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2025 DIGILAW 595 (KER)

RAKESH G v. STATE OF KERALA

2025-03-14

ANIL K.NARENDRAN, MURALEE KRISHNA S.

body2025
ORDER : Muralee Krishna, J. This review petition is filed under Order XLVII Rule 1 read with Section 114 of the Code of Civil Procedure 1908 by the appellant in W.A.No.2117 of 2024 seeking review of the judgment dated 18.02.2025 passed by this Court whereby the writ appeal was dismissed. 2. According to the petitioner, certain material facts that are inevitable for deciding the writ appeal could not be produced along with the writ appeal or during the pendency of the same. Had those documents now produced with the review petition been produced earlier, the petitioner would have got all the reliefs sought for. Some of those documents were not available and he could get it only now. Apart from that there is an error apparent on the face of record in the judgment sought to be reviewed. The petitioner produced Annexures I to V along with the review petition, which according to him if produced earlier, the decision in the appeal would have been different. 3. Heard the learned counsel for the petitioner, the learned Standing Counsel for the 2 nd respondent and the learned Senior Government Pleader. 4. The petitioner raised four reasons to seek review of the judgment dated 18.02.2025 passed by this Court in the writ appeal. According to the petitioner his prayer to quash Ext.P4 order of transfer from Shirdi to Imphal was rejected by this Court mainly for the reason that for 20 years i.e. from 2005 to 2023 he was working in the Headquarters at Kochi. But in the writ petition it was pleaded by him that during the tenure from 2011 till July 2023 the petitioner was executing various jobs allocated to him in the role of Group Head, heading various Business Verticals of KITCO. It was also pleaded that ever since his joining the organisation the petitioner was working in KITCO looking after various infrastructure projects located in and outside Kerala as well outside India from KITCO Head Office. According to the petitioner, this pleading in the writ petition was not disputed by the 2 nd respondent and instead admitted in para 18 of the counter affidavit. According to the petitioner, this pleading in the writ petition was not disputed by the 2 nd respondent and instead admitted in para 18 of the counter affidavit. The second ground for review raised by the petitioner is that the prayer to quash Ext.P7 was rejected by this Court mainly for the reason that the petitioner was also a party to the said decision, being one of the members of the Internal Committee of Senior Officers which recommended the management to reduce the salary. It is a mistaken fact and the petitioner was not a party to the said decision even according to the 2 nd respondent. The third ground for review stated by the petitioner is that for rejecting the prayer to quash Ext.P7 this Court gave a reason that the petitioner did not dispute the contention in the counter affidavit of the 2 nd respondent that the loss of the company touched Rs.12.80 crores as on 30.11.2024. In fact the petitioner was not in a position to dispute the same as the balance sheet of the company for the year 2024 was not circulated or available in the public domain of KITCO, including the website of KITCO. By producing Annexure II Director’s report for the financial year ended March 31, 2023 of the 2nd respondent, the petitioner contends that the company is not in a loss. The fourth ground stated by the petitioner for review is that his prayer to quash Ext.P7 was rejected stating the reason that he did not challenge the decision to reduce the salary till the filing of the writ petition, which is against the facts. In fact the order dated 21.01.2025 by the Labour Commissioner as referred to in the judgment was arrived at on the complaint made by the 2 nd respondent and Annexure IV minutes of the meeting dated 07.10.2023 held in the chambers of the Deputy Labour Commissioner would show that the petitioner was also present in that meeting and signed as serial No.7. According to the petitioner, for all these reasons, the judgment passed by this Court has to be reviewed and the writ appeal has to be allowed. 5. According to the petitioner, for all these reasons, the judgment passed by this Court has to be reviewed and the writ appeal has to be allowed. 5. 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. 6. 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.” 7. 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.” 8. 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 petitioner; (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. 9. In Northern India Caterers v. Lt. Governor of Delhi [ (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. 10. 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”. (Underline supplied) 11. 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. A review petition, it must be remembered has a limited purpose and cannot be allowed to be “an appeal in disguise”. (Underline supplied) 11. 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. 12. 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. 13. In Shanthi Conductors (P) Ltd. v. Assam State Electricity Board and others [ (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”. 14. 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.” 15. In Sujatha Aniyeri v. Kannur University [2025 KHC OnLine 212] in which one of us is a party [Muralee Krishna S., J] after considering the point, what constitutes an error apparent on the face of the record, this court held that review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits. If the direction in the judgment was erroneous, then the remedy was to challenge the same by filing an appeal and not by filing a review petition. 16. The review does not permit rehearing of the matter on merits. If the direction in the judgment was erroneous, then the remedy was to challenge the same by filing an appeal and not by filing a review petition. 16. While viewing the judgment of this Court in the writ appeal and the grounds of review raised by the petitioner, within the parameters provided for review under Order XLVII Rule 1 read with Section 114 of the CPC, at the outset itself we may say that the petitioner has not made out any sufficient ground to review the judgment. 17. A reading of the judgment in the writ appeal would make it clear that prayer to quash Ext.P4 order of transfer was not rejected by this Court for the reason that the petitioner was working in the Headquarters at Kochi from 2005 to 2023 as contended in the review petition. In the judgment, this Court observed that the petitioner who was appointed in the 2 nd respondent company continued in the Head Office of the company at Kochi from 14.10.2005 till he was transferred to Shirdi on 10.07.2023. This Court did not find that during this period the petitioner was completely stationed at Kochi without moving outside. From the pleadings in the writ petition itself, it is clear that the petitioner, after his appointment on 14.10.2005 in the KITCO Head Office at Kochi continued therein, in different posts, till he was transferred on 24.06.2023 to Shirdi Airport Site. Paragraphs 1 and 2 of the writ petition is reproduced hereunder for better understanding of the pleadings on this aspect. "1. The petitioner had entered service in the 2 nd respondent organization on 14.10.2005 as Consultant grade II as a permanent employee. He was promoted as Consultant Grade -I in 2009, Senior Consultant Grade—II in the year 2013 and Senior Consultant Grade I in 2017 based on the interview conducted by the Committee formed with external persons and by the Board of Directors of KITCO. Thereafter there had been no promotion in KITCO since 2020. During this period, even when the petitioner was a Consultant Grade I, being the lowest grade of permanent employees, due to the performance, he was designated as Group Head along with senior most employees at that time. Thereafter there had been no promotion in KITCO since 2020. During this period, even when the petitioner was a Consultant Grade I, being the lowest grade of permanent employees, due to the performance, he was designated as Group Head along with senior most employees at that time. During the tenure from 2011 till July 2023, he was executing various jobs allocated to him in the role of Group Head, heading various Business Verticals of KITCO. At present the petitioner is working as Senior Consultant Grade I. Ever since his joining the organization he was working in KITCO looking after various infrastructure projects located in and outside Kerala as well outside India from KITCO Head Office. 2. While so as per letter no. 1442-PER-HR-dated 24 th June 2023 of the 2 nd respondent, true copy of which is produced herewith and marked as Exhibit P1, the petitioner was transferred to Shirdi Airport Site as Project Director and is still working there since 10.07.2023”. 18. In the judgment the only observation made by this Court is that till he was transferred to Shirdi by virtue of Ext.P1 order of transfer dated 24.06.2023, he was working in the Head Office at Kochi. The petitioner has no case that he was transferred to another work site for a specified lengthy period during 2005 to 2023. As per the pleading in the writ petition extracted above, it was while working at the Head Office he claims to have executed various jobs allotted to him in and outside Kerala as well as outside India. As noted above, the period of employment of the petitioner at the Head Office at KITCO was not taken as a ground for dismissing his prayer for quashing Ext.P4, in the judgment passed by this Court in the writ appeal. This court specifically noted in paragraph 22 of the judgment that the petitioner was transferred to Shirdi in the year 2023. Therefore, there is no error in the findings of this Court regarding that aspect. 19. While coming to the second contention raised by the petitioner that this Court found that the petitioner was also a party to Ext.P7 decision is concerned, no such finding was given in the judgment. In paragraphs 8 and 11 of the judgment this Court noted the argument of the learned counsel for the 2 nd respondent that the petitioner was a party to Ext.P7 decision. In paragraphs 8 and 11 of the judgment this Court noted the argument of the learned counsel for the 2 nd respondent that the petitioner was a party to Ext.P7 decision. But while considering that argument this Court in para 12 of the judgment observed that from Ext.P7 it is evident that the decision for deduction of 20% of the salary payable to the employees was intimated to the petitioner by the Internal Committee of the Senior Officers. Therefore, the contention of the petitioner that this Court found him as a party to Ext.P7 decision is untenable. 20. The petitioner now produced Annexure II document to contend that at the time of deciding the writ petition and writ appeal, he was not in a position to dispute the contention of the 2 nd respondent regarding the financial condition of the company. The learned counsel for the 2 nd respondent countered this argument contending that if petitioner could procure Annexure II document at present, he could have obtained it even at the time of consideration of the writ petition or the writ appeal. 21. It is the duty of a party to the litigation to plead all necessary facts and to produce all the documents relied on by him at the earliest possible opportunity. Even to produce the document in the appellate stage the conditions under Order 41 Rule 27 of C.P.C has to be made out. When a decision is taken on the basis of the documents placed before the court, without proving that the petitioner could obtain the document only after the judgment, it cannot be permitted to produce a document and contend that if the document had been produced earlier, the decision would have been in his favour. Hence by producing Annexure II at this stage, the petitioner cannot claim that the document was not in his position or knowledge at the time of disposal of the writ appeal. 22. While coming to the last contention of the petitioner regarding the finding of this Court that the petitioner did not challenge the decision to reduce the salary till the filing of the writ petition is concerned, even now the petitioner says that from Annexure IV minutes of the meeting conducted in the chambers of the Deputy Labour Commissioner it could be seen that he was one of the signatories. According to him, the complaint before the Labour Commissioner was filed by the 2 nd respondent. Mere participation in the meeting cannot be taken as a circumstance to say that the petitioner challenged the decision of the management to reduce the salary. Apart from all, this Court refused to interfere in the decision of the learned Single Judge rejecting the reliefs pertaining to Ext.P7 decision not for the aforesaid reason of not challenging that decision by the petitioner alone. It is specifically observed by this Court that no statutory violation was pointed out by the petitioner in the decision to reduce the salary of the employees to meet the financial condition of the company. 23. Having considered the pleadings and materials on record and the submissions made at the Bar, we find no sufficient reason to say that the petitioner has made out any ground provided under Order XLVII Rule 1 and Section 114 of the CPC to review the judgment dated 18.02.2025 passed by this Court in the writ appeal and accordingly the review petition stands dismissed. 24. Before parting, we may note that as observed by this Court in paragraph 12 of the judgment, after filing of the writ petition the monthly salary arrears due to the petitioner was paid by the 2 nd respondent as directed by the learned Single Judge on a submission by the learned counsel for the petitioner that if the salary is paid, the petitioner is ready to move to Imphal. It was based on that submission a sum of Rs.2,98,378/- was paid to the petitioner by the 2 nd respondent towards salary arrears. But thereafter the petitioner came up with the appeal. It is also pertinent to note at this juncture that when we pronounced the judgment of the writ appeal in the open Court, the learned counsel for the petitioner submitted that a breathing time may be granted to the petitioner to join in his transferred place at Manipur International Airport Site and accordingly we granted him one week time from the date of judgment to join his transferred place. The learned counsel for the 2 nd respondent submitted that even now the petitioner has not joined Manipur International Airport Site at Imphal. The learned counsel for the 2 nd respondent submitted that even now the petitioner has not joined Manipur International Airport Site at Imphal. From the above facts, it appears that the intention of the petitioner is to drag the proceedings by filing this review petition, which is an appeal in disguise, and thereby delay his joining in the transferred place of employment.