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2018 DIGILAW 617 (ORI)

Central Electricity Supply Company of Orissa Ltd. v. Pramod Kumar Swain

2018-06-26

B.R.SARANGI, VINEET SARAN

body2018
JUDGMENT Dr. B.R. SARANGI, J. - The review petitioners, who were the opposite parties in the writ petition, have filed this application seeking review of order dated 21.09.2005 passed by a Division Bench of this Court in OJC No. 5652 of 1998, on the ground that the judgment, basing upon which the writ Court directed for consideration of the case of the opposite party herein for compassionate appointment, having been modified by the Full Bench, the opposite party is not entitled to get any benefit. 2. The factual matrix of the case, in hand, is that the opposite party herein, as the petitioner, filed OJC No. 5652 of 1998 seeking employment under the Rehabilitation Assistance Scheme on account of death of his father, who died on 06.04.1997 while working as a Helper under GRIDCO (Grid Corporation of Odisha). The writ Court by order dated 21.09.2005, relying upon a judgment of this Court in Prakash Kumar Debata v. the Executive Engineer (Gridco) and others, 87 (1999) CLT 573, disposed of the said writ petition directing the review petitioners to consider the case of the opposite party for compassionate appointment according to his qualification and fulfillment of other criteria within a stipulated period. 3. Mr. B.K. Pattnaik, learned counsel appearing for the petitioners contended that in the case of Prakash Kumar Debata mentioned supra this Court was pleased to make applicable the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 to the GRIDCO on the basis of Rule 11 of the said Rules. Consequentially, even though the GRIDCO Rehabilitation Assistance Rules have been repealed, but by application of Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 the employees of GRIDCO are being extended the benefit of compassionate appoint. But subsequently, by order dated 09.05.2002 passed in OJC No. 2520 of 2002 (Sunita Puhan v. CMD, CESCO) this Court expressed a doubt with regard to correctness of the decision in the case of Prakash Kumar Debata (supra) and stated that the decision requires re-consideration and accordingly, referred the matter to the Full Bench. But subsequently, by order dated 09.05.2002 passed in OJC No. 2520 of 2002 (Sunita Puhan v. CMD, CESCO) this Court expressed a doubt with regard to correctness of the decision in the case of Prakash Kumar Debata (supra) and stated that the decision requires re-consideration and accordingly, referred the matter to the Full Bench. It is contended that the Full Bench of this Court held that the case of Prakash Kumar Debta is not applicable to the employees of CESCO and therefore, the order dated 21.09.2005 passed by this Court be reviewed and at best if the writ petitioner so likes may get the benefit of the Rules framed by the GRIDCO applicable to CESCO for grant of financial benefit as compensation and not compassionate appointment. 4. After hearing learned counsel for the parties and going through the records, a preliminary query was made by this Court as to whether the review application has been filed after disposal of the Full Bench judgment, learned counsel appearing for the petitioners contended that the review application has been filed after disposal of the case of Prakash Kumar Debta by the Full Bench. By the time the instant writ petition was disposed of on 21.09.2005, the Full Bench judgment in the case of Prakash Kumar Debta had not seen the light of the day. 5. This being the factual matrix of the case, in hand, it is at the outset necessary to go through the scope of the review application. In this context, it is relevant to refer to Section 114 read with Order-XLVII, Rule-1 of the C.P.C. “114.Review.- Subject as aforesaid, any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed by this Code’ or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit ORDER XLVII 1. Application for review of judgment. 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 judgement to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgement notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.” 6. The apex Court in Gulab Ajwani v. Smt.Saraswati Bai, AIR 1978 SC 326 and Kalabharati Advertising v. Hemant Vimalnath Narichania, 2010(II) CLR (SC) 737 has clearly laid down that ‘review’ means a judicial re-examination of the case in certain specified and prescribed circumstances. The power of review is not inherent in a Court or Tribunal. It is a creature of the statute. A Court or Tribunal cannot review its own decision unless it is permitted to do so by statute. The Courts having general jurisdiction have no inherent power under Section 151, CPC to review its own order. The Explanation to Section 141, CPC clearly lays down that the expression “proceedings” includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution. Therefore, the provisions contained in Section 114 read with Order 47, Rule 1, CPC ipso facto may not apply to a proceeding under Article 226 of the Constitution, but its principle will apply. 7. Therefore, the provisions contained in Section 114 read with Order 47, Rule 1, CPC ipso facto may not apply to a proceeding under Article 226 of the Constitution, but its principle will apply. 7. In Chhajju Ram v. Neki., AIR 1922 PC 112 , it was held by the Privy Council that analogy must be discovered between two grounds specified therein namely; (i) discovery of a new and important matter or evidence; and (ii) error apparent on the face of record, before entertaining the review on any other sufficient ground. 8. In Rajendra Kumar v. Rambhai, AIR 2003 SC 2095 : 2003 AIR SCW 92 : 2002 (3) ACJ 1822; Green View Tea and Industries v. Collector, Golaghat, Assam, (2004) 4 SCC 122 : AIR 2004 SC 1738 : 2004 AIR SCW 1347; and Des Raj v. Union of India, (2004) 7 SCC 753 : 2004 AIR SCW 5617 : AIR 2004 SC 5003 , the apex Court held that the first and foremost requirement of entertaining a review application is that the order, review of which is sought (a) suffers from any error apparent on the face of the record, and (b) permitting the order to stand will lead to failure to justice. 9. The scope of review has been elaborately considered by the apex Court in Shivdeo Singh and others v. State of Punjab, AIR 1963 SC 1909 , Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047 and S.Nagaraj v. State of Karnataka, 1993 Supp.(4) SCC 595. 10. Therefore, the scope of review being very limited in nature, if the principle, which is applicable to mean (1) if the judgment is vitiated by an error apparent on the face of the record in the sense that it is evident on a mere looking at the record without any long-drawn process of reasoning, a review application is maintainable; (2) if there is a serious irregularity in the proceeding, such as violation of the principles of natural justice, a review application can be entertained and (3) if a mistake is committed by an erroneous assumption of a fact which if allowed to stand, cause miscarriage of justice, then also an application for review can be entertained. 11. 11. In Delhi Administration v. Gurdip Singh Uban., AIR 2000 SC 3737 , the Hon’ble apex Court deprecated the practice of filing review application observing that review, by no means, is an appeal in disguise and it cannot be entertained even if application has been filed for clarification, modification or review of the judgment and order finally passed for the reason that a party cannot be permitted to circumvent or bypass the procedure prescribed for hearing a review application. 12. In Subhash v. State of Maharashtra & Anr., AIR 2002 SC 2573, the apex Court emphasized that Court should not be misguided and should not lightly entertain the review application unless there are circumstances fallen within the prescribed limits that the Courts and Tribunal should not proceed to re-examine the matter as if it was an original application before it for the reason that it cannot be a scope of review. 13. In M/s. Jain Studios Ltd. V. Shin Satellite Public Co. Ltd., AIR 2006 SC 2686 , held that the power of review cannot be confused with appellate powers which enable a superior Court to correct all errors committed by a subordinate Court. It is not rehearing an original matter. A review of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection only in exceptional cases. 14. In Zahira Habibullah Sheikh v. State of Gujarat, (2004) 5 SCC 353 : AIR 2004 SC 3467 : 2004 AIR SCW 3318, the apex Court referred to its earlier judgments in P.N. Eswara Iyer v. Registrar Supreme Court of India, (1980) 4 SCC 680 ; Suthendraraja alias Suthenthira Raja v. State, (1999) 9 SCC 323 : AIR 1999 SC 3700 : 1999 AIR SCW 3734; Ramdeo Chauhan v. State of Assam, (2001) 5 SCC 714 : AIR 2001 SC 2231 : 2001 AIR SCW 2159; and Devender Pal Singh v. State of NCT of Delhi, (2002) 5 SCC 234 : AIR 2002 SC 1661 : 2002 AIR SCW 1586; and observed that review applications “are not to be filed for the pleasure of the parties or even as a device for ventilating remorselessness, but ought to be restored to with a great sense of responsibility as well. 15. 15. In the garb of review, a party cannot be permitted to reopen the case and to gain a full-fledged innings for making submissions, nor review lies merely on the ground that may be possible for the Court to take a view contrary to what had been taken earlier. If a case has been decided after full consideration of the arguments made by a counsel, he cannot be permitted even in the garb of doing justice or substantial justice to engage the Court again to decide the controversy already decided. If a party is aggrieved by a judgment, it must approach the higher Court but entertaining a review to reconsider the case would amount to exceeding its jurisdiction conferred under the limited jurisdiction for the purpose of review. 16. Considering the scope of review and applying the same to the present context, it appears that the petitioners have filed this review application after the changed law laid down by the Full Bench of this Court, where this Court held that the case of Prakash Kumar Debta case was not applicable so far as employees of GRIDCO are concerned. Needless to say that by the time the order was passed, i.e., on 21.09.2005, the judgment in the case of Prakash Kumar Debta rendered by the Full Bench had not seen the light of the day. Rather, the Division Bench of this Court in Prakash Kumar Debta case stated that the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 is applicable to the GRIDCO as per Rule 11 of the said Rules the same was in force. If that be so, the petitioners should have taken into consideration the case of the opposite party in the light of the said judgment. Subsequent judgment of the Full Bench has no application to the present context and that by itself cannot be a ground to review the order dated 21.09.2005 passed by the writ Court. Even otherwise, the order impugned does not come within the scope and ambit of review, as applicable to the present case. 17. In the above view of the matter, we do not find any merit in the review petition, which is accordingly dismissed. No order as to cost. Petition dismissed.