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2020 DIGILAW 299 (JHR)

Management of Jagannath Nagar College v. Ramesh Chandra Mishra @ Ramesh Kumar Mishra, S/o Shri Suresh Chandra Mishra

2020-02-13

RAVI RANJAN, SUJIT NARAYAN PRASAD

body2020
JUDGMENT : 1. Both the civil review petitions are to be heard together since similar issues are the subject matter, as such, both petitions have been heard together and are being disposed of by this common judgment. 2. The instant civil review petitions have been filed under the provision of Order XLVII Rule 1 of the Code of Civil Procedure against the judgment dated 05.03.2013 passed by Division Bench of this Court in L.P.A. No.279 of 2012 and L.P.A. No.278 of 2012. 3. The factual matrix which require to be referred herein before entering into the merit of the issues are as under: The respondent workmen claimed to be duly appointed in the Jagannath Nagar College, Dhurwa, Ranchi on the post of Store Keeper (Grade-III) and Laboratory Assistant (Grade-IV) respectively under the Department of Physics. One advertisement was published in the daily newspaper, namely, Ranchi Express, on 18.03.1987 inviting applications for appointment in Grade-III and IV. The concerned workmen possessing requisite qualifications to the full satisfaction of the college authorities had applied for the post of Store Keeper and Laboratory Boy. The Deputy Registrar, Ranchi University had issued a letter on 15.01.1988 to the concerned workmen to appear before the Interview Board on 29.01.1988 along with their certificates and documents for verification. The workmen had participated in the process of selection and had been offered with the offer of appointment and in consequence thereof they have been regularized in their services but they were not paid salary and hence, they have approached to this Court by filing writ petition being C.W.J.C. No.764 of 1991 (R) for release of their salary which were due since the Month of May, 1990 as also the current salary. In the writ petition, counter affidavit was filed by the college stating the ground therein that they have been stopped from discharging their duty and in that view of the matter, the writ petition was dismissed as withdrawn with some observation vide order dated 02.07.1991. In the writ petition, counter affidavit was filed by the college stating the ground therein that they have been stopped from discharging their duty and in that view of the matter, the writ petition was dismissed as withdrawn with some observation vide order dated 02.07.1991. Both the concerned workmen had requested the Principal of the College to pay their salary and reinstate them in services but no positive direction was passed and hence, a dispute was raised before the appropriate Government which ultimately has been referred for its adjudication in exercise of power conferred under Section 10(d) of the Industrial Disputes Act by making reference as to whether the termination of services of Shri Krishna Rai Laboratory Boy and Shri Ramesh Chandra Mishra Store Keeper Jagarnath College, Dhurwa is proper? If not whether they should be reinstated on work and should be given compensation? 4. The Labour Court has decided the aforesaid reference case being Reference Case No.15 of 1993 by passing an award of no reinstatement and holding the workmen entitled for their wages along with compensation vide award dated 20.07.1998. The aforesaid award was challenged by the Management under Article 226 of the Constitution of India before this Court being C.W.J.C. No.1584 of 1999 (R) which was dismissed vide order dated 05.07.1999. Another writ petition has also been preferred by the workmen challenging the award being C.W.J.C. No.1258 of 1999 (R) which was disposed of vide order dated 01.11.2002 holding the writ petitioner only entitled to relief as has been awarded in the award. The workmen has filed review against the order dated 01.11.2002 passed in C.W.J.C. No.1258 of 1999 (R) being Civil Review No.102 of 2002 which was allowed vide order dated 04.01.2011 by setting aside the order dated 01.11.2002 passed in C.W.J.C. No.1258 of 1999 (R) and in the result the C.W.J.C. No.1258 of 1999 (R) has been directed to be heard afresh alongwith C.W.J.C. No.457 of 2000 (R). 5. The C.W.J.C. No.1258 of 1999 has been heard afresh and was disposed of vide order dated 14.05.2012 whereby and whereunder the writ petitions were allowed with a direction upon the Management to reinstate the writ petitioners in service with payment of wages. 5. The C.W.J.C. No.1258 of 1999 has been heard afresh and was disposed of vide order dated 14.05.2012 whereby and whereunder the writ petitions were allowed with a direction upon the Management to reinstate the writ petitioners in service with payment of wages. The management preferred intra-court appeals against the order dated 14.05.2012 passed in C.W.J.C. No.1258 of 1999 (R) being L.P.A. Nos.279 of 2012 & 278 of 2012 wherein the Division Bench of this Court has also agreed with the view and direction of the learned Single Judge passed in C.W.J.C. No.1258 of 1999 (R) and C.W.J.C. No.457 of 2000 (R) holding the action of the Management unjust and illegal in denying reinstatement to the petitioners and came to finding that the learned Single Judge while passing such direction for reinstatement has committed no error but so far as the back wages are concerned, it has been decided by setting aside the retrenchment compensation holding therein that the petitioners are entitled to back wages from the date of award in the light of the decision of the Hon’ble Supreme Court delivered in the case of Devinder Singh vs. Municipal Council, Sanaur, AIR 2011 SC 2532 against which Special Leave to Appeal has been preferred being Special Leave to Appeal (Civil) No.26885 of 2013 which was withdrawn vide order dated 24.01.2014. 6. The present review petitions are against the order of Division Bench of this Court passed in L.P.A. Nos.279 of 2012 & 278 of 2012, inter alia on the ground that the issue pertaining to the services of the workmen has already been decided in writ petition being W.P.(C) No.409 of 1991 disposed of on 25.09.1991 but this aspect of the matter has not been considered neither by the learned Single Judge nor by the Division Bench and hence, the judgment passed by the Division Bench in L.P.A. Nos.279 of 2012 & 278 of 2012 is fit to be reviewed. 7. Learned counsel for the workmen has opposed the submissions and ground of review. 7. Learned counsel for the workmen has opposed the submissions and ground of review. It has been submitted by learned counsel that the scope of review is very limited which cannot be exercised in the garb of appeal that too when the order passed by the Division Bench although has been assailed before the Hon’ble Supreme Court but the same has been allowed to be withdrawn vide order dated 24.01.2014 but prior to the said order, the Hon’ble Supreme Court vide order dated 19.08.2013 had already declined to interfere so far as reinstatement is concerned by rejecting the S.L.P. to that extent. However, notices were issued confining to the question as to why back wages for the entire period be granted to the respondents. But subsequently the S.L.P. has been withdrawn vide order dated 24.01.2014 and hence, once the issue of reinstatement has been agitated up to the level of Hon’ble Supreme Court and so far as the claim pertaining to back wages is concerned, the S.L.P. has been withdrawn that too without any liberty, therefore, there is no question of review of the order passed by Division Bench of this Court in L.P.A. Nos.279 of 2012 & 278 of 2012. 8. We have heard the learned counsel for the parties at length and on appreciation of their rival submissions as referred hereinabove, have found the admitted facts to the extent that the award has been passed in Reference Case No.15 of 1993 denying reinstatement but however, the retrenchment compensation has been awarded to be paid in pursuance to the provision of Section 25(F) of the Industrial Disputes Act, 1947. The aforesaid award has been assailed both by the Management and the workmen. The writ petition preferred by the Management was been dismissed however, the writ petition preferred by the workmen was dismissed so far as it relates to denying the claim of reinstatement but approved the award so far as it relates to retrenchment compensation. 9. The workmen thereafter preferred civil review of the order passed by this Court in C.W.J.C. No.1258 of 1999 (R) being Civil Review No.102 of 2002 and by virtue of order dated 04.01.2011 the order passed on 01.11.2002 in C.W.J.C. No.1258 of 1999 (R) has been set aside with a direction to hear the writ petition being C.W.J.C. No.1258 of 1999 (R) afresh alongwith C.W.J.C. No.457 of 2000 (R). 10. 10. The said writ petitions had been heard afresh wherein direction for reinstatement along with back wages has been passed. The Management preferred L.P.A. No.279 of 2012 and 278 of 2012. The Division Bench of this Court has upheld the judgment passed by the learned Single Judge to the extent of reinstatement with a further direction for modifying the order about retrenchment compensation by holding the workmen entitled to back wages. The aforesaid orders have been assailed before the Hon’ble Supreme Court in Special Leave to Appeal (Civil) No.26885 of 2013 wherein vide order dated 19.08.2019, the Hon’ble Supreme Court has been pleased to decline to interfere with the order of reinstatement, however, notices on the point of back wages were issued, for ready reference, the order dated 19.08.2013 passed by Hon’ble Supreme Court is referred hereunder, which reads as: “Delay condoned. The special leave petitions insofar as reinstatement is concerned, stands rejected. However, notice be issued confined to the question as to why back-wages for the entire period be granted to the respondents. The notice be issued only after the counsel for the petitioner furnishes a proof in the Registry that the respondents have been reinstated.” 11. Finally the SLP has been withdrawn so far as the issue of back wages is concerned vide order dated 24.01.2014, which reads hereunder as: “Mr. Rajeev Singh, counsel for the petitioners sought permission to withdraw these special leave petitions. In view of the request made, the special leave petitions are dismissed as withdrawn.” 12. Thus, it is evident that the order passed by the Division Bench with respect to reinstatement and back wages have been assailed before the Hon’ble Supreme Court and the issue of reinstatement has been declined to be interfered with by the Hon’ble Supreme Court, further, so far as question of back wages is concerned, the SLP has been withdrawn and that too without any liberty to file review before this Court, meaning thereby, it is simplicitor withdrawal. Now under these circumstances, can this review be entertained that too under the provision of Order XLVII Rule 1 of the Code of Civil Procedure? 13. It requires to refer herein that the instant review petitions are barred on the ground of limitation, however, the delay condonation applications have been filed. The grounds have been mentioned therein. 14. Now under these circumstances, can this review be entertained that too under the provision of Order XLVII Rule 1 of the Code of Civil Procedure? 13. It requires to refer herein that the instant review petitions are barred on the ground of limitation, however, the delay condonation applications have been filed. The grounds have been mentioned therein. 14. At this juncture, it requires to refer the principle governing the field and power and scope of review. It is not in dispute that the power of review is the creation of a statute. 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. The Hon’ble Apex Court has considered the width and scope of the power of review as has been rendered in the case of Moran Mar Basselios Catholicos and Anr. Vrs. Most Rev. Mar Poulose Athanasius and Ors., AIR 1954 SC 526 particularly at paragraph-32 which read as hereunder:- “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 emphasis 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 XL VII, 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. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order XL VII, 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 Vrs. State of Punjab, 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 Anr. Vrs. Sheik Habib, 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 Anr. Vrs. Sheik Habib, 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 hereinabove that 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. This Court is to see the present context “as to whether the review petitioner has been able to make out a case for review of the order passed by this Court.” 15. So far as the fact in hand is concerned, the sole ground taken for review is an order passed by Hon’ble Supreme Court in W.P.(C) No.409 of 1991. The question herein and the fact which is in admission that the order passed by Hon’ble Supreme Court in W.P.(C) No.409 of 1991 was very much available before the Court of law, even then, the adjudication has been made about reinstatement. The issue of reinstatement has been declined to be interfered with by the Hon’ble Supreme Court while on the point of back wages, SLP has been withdrawn. 16. On the basis of this factual aspect, we are not in hesitation to hold that whatever finding has been arrived at by the Division Bench of this Court in L.P.A. Nos.279 of 2012 & 278 of 2012 has attained finality. 17. 16. On the basis of this factual aspect, we are not in hesitation to hold that whatever finding has been arrived at by the Division Bench of this Court in L.P.A. Nos.279 of 2012 & 278 of 2012 has attained finality. 17. As has been laid down by Hon’ble Supreme Court so far as the power and scope of review is concerned, the review cannot be entertained in the guise of the appeal and as would be evident from the provision of Order XLVII Rule 1 of the Code of Civil Procedure, review can only be entertained 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 . Further, the review can be entertained in case of discovery of new and important matter or evident 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 regulation, the facts of these review needs to be appreciated but we on the basis of the factual aspect and more particularly, the order having attained its finality by the Hon’ble Supreme Court with respect to reinstatement and further on the point of back wages, SLP has been withdrawn that too without any leave to file review, hence, this Court is of the view that no such ground for review has been made out. 18. The review petitions are also barred by limitation but we are not satisfied with the grounds for condoning the delay. 19. We, therefore, are of the view that the instant review petitions deserve to be dismissed both on the ground of limitation and merit. 20. In the result, both the review petitions and delay condonation applications fail and are dismissed. 21. Pending interlocutory application(s), if any, also stands dismissed.