specific finding in respect of the order passed by the Hon'ble Apex Court, in view of para 53 of the Uma Devi's case reported in (2006) 4 SCC 1 , nor any finding has been given for regularization of the petitioner having putting more than 10 years of services. Learned counsel for the petitioner further submits that the Hon'ble Court ought to have considered the facts of case in which the termination order has been set aside has been affirmed up to the Hon'ble Supreme Court on similar issue and therefore, the petitioner was entitled to be extended the benefit on the doctrine of parity. 4. Challenging the review application filed by the petitioner, counter-affidavit has been filed by the respondents wherein it has been submitted that vide letter No. 269 dated 18.7.2007 the respondent issued letter to petitioner for recovery of the salary from 29.1.2003 in compliance of judgment passed by Hon'ble Supreme Court but the petitioner neither replied the said letter nor deposited the salary amount from 29.1.2003 as per Annexure-A to the counter-affidavit. 5. Mr. A.K. Agrawal, J.C. to S.C-V for the State submits that there is absolutely no ground for entertaining the review application, since the scope of exercising the power for entertaining the review application is very limited. 6. Having heard learned counsel for the parties and looking to the facts and circumstances of the case, I find no reason for entertaining the civil review mainly for the following facts and reasons : (I) Admittedly against the order of termination dated 11.7.2006 and recovery from salary, present writ petition was preferred by the petitioner and this Court, in view of the earlier order passed in L.P.A. No. 675 of 2000 and S.L.P (Civil) Nos. 7233-7235 of 2003, passed the order of termination of petitioner and other similar person were confirmed by the Hon’ble Apex Court.
7233-7235 of 2003, passed the order of termination of petitioner and other similar person were confirmed by the Hon’ble Apex Court. Since the order has attained its finality, rightly the Court was not inclined to interfere with the writ petition and, accordingly, writ petition has been dismissed and hence there is absolutely no infirmity and illegality in the order passed by this Court. (II) Moreover, civil review application is not an appeal in disguise. Like an appeal against the decision of the writ petition, this civil review application has been argued out at length, hence civil review application deserves to be dismissed in limine. (III) Much has been argued in the civil review application about the parity in different decisions as per Annexures-9 and 10 series, but none of these arguments is accepted by this Court mainly for the reason that the matter cannot be reopened in this civil review application. (IV) It has been held by Hon’ble the Supreme Court in the case of Aribam Tuleshwar Sharma v. Aibam Pishak Sharma, as reported in (1979) 4 SCC 389 , at paragraph 3 as under : "3. ....... It is true as observed by this Court in Shivdeo Singh v. State of Punjab there is nothing in Article 226 of the Constitution to preclude a 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. The power of review way 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.
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 powers which may enable an appellate Court to correct all manner of errors committed by the subordinate Court." (Emphasis supplied) (v) It has also been held by Hon'ble the Supreme Court in the case of Meera Bhanja v. Nirmala Kumari Choudhary, as reported in (1995) 1 SCC 170 , at paragraph Nos. 8, 9 and 15 as under : "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 XLVII, Rule 1, CPC. In connection with the limitation of the powers of the Court under Order XLVII, 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, speaking through Chinnappa Reddy, J, has made the following pertinent observations: (SCC p. 390, para 3) "It is true as observed by this Court in Shivdeo Singh v. State of Punjab, 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. 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.
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." 9. 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 face 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 face 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 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 powers of the superior Court to issue such a writ. 15. 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 XLVII, Rule 1, CPC 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 re-appreciated the entire evidence, sat almost as Court of appeal and has reversed the findings reached by the earlier Division Bench.
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 re-appreciated the entire evidence, sat almost as Court of appeal and has reversed the findings reached by the earlier Division Bench. Even if the earlier Division Bench's 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 XLVII, Rule 1, CPC. 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 8.7.1986 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 5.9.1984 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 3.8.1978 allowing the second appeal regarding suit Plot No. 74 is restored. The appeal is accordingly allowed. In the facts and circumstances of the case, there will be no order as to costs. (Emphasis supplied) (vi) It has further been held by Hon'ble the Supreme Court in the case of Parsion Devi v. Sumitri Devi, as reported in (1997) 8 SCC 715 , at paragraph Nos. 7, 8 and 9 as under : "7. It is well-settled that review proceedings have to be strictly confined to the ambit and scope of Order XLVII, Rule 1, CPC. In Thungabhadra Industries Ltd. v. Government of A.P. (SCR at p. 186) this Court opined : “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’).
In Thungabhadra Industries Ltd. v. Government of A.P. (SCR at p. 186) this Court opined : “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 characterised 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. Again, in Meera Bhanja v. Nirmala Kumari Choudhury while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharmathis Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1, CPC. 9. Under Order XLVII, 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 XLVII, Rule 1, CPC. In exercise of the jurisdiction under Order XLVII, 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"." (Emphasis supplied) (vii) The Hon'ble Apex Court also has dealt with the scope of review in the case of Haridas Das v. Usha Rani Banik, as reported in 2006 (3) JCR 31 (SC) : (2006) 4 SCC 78 , at paragraph Nos. 13 to 18 as under : "13.
13 to 18 as under : "13. In order to appreciate the scope of a review, Section 114, CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the Court since it merely, states that it "may make such order thereon as it thinks fit". The parameters are prescribed in Order XLVII, CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order XLVII which states that the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection. This Court in Thungabhadra Industries Ltd. v. Government of A.P. held as follows : (SCR p. 186) "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 characterised 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. ... where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error-apparent on the face of the record would be made out." 14.
... where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error-apparent on the face of the record would be made out." 14. In Meera Bhanja v. Nirmala Kumari Choudhury it was held that : "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 XLVII, Rule 1, CPC. In connection with the limitation of the powers of the Court under Order XLVII, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution, this Court, in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma speaking through Chinnappa Reddy, J. has made the following pertinent observations : ‘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. 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.” (SCC pp. 172-73. para 8) 15.
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.” (SCC pp. 172-73. para 8) 15. A perusal of Order XLVII, Rule 1 shows that review of a judgment or an order could be sought : (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of the record or any other sufficient reason. 16. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma this Court held that there are definite limits to the exercise of power of review. In that case, an application under Order XLVII, Rule 1 read with Section 151 of the Code was filed which was allowed and the order passed by the Judicial Commissioner was set aside and the writ petition was dismissed. On an appeal to this Court it was held as under : (SCC p. 390, para 3) "It is true as observed by this Court in Shivdeo Singh v. State of Punjab there is nothing in Article 226 of the Constitution to preclude a 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. 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.
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 powers which may enable an appellate Court to correct all manner of errors committed by the subordinate Court." 17. The judgment in Aribam case has been followed in Meera Bhanja. In that case it has been reiterated that an error apparent on the face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any long-drawn process of reasoning. The following observations in connection with an error apparent on the face of the record in Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale were also noted : (AIR p. 137) "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 powers of the superior Court to issue such a writ." (SCR pp. 901-02) 18. It is also pertinent to mention the observations of this Court in Parsion Devi v. Sumitri Devi. Relying upon the judgments in Aribam and Meera Bhanja it was observed as under : (SCC p. 719. para 9) “9. Under Order XLVII, 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 XLVII, Rule 1, CPC. In exercise of the jurisdiction under Order XLVII, 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’.” 7.
In exercise of the jurisdiction under Order XLVII, 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’.” 7. In view of the facts stated in the foregoing paragraphs coupled with the dictum of the Hon'ble Apex Court (supra), there is no substance in the civil review application and, hence, the same is hereby dismissed. Review application dismissed.