Sujatha Aniyeri v. Kannur University, Represented By Its Registrar
2025-02-18
ANIL K.NARENDRAN, MURALEE KRISHNA S.
body2025
DigiLaw.ai
JUDGMENT : (Muralee Krishna S., J.) These writ appeals are filed under Section 5(i) of the Kerala High Court Act, 1958, by the appellants who are retired employees of the 1st respondent Kannur University, challenging the orders dated 25.09.2024 passed by the learned Single Judge in R.P. Nos.1169 and in 1149 of 2023 respectively, whereby the judgment dated 16.08.2022 in W.P.(C) No.24668 of 2022 and the judgment dated 22.09.2022 in W.P.(C)No.28701 of 2022 were reviewed and the direction to pay interest at the rate of 8% on the retiral or pensionary benefits due to the appellants, in case of failure of the 1st respondent to pay the same within two months from the date of receipt of a copy of the said judgment, was vacated. Since the issue to be decided in these writ appeals are the same, they are being heard and disposed of by this common judgment. 2. The appellant in W.A.No.1818 of 2024 retired from service on 31.01.2017 while holding the post of Assistant Librarian and the appellant in W.A.No.1819 of 2024 retired from service on 30.06.2017 while holding the post of Deputy Librarian at Kannur University. The appellant in W.A.No.1818 of 2024 filed W.P.(C)No.24668 of 2022 and the appellant in W.A.No.1819 of 2024 filed W.P.(C)No.28701 of 2022 under Article 226 of the Constitution of India seeking a writ of mandamus commanding the respondents to grant them full terminal benefits including the DCRG, leave surrender value, etc., with 10% interest and also seeking some other ancillary reliefs. The appellants contended that they were granted promotion to their respective posts under valid orders of the University and, therefore, there is no reason to deny pensionary and retiral benefits to them. The 1st respondent University took a stand in the writ petitions that full disbursement of the appellant’s retiral and pensionary benefits was held up as it was objected by the audit department. According to the University, the Audit Department raised the objection that the promotion of the appellants in the years 2011 and 2017 respectively was irregular and granted without their probation in the earlier post being validly declared.
According to the University, the Audit Department raised the objection that the promotion of the appellants in the years 2011 and 2017 respectively was irregular and granted without their probation in the earlier post being validly declared. After considering the rival contentions, pleadings, and materials on record, the learned Single Judge allowed the writ petitions and directed the University to pay full eligible retiral and pensionary benefits due to the appellants dehors any audit objection with respect to their promotion in the years 2011 and 2017 respectively and subject to every other criterion being satisfied, as expeditiously as possible, but not later than two months from the date of receipt of a copy of the judgment. The learned Single Judge further directed the 1st respondent University to pay interest at the rate of 8% on the due amount from the date on which it became due until it is actually paid if it fails to pay the amount as directed. 3. The 1st respondent University later filed R.P. No.1169 of 2023 and R.P.No.1149 of 2023 under Order XLVII Rule 1 read with Section 114 of the Code of Civil Procedure, 1908 (‘CPC’ for short), seeking to review the judgments in the respective writ petitions to the extent it directs the 1st respondent to pay interest, contending that the entire amount due to the appellants was paid, though not within the time limit stipulated in the judgment. The 1st respondent contended in the review petition that a substantial portion of the amount was paid on 22.02.2023 and the entire liability was discharged on 03.04.2023. It was admitted that there was a delay of nearly 5 months in paying the amount and further stated that the delay occurred since the University was awaiting concurrence from the Government on account of certain audit objections. The appellants contested the review petitions contending that since there was a specific direction in the judgments to pay the retiral benefits to the appellants within a time frame and to pay interest in case of default, the review applications are not maintainable. 4. The learned Single Judge in the impugned orders dated 25.09.2024 passed in R.P. Nos. 1149 of 2023 and 1169 of 2023 found the judgment in the respective writ petitions as not suffering from error apparent on the face of the record.
4. The learned Single Judge in the impugned orders dated 25.09.2024 passed in R.P. Nos. 1149 of 2023 and 1169 of 2023 found the judgment in the respective writ petitions as not suffering from error apparent on the face of the record. However, the learned Single Judge, chose to allow the review petitions holding that the 1st respondent University is a Public Authority stated to be in financial crisis and the delay occasioned to disburse the retiral benefits is only about five months from the time fixed by the Court. The learned Single Judge took these circumstances as mitigating factors to allow the review petitions and consequently vacated the direction to pay interest at the rate of 8% per annum to the appellants by the 1st respondent University. 5. Heard the learned counsel for the appellants, the learned Standing Counsel for the 1st respondent and the learned Senior Government Pleader for respondents 2 and 3. 6. The learned counsel for the appellants submitted that the University paid the retiral benefits as ordered in the judgment of the learned Single Judge only after the filing of a contempt petition by the appellants. The learned counsel, by relying on the judgments of the Apex Court in Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [ (1980) 2 SCC 167 ] and Shanthi Conductors (P) Ltd. v. Assam State Electricity Board [ (2020) 2 SCC 677 ] argued that the grounds of review is not made out in the case in hand. The learned counsel further submitted that a review application is maintainable only if the judgment is suffering from an error apparent on the face of the record and if the direction in the judgment is erroneous, then the remedy is to file an appeal and not a review application. 7. The learned Standing Counsel for the 1st respondent University argued that there is an error apparent on the face of the record in the direction to pay interest on the eligible retiral and pensionary benefits to the appellants. 8. The learned Senior Government Pleader argued that the power of review is not equal to the power under Article 226 of the Constitution of India and the review jurisdiction cannot be exercised without sufficient ground to say that the judgment was passed without noting the settled position of law or by an error apparent on the face of the record.
The learned Senior Government Pleader argued that the power of review is not equal to the power under Article 226 of the Constitution of India and the review jurisdiction cannot be exercised without sufficient ground to say that the judgment was passed without noting the settled position of law or by an error apparent on the face of the record. 9. The issue to be decided in these writ appeals is as to whether the direction in the judgments dated 16.08.2022 and 22.09.2022 in the writ petitions, to pay interest at the rate of 8% to the eligible retiral and pensionary benefits due to the appellant by the 1st respondent was one passed by an error apparent on the face of the record which will come under the purview of Order XLVII Rule 1 of CPC? 10. The direction to pay interest on the eligible retiral and pensionary benefits to the appellants was made by the learned Single Judge, only if the 1st respondent fails to pay the amount within two months as directed in the judgments. The said direction was vacated by the learned single judge taking into consideration of the financial crisis claimed by the 1st respondent as a mitigating factor, which is contented by the appellant as not a sufficient ground for review. In order to understand the circumstances that entitle the court to exercise its power of review, it would be appropriate to go through the provisions concerned as well as the law on the point laid down by the judgments of the Apex Court as well as this Court. Section 114 and Order XLVII of CPC are the relevant provisions as far as the review of a judgment or order of a Court is concerned. 11. Section 114 of the CPC reads thus: “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.” 12.
Order XLVII Rule 1 of the CPC reads thus: “1. 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 which 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 of 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 judgment 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 judgment 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. Explanation- 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.” 13. It is trite that review power under Section 114 read with Order XLVII of the CPC is available to be exercised only on setting up any one of the following grounds by the appellant; (i) discovery of a new and important matter or evidence, or (ii) mistake or error apparent on the face of the record ,or (iii) any other sufficient reason. 14. The Apex Court in Tungabadra Industries Ltd v. Government of Andhra Pradesh, Rep. by Deputy Commissioner of Commercial Taxes, Anantapur [ AIR 1964 SC 1372 ] held thus: “A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.
14. The Apex Court in Tungabadra Industries Ltd v. Government of Andhra Pradesh, Rep. by Deputy Commissioner of Commercial Taxes, Anantapur [ AIR 1964 SC 1372 ] held thus: “A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that 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”. 15. In Northern India Caterers [ (1980) 2 SCC 167 ] the Apex Court held that under the guise of review, a litigant cannot be permitted to reagitate and reargue the questions, which have already been addressed and decided. 16. The Apex Court in Parsion Devi v. Sumitri Devi [ (1997) 8 SCC 715 ] held thus: “Under Order 47 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 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 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”.” 17. In Kamalesh Varma v. Mayavathi [ (2013) 8 SCC 320 ] the Apex Court held thus: “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. A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected, but lies only for patent error”. (Underline supplied) 18.
A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected, but lies only for patent error”. (Underline supplied) 18. In N.Anantha Reddy v. Anshu Kathuria [(2013) 15 SCC 534] the Apex Court held that the mistake apparent on record means that the mistake is self-evident, needs no search, and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits. 19. In Sasi (D) through LRs v. Ananthakrishna Nair and others [ AIR 2017 SC 1432 ] the Apex Court held that in order to exercise the power of review, the error has to be self-evident and is not to be found out by a process of reason. 20. In Shanthi Conductors (P) Ltd. [ (2020) 2 SCC 677 ] the Apex Court by referring to Parsion Devi [(1997) 8 SCC 750] held thus: “The scope of review is limited and under the guise of review, petitioner cannot be permitted to reagitate and reargue the questions, which have already been addressed and decided”. 21. Again in Govt. of NCT of Delhi v K.L. Rathi Steels Ltd [2024 SCC Online SC 1090] the Apex Court considered the grounds for review in detail and held thus: “Order XVLII does not end with the circumstances as S.114, CPC, the substantive provision, does. Review power under S.114 read with Order XLVII, CPC is available to be exercised, subject to fulfillment of the above conditions, on setting up by the review petitioner any of the following grounds: (i) discovery of new and important matter or evidence; or (ii) mistake or error apparent on the face of the record; or (iii) any other sufficient reason.” 22. The 1st respondent sought review of the judgments dated 16.08.2022 and 22.09.2022 passed by the learned Single Judge in W.P.(C) No. 24668 of 2022 and in W.P.(C)No.28701 of 2022, on the ground of error apparent on the face of the record and hence we are concerned about that ground alone in this writ appeal.
The 1st respondent sought review of the judgments dated 16.08.2022 and 22.09.2022 passed by the learned Single Judge in W.P.(C) No. 24668 of 2022 and in W.P.(C)No.28701 of 2022, on the ground of error apparent on the face of the record and hence we are concerned about that ground alone in this writ appeal. The operative portion of the judgments in the writ petitions would show that the direction to pay interest was made by the learned Single Judge as a default clause, by directing to pay the same, only in case of failure of the 1st respondent to pay the terminal benefits due to the petitioner within the time frame stipulated. It was a considered order passed by the learned Single Judge. It is clear from the operative portion of the judgments in the writ petitions that the learned Single Judge specifically directed the 1st respondent to pay the full eligible retiral and pensionary benefits to the appellants positively within two months from the date of receipt of a copy of the judgments. The direction to pay interest at the rate of 8% on these eligible amount was ordered by the learned Single Judge so as to compel the 1st respondent to disburse the amount within the time stipulated in the judgments. This shows that the learned Single Judge has applied his mind while making such a direction in the judgments. The respondents have no case that this direction in the judgments of the learned Single Judge is against any statutory provision or it is made by oversight without considering the merits of the contentions raised by the parties. The 1st respondent in the review petitions filed by it contended that it could not pay the amount within the time frame stipulated by the learned Single Judge due to the objections raised by the audit department. If that be the cause for delay in paying the amount, the 1st respondent ought to have filed an interlocutory application seeking extension of time in complying with the direction in the judgment passed in the writ petitions. Without doing the same the 1st respondent later approached the learned Single Judge with review petitions stating that the direction to pay interest made by the learned Single Judge in the writ petitions surfers from error apparent on the face of record, which is nothing but a frivolous contention.
Without doing the same the 1st respondent later approached the learned Single Judge with review petitions stating that the direction to pay interest made by the learned Single Judge in the writ petitions surfers from error apparent on the face of record, which is nothing but a frivolous contention. Moreover, even while allowing the review petition, the learned Single Judge found that there was no error apparent in the judgments, so as to entertain the review petition. But the learned Single Judge allowed the writ petitions only on mitigation factors, which is not permitted under Law in view of the principles laid down in the above-referred judgment. If the direction in the judgment of the learned Single Judge was erroneous, then the remedy of the 1st respondent was to challenge the same by filing appeal and not by filing review petition. The learned Single Judge erred in properly appreciating these aspects while allowing the review petitions filed by the 1st respondent. In such circumstances, we are of the view that the impugned orders have no legs to stand, and they are liable to be set aside. In the result, the appeals are allowed by setting aside the impugned orders dated 25.09.2024 passed by the learned Single Judge in R.P Nos 1149 and 1169 of 2023 and the R.Ps stand dismissed.