Gujarat High Court
High Court Of Gujarat vs State Of Gujarat & 1....Opponent(S) on 5 September, 2014
Author: K.J.Thaker
Bench: Vijay Manohar Sahai, K.J.Thaker
C/MCA/1448/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL APPLICATION (FOR REVIEW) NO. 1448 of 2014
In LETTERS PATENT APPEAL NO. 1358 of 1998
In SPECIAL CIVIL APPLICATION NO. 6421 of 1993
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or
any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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HIGH COURT OF GUJARAT....Applicant(s)
Versus
STATE OF GUJARAT & 1....Opponent(s)
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Appearance:
MR SHALIN MEHTA, LEARNED SENIOR COUNSEL with MR HEMANG M
SHAH, ADVOCATE for the Applicant(s) No. 1
MR VISHAL PATEL, AGP for the Opponent(s) No. 1
MR SHIVANG J SHUKLA, ADVOCATE for the Opponent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 05/09/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE K.J.THAKER)
1. The matter has been taken up for hearing by consent of the respective parties.
2. By way of this review application, the applicant has prayed for the following reliefs:
"a) to review the common oral judgment dated 27.03.2014 passed in Letters Patent Appeal No.1358 of 1998 and recall the direction "have continued in service and retired on the day of his superannuation and he be paid all the benefits including full back wages with all the retiral benefits." on the ground that the opponent no.2 was practicing as an advocate in the Subordinate Courts, Anand and Nadiad.
b) to stay the operation and implementation of the common oral judgment dated 27.03.2014 passed in Letters Patent Appeal No.1358 of 1998.
bb) to review the common oral judgment dated 27.03.2014 passed in Letters Patent Appeal No.1358 of 1998 by recalling the same and permitting the applicant to prosecute the Letters Patent Appeal No.1358 of 1998 afresh on its merits.
c) to pass any other appropriate relief that this Hon'ble Court may deem fit in the interest of justice and legality.
d) to condone the delay of 5 days in preferring the present Misc.
Civil Application."
3.1 The facts of this case are that the delinquent was appointed as Judicial Magistrate, First Class on 15.12.1981. At the relevant time, he was working as Civil Judge (J.D.) and Judicial Magistrate, First Class, Anand. On 14.11.1991, at about 9.30 p.m., the delinquent reached at the house of Ms.S. C. Srivastav, Joint Page 2 of 12 C/MCA/1448/2014 JUDGMENT Civil Judge (J.D.) and Judicial Magistrate, First Class, Petlad. Hence she was surprised to see him at odd hours. She inquired as to why he had come, but he could not give any satisfactory answer. The conduct of the delinquent was seen unnatural and he appeared to be in drunken condition. She was very much embarrassed as her residence was in a lonely place. There was another quarter of Mr. Vasa falling on the way to her quarter. From the behaviour of the delinquent, she felt unsafe in his presence. Her impression was that had she been alone, the delinquent would have misbehaved with her. She was very much annoyed by this chapter of uncalled visit by the delinquent and she was very much mentally disturbed due to the incident and she went to narrate about the incident to the District Judge, Kheda at Nadiad on 18.11.91, who directed her to give a complaint in writing. Accordingly, she went again on 19.11.91 and reported the matter in writing to the District Judge, Kheda at Nadiad. The District Judge, Kheda at Nadiad recorded the statements of Ms.S C Srivastav, Mr. A.G.Vasa, Civil Judge (J.D.), and JMFC, Petlad and Mr. Ahmedmiya Malek on 25.11.91. The matter was referred to the High Court by a letter dated 16.12.91. The Joint Registrar, High Court of Gujarat under the direction of the then Acting Chief Justice of the High Court of Gujarat informed the opponent No.2 about the decision to hold a departmental inquiry against him. Accordingly, on 16.12.1991 a charge sheet was issued on the opponent No.2. The opponent No.2 filed his reply to the charge sheet on 20.01.1992 denying the charges that had been alleged against him. The departmental inquiry proceedings were conducted and on 21.07.1992, the Inquiry Officer held the charges proved against the opponent No.2. On 5.4.1993, the opponent No.2 was dismissed from judicial service.
3.2 Being aggrieved by the dismissal notification issued by the opponent No.1, the opponent No.2 preferred Special Civil Page 3 of 12 C/MCA/1448/2014 JUDGMENT Application No.6421/93. On 11.11.1998, this Court partly allowed the Special Civil Application and set aside the dismissal.
3.3 Thereafter, being aggrieved by the judgment dated 11.11.1998, the opponent No.1 and the applicant herein jointly preferred Letters Patent Appeal No. 1358 of 1998. Whereas, the opponent No.2 preferred Letters Patent Appeal No. 1395 of 1998. On 18.11.1998, this Court passed an order in Civil Application No.10699 of 1998 in Letters Patent Appeal No.1358 of 1998, staying the operation and implementation of the judgment dated 11.11.1998. On 31.21.2009, the opponent No.2 attained the age of superannuation.
3.4 On 27.03.2014, Letters Patent Appeal No.1358 of 1998 and Letters Patent Appeal No. 1395 of 1998 was dismissed with the direction that the delinquent be treated to have continued in service and retired on the day of his superannuation.
4. We have heard Mr.Shalin Mehta, learned Senior Counsel assisted by Mr.Hemang M.Shah, learned advocate, appearing for the applicant, Mr.Vishal Patel, learned Assistant Government Pleader, appearing for the respondent No.1 and Mr. Shivang J.Shukla, learned advocate, appearing for the respondent No.2.
5. Mr.Shalin Mehta, learned Senior Counsel has taken us through the entire records and strenuously tried to persuade that the judgment of the learned Single Judge is bad as he has appreciated and re-appreciated the evidence and substituted the punishment, which he should not have done, and this Court while exercising powers under the Letters Patent could not have confirmed the same, but ought to have sent the matter back to the Enquiry Officer.
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6. In a recent decision in the case of Kamlesh Verma v. Mayawati and others reported in AIR 2013 SC 3301 , the Apex Court has underlined the following grounds for review which were stipulated by the statute, which reads as under:
"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. 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. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. The power of review can be exercised for correction of a mistake but not to substitute a view. The mere possibility of two views on the subject is not a ground for review. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII 15 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.
Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
(A) 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 the record;
(iii) Any other sufficient reason.
(B) 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.Page 5 of 12
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(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 error 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."
Therefore, on the above principles laid down by the Apex Court, we have examined and also permitted to raise all grounds for re-examination to the case on hand as the applicant came up with draft amendment for reviewing the entire decision on merits.
6.1 While considering the matter we have given anxious thought to this argument. Answer to this argument will be found in the latest decision of the Apex Court in the case of Anant R.Kulkarni v. Y.P. Education Society and others reported in (2013) 6 SCC 515, wherein it is held as under:
"Where the chargesheet is accompanied by the statement of facts and the allegations are not specific in the chargesheet, but are crystal clear from the statement of facts, in such a situation, as both constitute the same document, it cannot be held that as the charges were not specific, definite and clear, the enquiry stood vitiated. Thus, nowhere should a delinquent be served a chargesheet, without providing to him, a clear, specific and definite description of the charge against him. When statement of allegations are not served with the chargesheet, the enquiry stands vitiated, as having been conducted in violation of the principles of natural justice. Evidence adduced should not be perfunctory, even if the delinquent does not take the defence of, or make a protest with against that the charges are vague, that does not save the enquiry from being vitiated, for the reason that there must be fair- play in action, particularly in respect of an order involving adverse or penal consequences. What is required to be examined is whether the delinquent knew the nature of accusation. The charges should be specific, definite and giving details of the incident which formed the basis of charges and no enquiry can be sustained on vague charges. (Vide: State of Andhra Pradesh & Ors. v. S. Sree Rama Rao, AIR 1963 SC 1723; Sawai Singh v. State of Rajasthan, AIR 1986 SC 995; U.P.S.R.T.C. & Ors. v. Ram Chandra Yadav, AIR 2000 SC 3596; Union of India & Ors. v. Gyan Chand Chattar, (2009) 12 SCC 78; and Anil Gilurker v. 11 Page 12 Bilaspur Raipur Kshetria Gramin Bank & Anr., (2011) 14 SCC 379)."
Therefore, the matter cannot be sent back as the Page 6 of 12 C/MCA/1448/2014 JUDGMENT learned Single Judge re-appreciated the evidence only to show that the punishment was not commensurate with the alleged guilt, as the guilt was not established from the evidence led at all.
6.2. The above submissions made by Mr.Shalin Mehta, learned Senior Counsel will have to be looked into from the following angles:
(i) The said submission has to be rejected as virtually the applicant seeks the same relief which had been sought at the time of arguing the main Letters Patent Appeal and had been negatived.
Once such a prayer has been refused, no review petition would lie which would convert rehearing of the original matter as if it is an appeal. It is well settled principle of law that the power of review cannot be confused with appellate power which enables a superior Court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumstances and only in exceptional cases.
(ii) The decision of the Apex Court reported in the case of Haridas v. Usha Rani Bank (Smt.) reported in 2006 (4) SCC 78 has held as under:
"it was held that power of review under section 114 CPC would have been read in conjunction with the parameters prescribed under order 47 rule 5 of the Code which permits review of judgment or an order only on the following conditions:-
(a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant;
(b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and
(c) on account of some mistake or error apparent on the face of the record or any other sufficient reason.Page 7 of 12
C/MCA/1448/2014 JUDGMENT Reiterating that the powers of review was limited, the exercise of which was strictly conditioned by the provisions of the Code, Arijit Pasayat, J. held that:
An error apparent on the face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any long-drawn process of reasoning."
7. The submission also cannot be sustained even in view of the decision in the case of Anant R.Kulkarni (supra) and hence, the matter though is heard the judgment on this reargument cannot be reviewed.
8. In view of the above, the first argument that the learned Single Judge and this Court committed an error in dismissing the appeal of the present applicant is sans merit and is accordingly rejected.
9. The submission is that the respondent-original appellant was inactive practice and therefore, this Court should not grant him back-wages in view of the provisions of Rule No.15 of the Gujarat Civil Service (Conduct) Rules, 1971, a Government servant cannot engage directly or indirectly in any trade or business nor negotiate for, or undertake, any other employment during the course of their employment without the previous sanction of the State Government. In the present instance, the opponent No.2 was dismissed from service on 15.04.1993 and he started practicing as an advocate in the Subordinate Courts, Anand with effect from the year 2000 onwards. Therefore, the direction issued by this court for granting the benefit of continuity of service with full back wages would run contradictory to the status of the opponent No.2, who had been practicing as an advocate in the Subordinate Courts, Anand.
9.1 In the latest decision of the Apex Court in the case of
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Usha Bharti v. State of Uttar Pradesh and others reported in (2014) 7 SCC 663, the Apex Court has held as under:
"68. We have no hesitation in accepting the submission of Mr. Bhushan that the High Court or this Court, in exercise of its powers of review can reopen the case and rehear the entire matter. But we must hasten to add that whilst exercising such power the court cannot be oblivious of the provisions contained in Order 47 Rule 1 of CPC as well as the rules framed by the High Courts and this Court. The limits within which the Courts can exercise the powers of review have been well settled in a catena of judgments. All the judgments have in fact been considered by the High Court in Pages 16 to 23. The High Court has also considered the judgment in S. Nagaraj & Ors. Vs. State of Karnataka & Anr. (supra), which reiterates the principle that:
"19. Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice................."
69. These principles are far too well entrenched in the Indian jurisprudence, to warrant reiteration. However, for the sake of completion, we may notice that Mr. Bhushan had relied upon Board of Control for Cricket in India v/s Netaji Cricket Club (supra), and Green View Tea & Industries (supra). It would be useful to reiterate the following excerpts:
69.1. In the case of Board of Control for Cricket in India (supra), it was observed that:
"90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefore. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "sufficient reason" in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit".
10. On the basis of the principles enunciated by the Apex Court and the principle analogous to Order 47 Rule 1 of the Code of Civil Procedure, we do not think that this is a fit case where the powers can be exercised. We cannot be oblivious of the provisions Page 9 of 12 C/MCA/1448/2014 JUDGMENT contained in Order-47 Rule-1 of the Code and the Rules framed thereunder.
11. It is submitted by learned Senior Counsel Shri Shalin Mehta that the review is literally reexamination or reconsideration of earlier decision. We have no hesitation in accepting the submission of the learned Senior Counsel Mr.Shalin Mehta that having permitted him to carry out the draft amendment challenging the entire judgment in Letters Patent Appeal, we have heard on merits the entire matter.
12. The opponent No.2 pursuant to his dismissal from Judicial service was practicing as an advocate in the Subordinate Courts at Anand and Nadiad. However, the said fact was brought to attention/knowledge of the applicant only after the judgment was passed by this Court in Letters Patent Appeal No. 1358 of 1998. Therefore, the applicant inquired with the Principal District Judge, Anand and Nadiad about the said information. The Principal District Judge, Anand and Nadiad informed the applicant that opponent No.2 was practicing as an advocate in the Subordinate Courts at Anand and Nadiad. Thus, the status of opponent No.2 had changed from an Officer of Subordinate Judiciary to that of an advocate during the pendency of the proceedings before this Court.
13. The submission made by Mr.Shalin Mehta, learned Senior Counsel about gainful employment was never pleaded nor orally argued does not find favour with this Court. This takes us to the main plank of the argument that the present respondent was a practicing advocate from 1998, and therefore, he is not entitled to any backwages cannot be reviewed. Therefore, the second argument cannot be even countenanced because that fact was Page 10 of 12 C/MCA/1448/2014 JUDGMENT never pleaded nor the argument was brought forth or any amendment was sought and therefore, on the contours of principles enunciated hereinabove, the said submission of Mr.Mehta that the judgment requires review cannot be accepted as a matter which was never before the Court could not have been decided on assumptions. The Court cannot be said to have committed any mistake or error apparent on the face of the record which requires to be corrected.
14. The principles enunciated by the Apex Court for exercising powers under writ jurisdiction, it would go to show that no document or vakalatnama or any material were brought on record or any such assertions were made either in the writ petition or in the reply filed before the learned Single Judge that during the proceedings of the Letters Patent Appeal, the respondent was gainfully employed. These documents are filed much later and therefore after the judgment was pronounced, it could not be entertained in the Letters Patent Appeal and therefore, the review petition filed on the basis of some vakalatnama (vakalatpatra) could be entertained by this Court as they were not the subject matter in the writ petition. We do not find that any case is made out for reviewing the judgment under challenge.
15. One more submission was that this Court ought not to have or could not have equated the case of the applicant with other subsequent judges. That was only an illustration in the judgment to demonstrate that the punishment was harsh and therefore, submission is also rejected.
16. Therefore, this review application requires to be dismissed, and the same is accordingly dismissed.
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(V.M.SAHAI, J.)
(K.J.THAKER, J)
Ashish Tripathi
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