IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :
27. 11.2013 CORAM THE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR. JUSTICE R.MAHADEVAN CONT.P.NO.1699 OF2011AND M.P.NO.1 OF2012IN REV. APPLW. SR No.39258 OF2012CONT.P.NO.1699 OF2011G.Guruswamy .. Petitioner Versus 1.Mr.Saikumar, I.A.S., Secretary, Public Works Department, Fort St.George, Chennai. 2.Mr.Gopalakrishnan, Chief Engineer (General), Pubic Works Department, Chepauk, Chennai. .. Respondents PRAYER: Contempt Petition filed under Section 11 of the Contempt of Courts Act, 1971 to punish the respondents herein for non-compliance of the order dated 11.04.2002 passed in W.P.No.19100 of 1999 on the file of this Court. For Petitioner : Shri.V.Prakash Senior Counsel for M/s.S.Kala For Respondents : Shri.P.H.Aravind Pandian Additional Advocate General Assisted by Shri.R.Ravichandran Additional Government Pleader REV. APPLW. SR No.39258 OF2012G.Guruswamy .. Petitioner Versus 1.The State of Tamil Nadu, Rep.by the Secretary, Public Works Department, Fort St.George, Chennai 600 009. 2.The Chief Engineer (General), Pubic Works Department, Chepauk, Chennai 600 005. 3.The Chairman and Managing Director, Tamil Nadu Energy Development Agency, E.V.K.Sampath Maligai, Chennai 600 006. .. Respondents PRAYER: Review Application filed under Article 226 of the Constitution of India, to condone the delay of 3613 days in filing the review application. For Petitioner : Shri.V.Prakash Senior Counsel for M/s.S.Kala For Respondents : Shri.P.H.Aravind Pandian Additional Advocate General Assisted by Shri.R.Ravichandran Additional Government Pleader * * * * * C O M M O N ORDER
R.MAHADEVAN, J The Contempt Petition 1699 of 2011 has been filed for non-compliance of the order dated 11.04.2002 and the review application SR has been filed against the order passed in W.P.No.1020 of 1999 dated 11.04.2002 along with petition to condone the delay of 3613 days in filing the review application.
2. The petitioner has sought to file the present review petition alleging that the existence of two letters in Lr.No.1253/ADM/TEDA/2002 dated 07.06.2002 and Lr.No.1253/2002/ADM dated 12.12.2011 came to his knowledge and therefore prayed this Honble Court to review the order 11.04.2002. The case of the petitioner is that he should have been voluntarily retired from the service of the Public Works Department in the post of Superintending Engineer in view of the above letters.
3. The petitioner earlier had filed four Writ Petitions in W.P.Nos.1017 to 1020 of 1999 and the Government had filed two Writ Petitions in W.P.Nos.19100 of 1999 and 4981 of 2000. The petitioner, who was under the service of the Government in Public Works Department was sent on deputation to the Tamil Nadu Energy Development agency for three years. He was posted as General Manager in parimateria to the post of Superintending Engineer, as he fully qualified for promotion in his parent Department. Later, he joined duty as General Manager on 15.02.1995.
4. Considering the necessity, the petitioner was permanently absorbed into the Agency and a Circular Resolution was passed to that effect. Notwithstanding the same, the Agency repatriated him back to the parent Department by proceedings, dated 13.02.1998 and by proceedings, dated 07.04.1998, the parent Department informed him that he was being posted as Electrical Engineer in PWD, Chennai. In the meantime, the petitioner submitted for voluntary retirement from service and since no favourable orders were received went on leave. Effectively, he did not work in any Department from 15.02.1998 to 31.08.1999. The petitioner filed Writ Petitions in W.P.Nos.1019 and 1020 of 1999 for Mandamus to forward the Resolution for absorption as General Manager. The Government had challenged the order of the Tribunal directing the State Government to permit the petitioner to go under voluntary retirement.
5. By a common order dated 11.04.2002, this Court moulding the relief held that since the Circular Resolution was passed by 6 members absorbing the petitioner in accordance with the bye-laws of the Agency, the absorption had come into effect and the termination of lien with the parent Department stood terminated as per Rule 14-A of the Fundamental Rules. This Court earlier went on to hold that the petitioner was already absorbed into the Tamil Nadu Energy Development Agency and set aside the proceedings dated 13.02.1998 and 07.04.1998. Considering the fact that the petitioner got superannuated by that time, this Court directed the Audit Officer to communicate the date of retirement and the amount of pension drawn from the Government to enable the Agency to revise the terms of employment, if necessary. Three months time was given to pay all the retirement benefits to the petitioner. It was expressly made clear that since the petitioner did not work either under the parent Department or foreign employer Agency, he was not entitled to any salary for the period from 15.02.1998 to 31.08.1999. The Writ Petitions filed by the State were dismissed.
6. During the pendency of the Special Leave Petition, departmental proceedings were initiated against the petitioner for absence from duty during the period from 15.02.1998 to 31.08.1999. After enquiry, the petitioner was found guilty and a punishment of cut in pension of Rs.150/- per mensum for a period of three years was imposed on the petitioner. The Honble Apex Court dismissed the appeals of the State, confirming the orders of the Division Bench of this Court.
7. Subsequently, the petitioner filed the Contempt Petition in Cont.P.No.1699 of 2011 for willful disobedience of the order in W.P.No.19100 of 1999 claiming that he should have been voluntarily retired with effect from 14.02.1998. Now, the petitioner has come up with application for review after 3613 days alleging that the observations in W.P.No.1020 of 1999 is contrary to the factual position and therefore wants this Court to review the order dated 11.04.2002.
8. Now, the only question to be decided is whether the order dated 11.04.2002 can be reviewed in the facts and circumstances of the case.
9. The learned senior counsel appearing for the review petitioner argued that since the order passed by this Court is contrary to the facts, and only now it has come to his knowledge as per the letters dated 07.06.2002 and 12.12.2011, the petitioner had not been absorbed and regularized in the service of the foreign Agency and therefore, he might be voluntarily retired as Superintending Engineer from the parent Department. Since the order is factually incorrect, the learned Senior Counsel prayed for review of the earlier order exercising discretionary power vested with this Court.
10. Per contra, the learned Additional Advocate General appearing for the respondents submitted that the order of this Court had attained finality and despite the knowledge of the earlier letters, the review application has been filed to re-open the issue after dismissal of the SLP. The learned Additional Advocate General placing reliance upon the judgments of the Hon'ble Apex Court in the decisions in AJIT KUMAR RATH vs. STATE OF ORISSA [(1999) 9 SCC596 and KHELA BANERJEE AND ANOTHER vs. CITY MONTESSORI SCHOOL AND OTHERS [(2013) 7 SCC615 insisted that 12 years delay in filing the Review Application cannot be condoned and the facts also does not warrant any review on merits.
11. The scope for review is borrowed under Order XLVII of Code of the Civil Procedure. Recalling the earlier order must be done only in exceptional circumstances, as the resultant effect would set at naught the actions taken in compliance of the earlier orders. There must be an error apparent on the face of record or some evidence which though could not be produced after due diligence, if produced, would result in a different decision or for any other sufficient reason, provided the person seeking review must prove that the existence of the document was not within his knowledge earlier. If, even on the consideration of the document, same decision is possible the Courts would refrain to interfere.
12. In the judgment reported in AJIT KUMAR RATH vs. STATE OF ORISSA [(1999) 9 SCC596, the Honble Apex Court has in paragraphs 30 and 31 held as follows: 30. The provisions extracted above indicate that the power of review available to the Tribunal is the same as has been given to a court under Section 114 read with Order 47 CPC. The Power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression any other sufficient reason used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the rule.
31. Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of liberty given to the Tribunal under the Act to review its judgment. 13. In the judgment reported in KHELA BANERJEE AND ANOTHER vs. CITY MONTESSORI SCHOOL AND OTHERS [(2013) 7 SCC615, the Hon'ble Apex Court dismissed the application for review holding that the error was not germane to the controversy adjudicated.
14. In the judgment reported in NORTHERN INDIA CATERERS (INDIA) LTD. vs. Lt. GOVERNOR OF DELHI [(1980) 2 SCC167 in paragraph 9 the Hon'ble Apex Court held as follows: 9. Now, besides the fact that most of the legal material so assiduously collected and placed before us by the learned Additional Solicitor General, who has now been entrusted to appear for the respondent, was never brought to our attention when the appeals were heard, we may also examine whether the judgment suffers from an error apparent on the face of the record. Such an error exists if of two or more views canvassed on the point it is possible to hold that the controversy can be said to admit of only one of them. If the view adopted by the Court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record. 15. In yet another judgment of the Hon'ble Apex Court reported in KAMLESH VERMA vs. MAYAWATI AND OTHERS [(2013) 8 SCC320, the Honble Apex Court after examining various judgments passed earlier has held as follows: 12. This Court has repeatedly held in various judgments that the jurisdiction and scope of review is not that of an appeal and it can be entertained only if there is an error apparent on the face of the record. A mere repetition through different counsel, of old and overruled arguments, a second trip over ineffectually covered grounds or minor mistakes of inconsequential import are obviously insufficient.......... 16. In the above judgment, the Hon'ble Apex Court has laid down the principles as under: 19. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. Summary of the Principles:
20. Thus, in view of above, the following grounds of review are maintainable as stipulated by the statute:
20. 1. When the review will be maintainable:- (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of record; (iii) Any other sufficient reason. The words any other sufficient reason has been interpreted in Chhajju Ram vs. Neki, AIR1922PC112and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Others (1955) 1 SCR520 to mean a reason sufficient on grounds at least analogous to those specified in the rule. The same principles have been reiterated in Union of India Vs Sandur Manganese & Iron Ores Ltd. & Ors., JT (2013) 8 SC275 20.2. When the review will not be maintainable: (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) 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. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an errror which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived. 17. Keeping the above principles in mind, let us examine the facts and the grounds of review in this case.
18. The only ground on which review is sought is that according to the letters of the the first respondent in Lr.No.1253/ADM/TEDA/2002 dated 07.06.2002 and Lr.No.1253/2002/ADM dated 12.12.2011, the petitioner has not been absorbed and regularized in the services of the Agency and therefore sought for a review.
19. Upon examining the above documents, it is clear that the letter dated 07.06.2002 has been filed by the petitioner while arguing the matter before the order was passed. With regard to the second letter, it can be seen that it is only the petitioner, who suddenly had a change of mind and preferred to be voluntarily retired over absorption in Tamil Nadu Energy Development Agency. It is pertinent to mention here that in the Common Order dated 11.04.2002, this Court considering the fact that the petitioner was superannuated and moulded the relief by directing the respondents to pay the terminal benefits within three months.
20. A clear finding was also given indicating that once a Circular Resolution was passed absorbing the petitioner, he is deemed to be absorbed as a permanent employee of the Agency and the termination of lien from parent Department is automatic. The petitioner had approached this Court when both his avenues to seek terminal benefits were closed. In order to avail himself the benefit from the parent Department, he had expressed to voluntarily retire. But he had also challenged the order repatriating him to the parent Department. Once the order repatriating him is set aside, he can only be considered as the employee of Tamil Nadu Energy Development Agency. His resignation becomes inconsequential. It is only under those circumstances, the Court moulded the relief and also held that he shall not be entitled for any wages for the period from 15.02.1998 to 31.08.1999.
21. Now to avail more benefits by availing the other remedy, the petitioner under the guise of review is only attempting to re-open the issue after nearly 12 years, which is not permissible. We do not find any error apparent on the face of the order passed in W.P.No.1020 of 1999. The issue sought to be argued now was already agitated before this Court. Even if the above letters were brought to the knowledge of this Court, we dont think that a different view could be taken in the facts and circumstances of the case for the simple reason that this Court cannot confer any right, which is not available to the petitioner under the statute. If the petitioner was really aggrieved, he must have preferred an appeal, which he has failed to do.
22. The case of the petitioner squarely falls into the second limb of principles, namely, when review is not maintainable as laid down by the Hon'ble Supreme Court in the judgment referred above. The first respondent also submitted documents to show that they have recalled the order imposing punishment of cut in pension after the final orders of the Hon'ble Apex Court and complied with the earlier orders of this Court and paid the terminal benefits.
23. Therefore, no case is made out for reviewing the earlier order in the facts and circumstances of the case and hence, the application to condone the delay in filing Review Application is dismissed. Consequently, the Contempt Petition is closed. (N.P.V.,J.) (R.M.D.,J.) 27.11.2013 Index : Yes Internet : Yes sri N.PAUL VASANTHAKUMAR, J.
AND R.MAHADEVAN, J.
sri To 1.The Secretary, Government of Tamil Nadu, Public Works Department, Fort St.George, Chennai 600 009. 2.The Chief Engineer (General), Pubic Works Department, Chepauk, Chennai 600 005. 3.The Chairman and Managing Director, Tamil Nadu Energy Development Agency, E.V.K.Sampath Maligai, Chennai 600 006. PRE-DELIVERY COMMON ORDER
MADE IN CONT.P.NO.1699 OF2011AND M.P.NO.1 OF2012IN REV. APPLW. SR No.39258 OF201227.11.2013