Premaraj. M. A, S/o Late K. v. R Nair VS Union Of India
2024-03-25
ANIL K.NARENDRAN, BASANT BALAJI
body2024
DigiLaw.ai
ORDER : Anil K. Narendran, J. This review petition is one filed under Order XLVII Rule 1 of the Code of Civil Procedure, 1908, seeking a review of the judgment of a Division Bench of this Court dated 23.03.2023 in W.A.No.545 of 2023, in which one among us [Basant Balaji, J.] was a party. That Writ Appeal arises out of a common judgment dated 27.09.2022 of the learned Single Judge in W.P.(C)No.2607 of 2022 and connected matters, i.e., W.P.(C)Nos.561 of 2019, 944 of 2019, 10407 of 2019, 23172 of 2021, 24753 of 2021, 28865 of 2021 and 6437 of 2022. Those writ petitions were filed seeking a declaration that the petitioners, who are retired employees of the Kerala Financial Corporation, which is a non-banking institution incorporated under Section 3 of the State Financial Corporations Act, 1951, are entitled to get a statutory pension at par with State Government Servants. The petitioners have also sought for other consequential reliefs. Those writ petitions ended in dismissal by a common judgment dated 27.09.2022 of the learned Single Judge. That judgment was sought to be reviewed by filing R.P.No.1027 of 2022, which was one filed by petitioners 1 to 3 herein. That review petition along with R.P.No.1028 of 2022 in W.P.(C)No.28865 of 2021, R.P.No.1029 of 2022 in W.P.(C)No.24753 of 2021 and R.P.No.1049 of 2022 in W.P.(C)No.10407 of 2019 ended in dismissal by a common order dated 23.01.2023. 2. The judgment of the learned Single Judge dated 27.09.2022 dismissing W.P.(C)No.2607 of 2022 and the order dated 23.01.2023 dismissing R.P.No.1027 of 2022 were under challenge before the Division Bench in W.A.No.545 of 2023 filed by the petitioners herein. That writ appeal ended in dismissal by the judgment dated 23.03.2023, holding that for reasons recorded in the judgment, the learned Single Judge rightly rejected the prayers in the writ petition. Therefore, the Division Bench confirmed the judgment of the learned Single Judge in W.P.(C)No.2607 of 2022. 3.
That writ appeal ended in dismissal by the judgment dated 23.03.2023, holding that for reasons recorded in the judgment, the learned Single Judge rightly rejected the prayers in the writ petition. Therefore, the Division Bench confirmed the judgment of the learned Single Judge in W.P.(C)No.2607 of 2022. 3. In this review petition, it is pointed out that, at the time of dismissal of W.A.No.545 of 2023 by the judgment dated 23.03.2023, W.A.No.1 of 2023 filed on 22.02.2022, W.A.No.84 of 2023 filed on 11.01.2023, W.A.No.194 of 2023 filed on 28.01.2023, W.A.No.384 of 2023 filed on 14.02.2023 and W.A.No.571 of 2023 filed on 15.02.2023 against the common judgment dated 27.09.2022 of the learned Single Judge, whereby the connected writ petitions were dismissed for the very same reason, were pending before this Court. Though W.A.Nos.1 of 2023, 84 of 2023 and 194 of 2023 were not admitted on file, W.A.Nos.384 of 2023 and 571 of 2023 were already admitted. It is also pointed out in this review petition that though the order dated 23.01.2023 of the learned Single Judge in R.P.No.1027 of 2022 in W.P.(C)No.2607 of 2022 was also under challenge in W.A.No.545 of 2023, the Division Bench omitted to consider the challenge made in the writ appeal against that order, while dismissing W.A.No.545 of 2023 by the judgment dated 23.03.2023, which is sought to be reviewed in this review petition. 4. On 12.07.2023, when this review petition came up for admission before the Division Bench which rendered the judgment dated 23.03.2023 in W.A.No.545 of 2023, the matter was adjourned to 13.07.2023. Thereafter, the Registry was directed to list this review petition before a Division Bench consisting of Basant Balaji, J. and accordingly, the matter is listed before this Bench, along with the connected writ appeals arising out of the common judgment of the learned Single Judge dated 27.09.2022. By a separate order, the writ appeals connected to W.A.No.545 of 2023 are delinked and directed to be listed before a Bench as per roster. 5. Heard the learned counsel for the petitioners, the learned Central Government Counsel for the 1st respondent Union of India, the learned Standing Counsel for Employees Provident Fund Organization for the 3rd respondent, the learned Senior Government Pleader for the 4th respondent State and also the learned Senior Counsel for respondents 5 and 6, i.e., the Kerala Financial Corporation and its Board of Directors. 6.
6. It is not in dispute that when the Division Bench dismissed W.A.No.545 of 2023 by the judgment dated 23.03.2023, which is sought to be reviewed in this review petition, W.A.Nos.1 of 2023, 84 of 2023, 194 of 2023, 384 of 2023 and 571 of 2023 filed against that common judgment were pending before this Court. Out of those writ appeals, W.A.Nos.384 of 2023 and 571 of 2023 were already admitted on file. 7. The learned Senior Counsel for respondents 5 and 6 would contend that there is nothing wrong in the Division Bench dismissing W.A.No.545 of 2023 by the judgment dated 23.03.2023, during the pendency of the connected writ appeals, challenging the common judgment dated 27.09.2022 of the learned Single Judge. The learned Senior Counsel would place reliance on the judgment of a Full Bench of the Gauhati High Court in Jagadish Deka v. State of Assan and others [ AIR 2014 Gau. 143 ] and the judgment of the Apex Court in Premier Tyres Ltd. v. Kerala State Road Transport Corporation [1993 Supp (2) SCC 146]. 8. In Jagadish Deka [ AIR 2014 Gau. 143 ], a decision relied on by the learned Senior Counsel for respondents 5 and 6, a Full Bench of the Gauhati High Court held that since W.A.Nos. 112 of 2010 and 154 of 2009 arose out of a common order passed by the writ court on 09.04.2009, both these appeals, including other appeals arising out of the common order passed by the writ court, should have been heard together on merits in accordance with law. Since all the writ petitions were decided by a common order, which suffered their dismissal, the appeals arising out of such order, too, should have resulted in the passing of a common order either way unless any individual appellant was able to point out any distinguishing feature of his case from the bunch for its separate hearing. 9. In Jagadish Deka [ AIR 2014 Gau. 143 ], the Full Bench held that once a decision was rendered by one Division Bench in one appeal arising out of common order, a fortiori, such decision was binding on another Division Bench, whether consisting of the same Judges or another, to avoid the passing of two conflicting orders in one case.
In Jagadish Deka [ AIR 2014 Gau. 143 ], the Full Bench held that once a decision was rendered by one Division Bench in one appeal arising out of common order, a fortiori, such decision was binding on another Division Bench, whether consisting of the same Judges or another, to avoid the passing of two conflicting orders in one case. If for any reason, the latter Division Bench did not agree to the view taken by the earlier Division Bench, then it had no option but to refer the matter to a larger Bench (Full Bench) to resolve the conflict after setting out the reasons for their disagreement and the area of difference. The latter Division Bench had no jurisdiction to decide the appeal on merits by taking a contrary view, except to follow the reasoning and the conclusion arrived at by the earlier Division Bench, and if they formed an opinion to take a contrary view then it was obligatory on the Division Bench to make a reference to larger Bench to resolve the conflict. The jurisdiction to take a contrary view or/and to declare the decision per incuriam was with the Full Bench, on a reference made by the latter Division Bench. Since no one brought the earlier decision to the notice of the latter Division Bench, a situation arose where a judgment came to be passed which is in conflict with the earlier Division Bench judgment. 10. In the instant case, at the time of dismissal of W.A.No.545 of 2023, by the judgment dated 23.03.2023, i.e., the judgment sought to be reviewed in this review petition, W.A.Nos.1 of 2023, 84 of 2023, 194 of 2023, 384 of 2023 and 571 of 2023 filed against the common judgment dated 27.09.2022 of the learned Single Judge, whereby the connected writ petitions were dismissed for the very same reason, were pending before this Court. Though W.A.Nos.1 of 2023, 84 of 2023 and 194 of 2023 were not admitted on file, W.A.Nos.384 of 2023 and 571 of 2023 were already admitted. In W.A.No.545 of 2023, which was dismissed on 23.03.2023, and in the connected writ appeals the Kerala Financial Corporation and its Board of Directors are represented by the very same Standing Counsel. 11.
Though W.A.Nos.1 of 2023, 84 of 2023 and 194 of 2023 were not admitted on file, W.A.Nos.384 of 2023 and 571 of 2023 were already admitted. In W.A.No.545 of 2023, which was dismissed on 23.03.2023, and in the connected writ appeals the Kerala Financial Corporation and its Board of Directors are represented by the very same Standing Counsel. 11. We also notice that, though the order dated 23.01.2023 of the learned Single Judge in R.P.No.1027 of 2022 in W.P.(C)No.2607 of 2022 was also under challenge in W.A.No.545 of 2023, in the judgment dated 23.03.2023 sought to be reviewed, the Division Bench did not consider the challenge made against that order. Since the relief sought for in this review petition is to review the judgment dated 23.03.2023 in W.A.No.545 of 2023, which is one rendered during the pendency of W.A.Nos.1 of 2023, 84 of 2023, 194 of 2023, 384 of 2023 and 571 of 2023 filed against the common judgment dated 27.09.2022 of the learned Single Judge, we find absolutely no merits in the contentions advanced by the learned Senior Counsel for respondents 4 and 5, relying on the decision of the Full Bench of Gauhati High Court in Jagadish Deka [ AIR 2014 Gau. 143 ]. 12. In Premier Tyres Ltd. v. Kerala State Road Transport Corporation [1993 Supp (2) SCC 146], another decision relied on by the learned Senior Counsel for respondents 5 and 6, a Three-Judge Bench of the Apex Court held that the finality of a finding recorded in the connected suit, due to non-filing appeal, precluded the court from proceeding with the appeal in the other suit. Relying on the said decision, the learned Senior Counsel would contend that since the common judgment dated 27.09.2022 of the learned Single Judge in two writ petitions, out of the eight writ petitions decided together, is not under challenge by filing writ appeals, W.A.No.545 of 2023 filed by the review petitioners are barred by res judicata and in such circumstances, the judgment dated 23.03.2023 sought to be reviewed in this review petition warrants no interference. 13. In Premier Tyres Ltd. [1993 Supp (2) SCC 146] the Apex Court was considering a case in which the appellant - Premier Tyres Ltd. - filed a suit for recovery of a certain amount due to it on the supplies made to the respondent - Kerala State Road Transport Corporation.
13. In Premier Tyres Ltd. [1993 Supp (2) SCC 146] the Apex Court was considering a case in which the appellant - Premier Tyres Ltd. - filed a suit for recovery of a certain amount due to it on the supplies made to the respondent - Kerala State Road Transport Corporation. Whereupon, the respondent Corporation filed a suit for recovery of the excess amount paid by it to the appellant. The claim of the appellant was that it was entitled to invoice price, whereas, according to the respondent, the Corporation was not liable to pay in excess of DGS&D contract rates. Both the suits were connected and tried together, as the nature of the dispute in both the suits was the same. Issues framed were also common. The Trial Court found that the Corporation was liable to pay for the goods supplied to it by the appellant only at DGS&D contract rates. Even on this finding, the claim of the appellant was found substantiated for a part, and consequently, the suit was decreed to that extent. The suit of the Corporation was also decreed in part, and it was directed that in respect of supplies where the payment had been made in excess of DGS&D rates, the respondent was entitled to a refund. The appellant did not file any appeal against the dismissal of the suit for the part of its claim, but an appeal was filed against the decree granted in favour of the Corporation in the suit filed by it. At the time of the hearing, the High Court dismissed the appeal of the appellant as barred by res judicata as the finding recorded in the connected suit that the appellant was entitled to charge and collect only on the DGS&D rates and not on the invoice price had become final. In that context, the Apex Court held that the finality of a finding recorded in the connected suit, due to non-filing appeal, precluded the court from proceeding with the appeal in the other suit. 14.
In that context, the Apex Court held that the finality of a finding recorded in the connected suit, due to non-filing appeal, precluded the court from proceeding with the appeal in the other suit. 14. As already noticed hereinbefore, in the case dealt with by the Apex Court, the appellant did not file any appeal against the dismissal of the suit for the part of its claim, i.e., the claim that it was entitled to invoice price, but an appeal was filed against the decree granted in favour of the Corporation in the suit filed by it, wherein it was found that the Corporation was liable to pay for the goods supplied to it by the appellant only at DGS&D contract rates. Therefore, the law laid down by the Apex Court in Premier Tyres Ltd. [1993 Supp (2) SCC 146] in no manner supports the contention of the learned Senior Counsel for respondents 5 and 6 that, the judgment dated 23.03.2023 sought to be reviewed in this review petition warrants no interference since W.A.No.545 of 2023 filed by the review petitioners are barred by res judicata, as the common judgment dated 27.09.2022 of the learned Single Judge in two writ petitions, out of the eight writ petitions decided together, is not under challenge by filing writ appeals. 15. We notice that the question raised in this review petition is no more res integra in view of the decision of a Division Bench of this Court in Radhakrishna Panicker v. State of Kerala [ 2001 (3) KLT 631 ], which was one rendered taking note of the law laid down by the Apex Court in Bir Bajrang Kumar v. State of Bihar [ AIR 1987 SC 1345 ]. 16. In Bir Bajrang Kumar [ AIR 1987 SC 1345 ], the Apex Court took the view that if there are two writ petitions involving identical points and one writ petition is admitted, there is no justification for dismissing the other writ petition. The Apex Court, therefore, set aside the order of the High Court and remanded the matter to the High Court to be heard along with the pending matter. Paragraph 2 of the said decision reads thus; “2.
The Apex Court, therefore, set aside the order of the High Court and remanded the matter to the High Court to be heard along with the pending matter. Paragraph 2 of the said decision reads thus; “2. After going through the record of the case, it appears that one of the cases involving an identical point has already been admitted by the High Court, but another identical petition was dismissed by the same High Court. This, therefore, creates a very anomalous position and there is a clear possibility of two contradictory judgments being rendered in the same case by the High Court. In these circumstances, we allow this appeal and set aside the order dismissing C.W.J.C. No. 163 of 1985. This appeal is remanded to the High Court to be heard along with C.W.J.C. No.5728 of 1984 which is pending hearing.” 17. In Radhakrishna Panicker [ 2001 (3) KLT 631 ], the Division Bench held that, in case of writ petitions involving identical issues, it is not justifiable when certain original petitions are admitted, while some others are dismissed. To avoid the possibility of a contradictory order, the court has to hear all matters together and pass a common order. If writ petitions raising the same issue are heard by different Judges on different occasions, there will be a possibility of contradictory judgments on the same issue. That may create an anomalous situation and create difficulties for the administration of justice. Paragraph 2 of that decision read thus; ‘2. We are of the view that when a similar writ petition challenging the same order has already been admitted and pending consideration, the learned Single Judge was not justified in dismissing the present writ petition at the admission stage. The learned Judge ought to have heard all the matters together and passed a common order. We may, in this connection, refer to the decision of the Apex Court in Bir Bajrang Kumar v. State of Bihar [ AIR 1987 SC 1345 ]. Apex Court took the view that if there are two petitions involving identical points and one is admitted there is no justification in dismissing the other writ petition. Apex Court, therefore, set aside the order of the High Court and remanded the matter to the High Court to be heard along with the pending matter. …….
Apex Court took the view that if there are two petitions involving identical points and one is admitted there is no justification in dismissing the other writ petition. Apex Court, therefore, set aside the order of the High Court and remanded the matter to the High Court to be heard along with the pending matter. ……. We are of the view that if writ petitions raising the same issue are heard by different Judges on different occasions, there will be a possibility of contradictory judgments on the same issue. That may create an anomalous situation and create difficulties for the administration of justice. In this connection, it is appropriate to refer to the principle laid down by this Court in Joy v. Regional Transport Authority [ 1998 (2) KLT 994 ], wherein this Court highlighted the necessity of consistency in rendering judgments. This Court held as follows: “Judicial discipline demands consistency in rendering judgments. A Judicial Officer may hold different views on various aspects. A Judicial Officer may err and pass contradictory orders inadvertently. But once it is brought to the knowledge of the Judicial Officer, he is duty bound to keep track of consistency. Inconsistent orders passed by a judicial officer almost in the same fact situation, and that too on the same day, would give rise to complaint of discriminatory treatment, which will undermine the people’s faith in judicial system and the rule of law. It will cause resentment and anguish and make an imprint in the mind of the litigant that he has been discriminated. A Judicial Officer may err and pass illegal orders, but he shall not err in consistency.” There may be a situation where the pendency of the original petition might not have been brought to the knowledge of the learned Single Judge inadvertently. It is for fitness of things that the parties in the litigation should bring to the notice of the Judge of the pendency of similar matters, and therefore contradictory judgments could be avoided, as we see in the present case. We are of the view that as and when the pendency of an original petition concerning the same issue is brought to the knowledge of the Court, the Court shall post all the cases together and hear the matter.
We are of the view that as and when the pendency of an original petition concerning the same issue is brought to the knowledge of the Court, the Court shall post all the cases together and hear the matter. In this case, when an original petition concerning an identical issue has already been admitted and is pending consideration, the learned Judge was not justified in dismissing the original petition at the admission stage by a detailed order.’ 18. Since the judgment dated 23.03.2023 in W.A.No.545 of 2023, which is sought to be reviewed in this Review Petition is one rendered during the pendency of W.A.Nos.1 of 2023, 84 of 2023, 194 of 2023, 384 of 2023 and 571 of 2023 filed against the common judgment dated 27.09.2022 of the learned Single Judge and since in the said judgment the Division Bench did not consider the challenge made in that Writ Appeal against the order dated 23.01.2023 of the learned Single Judge in R.P.No.1027 of 2022 in W.P.(C)No.2607 of 2022, we find that there is an error apparent on the face of that judgment, warranting interference in exercise of the review jurisdiction of this Court under Order XLVII Rule 1 of the Code of Civil Procedure. In the result, this Review Petition is allowed by recalling the judgment dated 23.03.2023 in W.A.No.545 of 2023. The Registry is directed to list W.A.No.545 of 2023, along with the connected matters, before the Bench as per roster.