Rajasthan High Court - Jaipur
Rajasthan State Road Transport ... vs Dhanna Lal Jat S/O Shri Hari Narayan ... on 27 April, 2023
Author: Anoop Kumar Dhand
Bench: Anoop Kumar Dhand
[2023/RJJP/005893]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Review Petition (Writ) No. 89/2022
IN
S.B. Civil Writ Petition No. 12854/2017
1. Rajasthan State Road Transport Corporation, through its
Chairman Cum Managing Director, Head Office Parivahan
Marg, C-Scheme, Jaipur.
2. Financial Adviser, Rajasthan State Road Transport
Corporation, Head Office, Parivahan Marg, C-Scheme,
Jaipur.
3. Chief Manager, Jaipur Depot, Rajasthan State Road
Transport Corporation, District Jaipur.
----Petitioners
Versus
Dhanna Lal Jat S/o Shri Hari Narayan, Aged About 61 Years, R/o
Village Post Chosla, Tehsil Malpura, District Tonk (Raj.)
----Respondent
For Petitioner(s) : Mr. Rajpal Dhankhar
For Respondent(s) : Mr. Kailash Choudhary
HON'BLE MR. JUSTICE ANOOP KUMAR DHAND
Reserved on : 05/04/2023
Pronounced on : 27/04/2023
Reportable
Judgment
(1) This review petition has been submitted by Rajasthan
State Road Transport Corporation (for short 'RSRTC') seeking review of the order dated 1.12.2021 passed by this court by which the Petition filed by the writ petitioner therein (hereinafter referred as 'the respondent') has been allowed and the RSRTC has been directed to grant the respondent the benefits of GPF Scheme and GPF Pension w.e.f. the date of his retirement. (Downloaded on 11/11/2023 at 05:07:39 PM) [2023/RJJP/005893] (2 of 9) [WRW-89/2022] (2) Counsel for the review petitioner submits that the respondent was a member of CPF Scheme and an amount of from his salary was deducted under CPF Scheme. The respondent took loan from his CPF account and he received CPF amount of Rs. 8,31,722/- at the time of his retirement on 6.6.2017. But these facts were not brought to the notice of this court at the time of hearing of the writ petition. Hence, the order dated 1.12.2021 be recalled. In support of his contentions the counsel placed reliance on the following judgments :-
(i) State of Rajasthan & Another v. Surendra Mohnot & Others (2014) 14 SCC 77
(ii) Pepsu Road Transport Corporation, Patiala v. Amandeep Singh & Ors (2017) 2 SCC 766 (3) Per contra, the counsel for respondent opposed the arguments raised by the counsel for the petitioner and submitted that the petitioner was a member of GPF Scheme and amount was always deducted for GPF Account from the salary of the petitioner.
He further submits that these documents were not denied by the RSRTC in their reply. Counsel submits that Rs. 8,31,722/- were directly transferred into the savings bank account of the respondent at the time of his retirement and the respondent was never intimated that this amount pertains to Contributory Provident Fund. Counsel submits that the respondent is ready to return the aforesaid amount to the RSRTC. Counsel submits that there is no error apparent on the face of record of this case, hence interference of this court is not warranted. (Downloaded on 11/11/2023 at 05:07:39 PM) [2023/RJJP/005893] (3 of 9) [WRW-89/2022] (4) Heard and considered the submissions made by the rival sides.
(5) This court finds that after hearing the arguments of both sides, this court allowed the writ petition filed by the respondent vide order dated 1.12.2021 with the following observation and directions :-
"During the course of the arguments both the Counsel for the petitioner and the respondents relied upon the Notification dated 02.01.1990 and amended notification dated 15.06.1996 issued by the Department. A perusal of Notification dated 02.01.1990 makes it clear that employees were directed to furnish their option within a period of 90 days regarding their inclusion in the CPF or the GPF Scheme. It was also mentioned in the notification that if no option would be given by the employee, he would be deemed to be governed by the Pension Rules, 1989.
It is relevant to note that Clause-11 of the said notification specifically laid down that the Pension and GPF Scheme would be applicable only on the regular employees and would not be applicable on the daily- wagers, contractual employees and the temporary employees and therefore they were not entitled to furnish any option in terms of the notification.
In view of the said notification, it is clear on record that at the relevant time the petitioner was not entitled to furnish any option and therefore, did not give the same. As the services of the petitioner have been regularized on 23.03.1999 only, he could not have given option at the relevant time in terms of the notification dated 02.01.1990. Therefore, the argument of the respondents that the petitioner did not give his option at the relevant time is of no substance.
Clause-4 of the amended notification dated 15.06.1996 reads as under:
fnukad 1-4-89 ds i'pkr fu;fer osru J`a[kyk esa fu;qDr deZpkfj;ksa ds fodYi izLrqr djus dk vko';drk ugha gS D;ksafd mu ij Lor% gh isa'ku ;kstuk ykxw gSaA A perusal of the amended notification shows that the last date for giving option was fixed for 15.08.1996 which date is also a date prior to the date of regularization of the services of the petitioner. Therefore too, the petitioner could not have given his option at that particular point of time. Even if it is assumed that as the fixation of salary of petitioner had been made with effect from 08.05.1985, both the notifications will be applicable on him then too in view of the above mentioned Clause-4 of the notification dated 15.06.1996, the petitioner was not required to give any option.(Downloaded on 11/11/2023 at 05:07:39 PM)
[2023/RJJP/005893] (4 of 9) [WRW-89/2022] Further even if the argument of the respondents is accepted that petitioner was required to furnish his option then too, it is clear on record that on the very first date of information that is 09.12.2010, the petitioner had submitted his option of being included in the GPF Scheme in future too.
Viewed from any angle, the ground of the respondents that the petitioner was required to give his option which he failed to do therefore he would not be entitled to the GPF Pension Scheme cannot be held to be tenable. In support of his submissions regarding the deduction of GPF amount, the petitioner has placed on record his Last Pay Certificate and the pay certificate for the month of January 2011.
A perusal of both these documents shows that amount qua the GPF had been deducted from the salary of the petitioner and even a loan qua his GPF deposit had been sanctioned to him during his course of employment. The said documents have neither been denied nor any pleading of denial of the same has been made by the respondents in their reply. Therefore too, it can be concluded that the petitioner was a member of GPF Scheme from the inception of the services and cannot be transferred to the CPF Scheme arbitrarily in the year 2017, after his superannuation. The petitioner has also placed on record an Office Order pertaining to one similarly situated employee who has been directed to be allotted a GPF Account in place of CPF Account. No denial of the said document has also been made by the respondents and in the circumstances it would be deemed to be admitted that the person was similarly situated to the petitioner Therefore too, if the similarly situated person has been granted the benefit of GPF Pension Scheme, the petitioner cannot be declined the grant of the same. In view of the above observations, the writ petition of the petitioner is allowed. The respondents are directed to grant the petitioner the benefit of GPF Scheme and to grant the GPF Pension to the petitioner with effect from the date of his retirement."
(6) Once the Writ Petition filed by the respondent has been allowed after hearing the arguments of both sides, now review petition cannot be used as a tool for changing the opinion or view of the court. The review petition can be entertained only when there is an error apparent on the face of the record. It is not open for this court to re-appreciate the same facts again and reach to a different conclusion. Conclusion once arrived at after appreciating the facts and after hearing the rival sides, cannot be assailed in review petition unless it is shown that there is an error apparent (Downloaded on 11/11/2023 at 05:07:39 PM) [2023/RJJP/005893] (5 of 9) [WRW-89/2022] on the face of the record. In the present case the review petitioner has not been able to point out any error apparent on the face of the record, but on the contrary under the guise of the instant review petition, the petitioner is challenging the order passed by this court which is under review.
(7) A review cannot be claimed or asked for 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.
(8) In Smt. Meera Bhanja v. Smt. Nirmala Kumari Choudhury (1995) 1 SCC 170, it was held by the Hon'ble Apex Court in para 8 as under:-
"8. It is well-settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, C.P.C. In connection with, the limitation of the powers of the Court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma (1979) 4 SCC 389, speaking through Chinnappa Reddy, J., has made the following pertinent observations : (SCC p. 390, para 3) "It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the (Downloaded on 11/11/2023 at 05:07:39 PM) [2023/RJJP/005893] (6 of 9) [WRW-89/2022] province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court."
(9) It is also settled law that in exercise of review jurisdiction, the Court cannot reappreciate the evidence to arrive at a different conclusion even if two views are possible in a matter. In Kerala State Electricity Board v. Hitech Electrothermics & Hydropower Ltd. (2005) 6 SCC 651, Hon'ble Apex Court observed as follows:
"10. ....In a review petition it is not open to this Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise."
(10) After discussing a series of decisions on review jurisdiction in Kamlesh Verma v. Mayawati (2013) 8 SCC 337, Hon'ble Apex Court observed that review proceedings have to be strictly confined to the scope and ambit of Order XLVII Rule 1, CPC. As long as the point sought to be raised in the review application has already been dealt with and answered, parties are not entitled to challenge the impugned judgment only because an alternative view is possible. The principles for exercising review jurisdiction were succinctly summarized in the captioned case as below:
(Downloaded on 11/11/2023 at 05:07:39 PM)
[2023/RJJP/005893] (7 of 9) [WRW-89/2022] "20. Thus, in view of the 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 the record;
(iii) Any other sufficient reason.
The words "any other sufficient reason" has been interpreted in Chajju Ram v. Neki AIR 1922 PC 112, and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius 1955 SCR 520 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 v. Sandur Manganese & Iron Ores Ltd. (2013) 8 SCC 337.
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 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."
(11) In Ram Sahu (Dead) Through Lrs v. Vinod Kumar Rawat 2020 SCC OnLine SC 896, citing previous decisions and expounding on the scope and ambit of Section 114 read with Order XLVII Rule 1, the Hon'ble Apex Court has observed that Section 114 CPC does not lay any conditions precedent for (Downloaded on 11/11/2023 at 05:07:39 PM) [2023/RJJP/005893] (8 of 9) [WRW-89/2022] exercising the power of review; and nor does the Section prohibit the Court from exercising its power to review a decision. However, an order can be reviewed by the Court only on the grounds prescribed in Order XLVII Rule 1 CPC. The said power cannot be exercised as an inherent power and nor can appellate power be exercised in the guise of exercising the power of review.
(12) As can be seen from the above exposition of law, it has been consistently held by Hon'ble Apex Court in several judicial pronouncements that the Court's jurisdiction of review, is not the same as that of an appeal. A judgment can be open to review if there is a mistake or an error apparent on the face of the record, but an error that has to be detected by a process of reasoning, cannot be described as an error apparent on the face of the record for the Court to exercise its powers of review under Order XLVII Rule 1 CPC. In the guise of exercising powers of review, the Court can correct a mistake but not substitute the view taken earlier merely because there is a possibility of taking two views in a matter. A judgment may also be open to review when any new or important matter of evidence has emerged after passing of the judgment, subject to the condition that such evidence was not within the knowledge of the party seeking review or could not be produced by it when the order was made despite undertaking an exercise of due diligence. There is a clear distinction between an erroneous decision as against an error apparent on the face of the record. An erroneous decision can be corrected by the Superior Court, however an error apparent on the face of the record can only be corrected by exercising review jurisdiction.(Downloaded on 11/11/2023 at 05:07:39 PM)
[2023/RJJP/005893] (9 of 9) [WRW-89/2022] (13) The only new ground raised by the petitioner RSRTC is that the respondent has received the final amount of CPF amount i.e. Rs. 8,31,722/-, hence the respondent is not entitled to get pension under GPF Scheme. The other arguments have already been considered and taken into account at the time of disposal of the writ petition.
(14) It appears that amount of Rs. 8,31,722/- was directly transferred to the bank account of respondent at the time of his retirement without any information or sending any communication to the petitioner about the nature of such payment. The respondent is ready to refund this CPF amount to the petitioner RSRTC.
(15) The petitioner RSRTC has failed to make out any case of review of the order dated 1.12.2021. This court does not find any error on the face of the record to review the order. No case is made out to recall the order dated 1.12.2021. The judgments relied upon by the counsel for the petitioner are not applicable under the peculiar facts and circumstances of this case. (16) In the light of above discussion and considering the statement of the counsel for the respondent, the respondent is directed to refund the amount of Rs. 8,31,722/- to the petitioner RSRTC with interest @ 9% per annum within three months from today.
(17) With the aforesaid, the review petition along with the stay application, stands disposed of.
(ANOOP KUMAR DHAND), J.
.db/-
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