Managing Director, Indian Immunological Ltd. v. Narendra Agrawal
2021-05-05
B.VIJAYSEN REDDY, HIMA KOHLI
body2021
DigiLaw.ai
JUDGMENT : B. Vijaysen Reddy, J. IA No. 1 of 2021: 1. This application has been filed by the appellants seeking review of the judgment dated 4.1.2021, passed in WA No. 143 of 2017, arising from an order dated 24.11.2016 passed by the learned Single Judge in WP No. 4159 of 2015. 2. Vide judgment dated 4.1.2021, the appeal preferred by the appellants (respondents in the writ petition) has been dismissed, and the judgment of the learned Single Judge has been upheld. 3. Though several pleas have been taken in the review application, Mr. C.R. Sridharan, learned Senior Counsel has confined his arguments to the following grounds: (a) This Court, having noted down several decisions relied upon by the review petitioner in Paras 12 and 13 of the impugned judgment, did not consider the ratio laid down in the said decisions in the correct perspective inasmuch as the judgment in Praga Tools Corporation v. C.A. Imanual, (1969) 1 SCC 585 , was disregarded and the Court failed to consider that a writ of mandamus lies only to secure performance of a public duty and not performance of obligations which are of a private character. (b) There are contradictions in Para 28 of the judgment with regard to the Doctrine of lifting/piercing the corporate veil. Having said that lifting of the corporate veil has a limited application in matters relating to tax frauds, the Court has returned a finding that such a doctrine has been applied even in disputes relating to workman/employee in several reported decisions of the Supreme Court as discussed in Para 28 of the impugned judgment and a contrary finding has been given that there is "clear admission by respondent No. 2 that it is a public sector undertaking" and it has further been held that the doctrine of lifting the corporate veil is not of much relevance in the instant case. (c) While noting down the contentions raised on behalf of the review petitioner in Para 8 of the judgment, the Court has erred in observing that "the factors mentioned in K.K. Saksena v. International Commission on Irrigation and Drainage, (2015) 4 SCC 670 , are inapplicable to the facts of the present case". Infact, it is the stand of the review petitioner that the factors mentioned in the said case are applicable to the present case.
Infact, it is the stand of the review petitioner that the factors mentioned in the said case are applicable to the present case. (d) The judgment in Ramakrishna Mission v. Kago Kunya, has been disregarded without returning any detailed findings. (e) The issues framed in Para 10 of the judgment do not cover the main issue i.e., whether a writ of mandamus would lie in the facts and circumstances of the case. 4. In support of his submission that the review application as filed, is maintainable, learned Senior Advocate has relied on the judgment of the Supreme Court in Board of Control for Cricket, India v. Netaji Cricket Club, AIR 2005 SC 592 : (2005) 4 SCC 741 , specifically drawing attention of this Court to Paras 89 to 92 of thereof. 5. Per contra, Mr. Narendra Agrawal, party-in-person submitted that a writ of certiorari has been prayed for by him in the writ petition for calling for the records and setting aside the impugned termination order, which is illegal, unsustainable and unconstitutional. He has urged that the Court has properly exercised its jurisdiction, rightly affirmed the judgment of the learned Single Judge and held that his employment is not contractual in nature, but a permanent employment. 6. In his rejoinder arguments, learned Senior Advocate for the review petitioner contended that in the instant case, since issuance of a writ in the nature of certiorari has been prayed for by the respondent/writ petitioner, the Court could not have issued a writ of mandamus declaring that he is a public servant and is a permanent employee of the appellants. 7. The scope of review jurisdiction of the High Court under the provisions of the Code of Civil Procedure (CPC) and in writ petitions has come up for consideration" before the Supreme Court and several High Courts on many occasions. It is well settled that the error, if any, in the order/judgment sought to be reviewed has to be evident and not to be found out by a process of reasoning. The review petition cannot be allowed to be "an appeal in disguise" and nor can an erroneous decision be "reheard and re-correct" (Refer: Thungabhadra Industries Ltd. v. Govt.
It is well settled that the error, if any, in the order/judgment sought to be reviewed has to be evident and not to be found out by a process of reasoning. The review petition cannot be allowed to be "an appeal in disguise" and nor can an erroneous decision be "reheard and re-correct" (Refer: Thungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 SC 1372 ; Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389 ; Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170 ; Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715 and Sasi (D) through LRs. v. Aravindakshan Nair, 2017 (3) ALD 163 (SC) : 2017 (3) SCALE 383 ). 8. We may also usefully refer to a decision in Ram Sahu v. Vinod Kumar Rawat, wherein after elaborately discussing the review jurisdiction of the High Court under Article 226 of the Constitution of India and under the provisions of Section 114 read with Order 47 Rule 1 CPC and upon reiterating its earlier decisions, the Supreme Court has observed as under: "14. 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 47 Rule 1 CPC. In connection with the limitation of the powers of the Court under Order 47 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. (supra), 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.
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 20 all manner of errors committed by the subordinate Court." 27. In the case of Lily Thomas v. Union of India, 2000 (6) ALD 16 (SC) : (2000) 6 SCC 224 , it is observed and held that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. 30. 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. In the case of Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844 , this Court has 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. 31. What can be said to be an error apparent on the face of the proceedings has been dealt with and considered by this Court in the case of T.C. Basappa v. T. Nagappa, AIR 1954 SC 440 . It is held that such an error is an error which is a patent error and not a mere wrong decision.
31. What can be said to be an error apparent on the face of the proceedings has been dealt with and considered by this Court in the case of T.C. Basappa v. T. Nagappa, AIR 1954 SC 440 . It is held that such an error is an error which is a patent error and not a mere wrong decision. In the case of Hari Vishnu Kamath v. Ahmed Ishaque, AIR 1955 SC 233 , it is observed as under: "It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned Counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated." 33. In the case of State of West Bengal v. Kamal Sengupta, (2008) 8 SCC 612 , this Court has an occasion to consider what can be said to be "mistake or error apparent on the face of record". In Paras 22 to 35 it is observed and held as under: "22. The term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the Court/Tribunal on a point of fact or law. In any case, while exercising the power of review, the Court/Tribunal concerned cannot sit in appeal over its judgment/decision. 34.
In any case, while exercising the power of review, the Court/Tribunal concerned cannot sit in appeal over its judgment/decision. 34. To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of Section 114 CPC as the same is a substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowed but no appeal is preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the Court, which may order or pass the decree. From the bare reading of Section 114 CPC, it appears that the said substantive power of review under Section 114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said section imposed any prohibition on the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47 Rule 1 CPC, which has been elaborately discussed hereinabove. An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order 47 Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review." 9. As can be seen from the above discussion, the Court in exercise of review jurisdiction, has got a limited power to correct a mistake or an error apparent on the face of the record. Such a petition can be entertained in circumstance where the Court has wrongly applied the law or committed a mistake in appreciation of the facts and issues involved in a case, which does not entail a detailed examination of the facts or the legal position. In the guise of arguing a review application, a party cannot be permitted to enter upon the merits of the case and address arguments on the manner in which the judgment relied upon by it, have been interpreted by the Court.
In the guise of arguing a review application, a party cannot be permitted to enter upon the merits of the case and address arguments on the manner in which the judgment relied upon by it, have been interpreted by the Court. A review Court is only required to examine if there is any patent error apparent on the face of the record that would need correction. 10. Now, coming back to the case in hand, the contention of the learned Senior Counsel as recorded in ground (c) above, is found to be devoid of merits. The word 'inapplicable' is quite apparently a typographical error; instead of 'applicable', the word 'inapplicable' has been erroneously typed. The same can clearly be discerned from the following two sentences that find mention in Para 8(h) of the judgment, wherein the contention of the learned Senior Counsel has been recorded that "the respondent No. 2 is not an authority under Article 12 of the Constitution of India. Even if there is deep and pervasive control either financial or administrative by NDDB over the respondent No. 2 even the respondent No. 2 cannot be considered as an instrumentality of the State". 11. The submission made by learned Senior Counsel that an additional issue ought to have been framed by the Court, as recorded in ground 'e' above and that a declaration in the nature of a writ of mandamus should not have been issued in a writ petition where the respondent No. 1 was only seeking issuance of a writ of certiorari, is also liable to be rejected. It is settled law that in exercise of writ jurisdiction, the Court is vested with wide discretionary powers. Framing of issues is only for the sake of the convenience of the Court and not for a party to pinpoint and state as to which other issues ought to have been framed. Furthermore, the High Court in exercise of powers vested under Article 226 of the Constitution of India, has the discretion to mould the relief for doing substantial justice between the parties. In any event, such a plea cannot be taken in a review petition. If the appellants have a grievance in this regard, it is for them to seek appropriate legal recourse. 12.
In any event, such a plea cannot be taken in a review petition. If the appellants have a grievance in this regard, it is for them to seek appropriate legal recourse. 12. The Court is also of the opinion that the other grounds urged by learned Senior Counsel for seeking review of the judgment dated 4.1.2021, are beyond the scope of review jurisdiction. He has not been able to point out any ground within the legal parameters for reviewing the judgment, as have been spelt out in Paras 89 to 92 of the judgment in Board of Control for Cricket, India's case (supra), on which he seeks to place reliance. 13. All the relevant decisions cited by the learned Senior Counsel have been dealt with including Praga Tools Corporation's case (supra), K.K. Saksena's case (supra) and Ramakrishna Mission's case (supra) and the ratio laid down in the said rulings have been discussed. Findings have been returned in Paras 14 to 28 of the judgment holding that the appellant/respondent No. 2 is a 'State' within the meaning of Article 12 of the Constitution of India and is also discharging a public duty and thus, amenable to writ jurisdiction. These are findings of facts recorded by this Court based on the documents relied upon by the parties, the settled legal propositions and the case laws cited before the Court. 14. Under the guise of a review application, the appellants are seeking a re-hearing of the appeal that has been dismissed on merits, which is impermissible. In the light of above discussion it cannot be urged that there is any patent error apparent on the face of the record or that the judgment passed, is based on a misconception or there is a mistake committed by the Court in appreciation of the facts or the law. If the appellants are aggrieved by the said decision, they are well entitled to seek appropriate legal recourse. However, the grounds urged before this Court do not entitle them to a review. 15. In view of the observations made above, the review application is found to be misconceived and devoid of merits and is accordingly dismissed with the pending application, with costs quantified at Rs. 10,000/- (Rupees Ten thousand only), payable to the respondent/party-in-person within a period of one week from today.