Orissa High Court
Food Corporation Of India And Others vs Debendra Ram on 27 February, 2017
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
RVWPET No. 202 of 2015
In the matter of an application under Order XLVII Rule 1,
CPC for review of order dated 27.02.2015 passed in OJC
No.3706 of 2000.
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Food Corporation of India
and others ...... Petitioners
-Versus-
Debendra Ram ....... Opp. party
For Petitioners: M/s. A.N. Routray & M. Routray,
Advocates.
For Opp.Party: M/s. Janmejaya Katikia,
A. Mohanty, S. Swain, D. Jena &
B. Mishra, Advocates
PRESENT :
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Decided on 27.02.2017
DR. B.R.SARANGI, J.The writ petitioner, opposite party herein, was engaged as an Ancillary Worker under Food 2 Corporation of India (FCI) F.S. Depot, Dhenkanal, pursuant to which he joined on 06.07.1992. Accordingly an Identity Card was issued by the District Manager of the Corporation registering him an Ancillary Worker having registration no.
182. He was also enrolled as a member of a registered trade union. He was critically ill and was advised complete bed rest and medical certificate in support of his illness was produced. After he was found fit, a joining report was submitted on 10.06.1999, but the same was not accepted. Consequentially, he made representation on 28.06.1999 to allow him to discharge his duty as before and he was directed to resume duty. But when he went to join on 22.11.1999, his joining was refused. Thereafter he submitted his jointing report on 26.11.1999 by registered post with A.D. Since no action was taken, he approached this Court by filing OJC No. 3706 of 2000. In the said writ petition it was contended that, non-allowing the writ petitioner to join or resume the duty, would amount to termination, which was in gross violation of the provisions of the Industrial Disputes Act, as well as principles of natural justice. Pursuant to notice issued on 25.08.2000, 3 learned counsel for opposite parties entered appearance by filing vakalatnama, but did not choose to file counter affidavit to rebut the contention raised in the writ petition. Therefore, after long lapse of 15 years, when the matter was heard by this Court, in absence of any counter, applying the doctrine of non-traverse, this Court allowed the writ application by judgment dated 27.02.2015 by holding that non-acceptance of the joining report of the writ petitioner by the authority was arbitrary, unreasonable and contrary to the provisions of Industrial Disputes Act, as well as violative of principles of natural justice and the petitioner would be deemed to be continuing in service with effect from his date of joining, i.e., 22.11.1999 and would be entitled to get all consequential benefits admissible in accordance with law.
2. Against the said judgment dated 27.02.2015, the review petitioners, who were the opposite parties in the writ application, filed Writ Appeal No. 164 of 2015 and a Division Bench of this Court disposed of the said writ appeal by passing the following order :
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"The pleadings made in the writ appeal as well as the submissions made before this Court appears to be not available before the leaned Single Judge for consideration even though the matter was pending for 15 years in this Court. The learned Single Judge has passed the judgment based on the materials available on record. The materials produced in support of the appellants also appear to have been procured after the disposal of the writ petition and thus was not available for consideration of the learned Single Judge.
Under the circumstances, we don't find any illegality in the impugned judgment passed by the learned Single Judge."
The Division Bench of this Court, as did not find any illegality in the judgment passed by the learned Single Judge, was declined to entertain the writ appeal and by order dated 22.09.2015 dismissed the same summarily, but, however, made an observation that it would be open for the appellant therein (review petitioners) to file an appropriate application for review of the judgment before the learned Single Judge. In view of the observation made in order dated 22.09.2015 passed in the writ appeal, the review petitioner has filed this application on 02.11.2015 for review of the judgment dated 27.02.2015 passed in OJC No. 3706 of 2000.
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3. The Review application has been filed at a belated stage on expiry of 336 days. Excluding the limitation period of 30 days, the delay of 306 days has been caused in preferring the review application. Therefore, a miscellaneous application (Misc. Case No. 207 of 2015) has been filed under Section 5 of the Limitation Act to condone the delay of 306 days caused in preferring the review application. The grounds for condonation of delay have been set forth in paragraphs 2 to 4 of the said application, which are as follows:
"2. That after obtaining the copy of the order, the matter was examined and advised of the conducting lawyer Sri S.K. Nayak, Senior Advocate Writ Appeal No. 164/2015 was filed on 26.3.2015 before this Hon'ble Court, the Hon'ble Court in order dtd. 22.09.2015 disposed of the Writ Appeal with the observation that it would be open for the appellants to file an appropriate application for review of the judgment before the leaned Single Judge.
3. That after disposal of the Writ Appeal with liberty to file a review application on 22.09.2015. Hence the Civil Review petition is being filed. Therefore, the period during which the writ appeal was pending from 26.3.2015 to 22.09.2015 may be condoned.
4. That after obtaining the certified copy of the order dtd. 22.09.2015 on 26.09.2015, again opinion was obtained from the conducting lawyer Sri S.K. Nayak, Senior Advocate. The Civil Review petition is being filed after 6 observing necessary paraphernalia. There was some delay due to Dasahara Holidays also."
4. This Court issued notice in the misc. case on the question of limitation to the opposite party, and as such, the opposite party entered appearance by filing vakalatnama and also filed objection to the misc. case for condonation of delay. Paragraphs-5 to 7 of the objection are reproduced below.
"5. That it is submitted on behalf of the present opposite party that while filing of the petition for condonation of delay, the petitioner- corporation has nowhere stated anything about the steps taken from the date of disposal of the OJC No. 3706 of 2000 dated 27.02.2015 till filing of the writ appeal on 26.03.2015. So, in absence of the said explanation, the present petition for condonation of delay deserves no merit and liable to be dismissed.
6. That, it is out of place to mention here that condonation of delay is due to pendency of any petition in any court including this Hon'ble Court may be a ground to condone the delay in filing of any petition but the same should have filed with a bonafide belief but not due to deliberate and any other reason. But even though before filing of writ appeal, the petitioner-corporation immediately should have opted to file a review just after disposal of the OJC No. 27.02.2015. But before taking recourse to file review challenging the legality and propriety of the order in the writ appeal and after being unsuccessful in the writ appeal, filing of present review petition as well as the delay condonation petition deserves no merit and liable to be dismissed in the interest of justice.
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7. That, so far the delay in filing of the review petition is concerned, there is no altogether 306 days delay in filing the review petition, but nowhere the petitioner-corporation have sufficiently explained about the delay of filing of review after 306 days, but the real intention of the corporation in filing of the review only to nullify the order dated 27.02.2015 passed by this Hon'ble Court and to harass the present opposite party."
5. Mr. A.N. Routray, learned counsel for the review petitioners states that, the delay caused in preferring the review application, having been sufficiently explained, may be condoned and this Court may review the judgment dated 27.02.2015 passed in OJC No.3706 of 2000.
6. From the above pleadings of the parties, so far as codonation of delay application filed under Section 5 of the Limitation Act is concerned, this Court finds that the reasons ascribed to condone the delay do not justify the "sufficient cause", inasmuch it clearly indicates that there was bureaucratic movement of the file. This Court considered the similar question in State of Orissa v. Bishnupriya Routray, 2014 (II) ILR-CUT-847 and, relying upon judgments of the apex Court in Collector (LA) v. Mst. Katiji, AIR 1987 SC 1353; N. Balakrishnan v. M. 8 Krishnamurthy, AIR 1998 SC 3222; P.K. Ramachandran v. State of Kerala, AIR 1998 SC 2276; Vedabai v. Shantaram Baburao Patil, AIR 2001 SC 2582; State of Nagaland v. Lipok Ao, AIR 2005 SC 2191; Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, 2012 (5) SCC 157; Amalendu Kumar Bera v. State of West Bengal, 2013 (4) SCC 52 and Office of the Chief Post Master General v. Living Media India Ltd., 2012 AIR SCW 1812, held that the application for condonation of delay did not bear any explanation indicating "sufficient cause" much less reasonable explanation, hence there was no scope to entertain the said prayer for condonation of delay, and dismissed the application filed under Section 5 of the Limitation Act. Applying the same principle to this case, this Court is of the considered view that no case is made out indicating "sufficient cause" for condonation of delay. Accordingly, this Court is not inclined to condone the delay caused in preferring the review application at a belated stage. Hence, the application is dismissed for want of "sufficient cause". 9
7. As has already been stated that against the judgment dated 27.02.2015 passed by the learned Single Judge, writ appeal was preferred before the Division Bench, which has been dismissed summarily. Merely because an observation was made, while dismissing the writ appeal, that it would be open for the appellants (review petitioners) to file an appropriate application for review of the judgment before the learned Single Judge, that by itself would, neither accrue any right upon the review petitioners to review the judgment of the learned Single Judge which has already been confirmed by dismissing the writ appeal by the Division Bench, nor enure any benefit to them. The review petitioners, being mighty employer cannot take advantage of their position to cause harassment to a poor employee in different manner, as they like, by shuttling the poor opposite party worker from one Court to other without filing counter affidavit in appropriate time for just and proper adjudication of the case by the Court, which amounts to clear abuse of the process of the Court, and this Court would not be inclined to encourage an employer to do so. Rather the employer 10 must discharge its duty as a model employer so as to extend benefits to its employees which is due and required to be done under the law.
8. In Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909 the apex Court pointed out that there is nothing in Article 226 of the Constitution to preclude a 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 definite limitations to the exercise of the power of review. The same could be exercised on the discovery of new and important matters 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 also be exercised where some mistake or error apparent on the face of the record was found, or on any analogous ground. But it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal and the power of 11 review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court.
9. Applying the said analogy to the present context, it appears at the outset that even though the opposite parties in the writ petition-cum-review petitioners had entered appearance, did not choose to file any counter affidavit to rebut the contention raised by the writ petitioner-opposite party. Therefore, applying the doctrine of non-traverse the writ petition was allowed in favour of the worker-opposite party and against the said order the employer-review petitioners preferred writ appeal, which was dismissed summarily. On the basis of certain observation, the review petitioners preferred this review application on the plea that certain documents have been obtained subsequently. Therefore, this review application has been filed. But, the limitation, which has been discussed above, in exercise of the power of review does not contemplate so, that on discovery of certain documents subsequently a review application can be filed so as to 12 make re-hearing or a fresh decision in the case. The limitation underlying in Order XLVII Rule 1, CPC, principle of which is also applicable to review the order under Article 226 of the Constitution of India. This principle has been laid down by the apex Court in A.T. Sharma v. A./P. Sharma, AIR 1979 SC 1047 and Meera Bhanja v. Nirmala Kumari Choudhury, AIR 1995 SC 455.
10. In Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845 the apex Court held that the normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.
11. In Chandra Kanta v. Sheikh Habib, AIR 1975 SC 1500, the apex Court held as follows:
"In a civil proceeding, an application for review is entertained only on a ground mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure and in a criminal proceeding on the ground of an error apparent on the face of the record. (Order XL, Rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond 13 dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility."
12. In view of the aforesaid facts and circumstances, this Court is of the considered view that the review petitioners have approached this Court at a belated stage and no "sufficient cause" has been shown, and otherwise also on merits the petitioners' case does fall within the parameters of Order XLVII Rule 1, CPC read with Article 226 of the Constitution of India, and in view of the law laid down by the apex Court discussed above, the review application is dismissed on merits as well as on the ground of limitation.
Sd/-
Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack The 27th February, 2017/Ajaya/GDS True copy Secretary