Himachal Pradesh High Court
Mansa Ram Sharma And Others vs Dr. Y.S. Parmar University Of ... on 30 October, 2020
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Review Petition No. 40 of 2020.
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Date of decision: 30.10.2020 Mansa Ram Sharma and others Petitioners Versus Dr. Y.S. Parmar University of Horticulture & Forestry, Nauni and others. ..Respondents.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ? 1 No For the Petitioners : Mr. Prem P. Chauhan, Advocate, through Video Conferencing.
For the Respondents : Mr. Avinash Jaryal, Advocate, for respondent No.1, through Video Conferencing.
Mr. Ashok Sharma, Advocate General with Mr. Vinod Thakur, Addl. A.G., Mr. Bhupinder Thakur and Ms. Seema Sharma, Dy. A.Gs., for respondents No. 2 and 3.
Tarlok Singh Chauhan, Judge ( Oral ) By way of this review petition, the petitioners have sought limited review of the judgment rendered by this Court on 05.08.2020 in CWPOA No. 4666 of 2019.
1Whether reporters of Local Papers may be allowed to see the Judgment ?
::: Downloaded on - 02/11/2020 20:18:19 :::HCHP 22. However, before proceeding to consider the petition on merits, it would be necessary to delineate the .
scope and ambit of the review petition.
3. This task appears to have been made easy to this Court by the judgment rendered by learned Division Bench of this Court in Chet Ram & another: Gram Panchayat Thunag vs. State of Himachal Pradesh and others, Civil Review No. 7 of 2018 (in CWP No. 2135 of 2016), decided on 17.7.2018, wherein it was held as under:-
"20. The principles, on which "any person"
"aggrieved from a decree or order", can seek review thereof, is now well settled. It has to be on the basis of statutory right under Order 47 Rule 1 and that being discovery of a new and important matter or evidence, which after exercise of due diligence was not within the knowledge or could be produced at the time of passing of the order, on account of (a) some mistake or error apparent on the face of record; or (b) for any other sufficient reason.
21. These principles can be culled out as under:
(A) Source
(i) The Court of review has only limited jurisdiction circumscribed by the definitive limits fixed by the language used in Order 47 Rule 1 of the Code of ::: Downloaded on - 02/11/2020 20:18:19 :::HCHP 3 Civil Procedure. {Moran Mar Basselios Catholicos & another v. Most Rev. Mar Poulose Athanasius & others, AIR 1954 SC 526 (Para-32) (Three-Judge .
Bench}.
(ii) Review proceedings are not by way of an appeal.
{Meera Bhanja (Smt.) v. Nirmala Kumari Choudhury (Smt.), (1995) 1 SCC 170 (Para-8) (Two-Judge Bench)}.
(iii) Review is a creation of statute. { Patel Narshi Thakershi & others v. Shri Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844 (Three-Judge Bench); and Lily Thomas v. Union of India, (2000) r 6 SCC 224 (Para-52) (Two-Judge Bench) (Para-
52)}.
(B) Grounds
(iv) Review is permissible only when circumstances of "substantial and compelling character" make it necessary to do so. {Sajjan Singh & others v. State of Rajasthan & others, AIR 1965 SC 845 (Para-21) (Five-Judge Bench); Lily Thomas (supra);
{M/s Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, (1980) 2 SCC 167 (Para-8) (Three-Judge Bench)}.
(v) Review is permissible only where there is glaring omission and patent mistake and like grave error has crept in by judicial fallibility. {Northern India Caterers (supra) (Para-8)}.
(vi) Error apparent on the face of record has to be decided on the facts of each case, for an erroneous decision, by itself, does not warrant ::: Downloaded on - 02/11/2020 20:18:19 :::HCHP 4 review. {Akhilesh Yadav v. Vishwanath Chaturvedi & others, (2013) 2 SCC 1 (Para-1) (Two-Judge Bench); and Dr. Subramanian Swamy v. State of .
Tamil Nadu and others, (2014) 5 SCC 75 (Para-52) (Two-Judge Bench)}.
(vii) Error apparent is not 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. {( Lily Thomas (supra) (Para-58)}.
(C) Error/Mistake
(viii) In Hari Vishnu Kamath v. Ahmad Ishaque & others, AIR 1955 SC 233 (Seven-Judge Bench), the Court expounded as to what can be an "error of law", "apparent on the face of record", in the following terms (Para-23):
"that no error could be said to be apparent on the face of the record if it was not self-evident, and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self -evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case." (Emphasis supplied) ::: Downloaded on - 02/11/2020 20:18:19 :::HCHP 5
(ix) "Mistake apparent form the record" is different from "an error apparent on the face of record".
{(ITO v. Ashok Textiles Ltd., AIR 1961 SC 699) .
(Three-Judge Bench)}.
(x) The 'mistake apparent on the face of record' must be obvious and patent. It must not be such, which can be established by long-drawn process of reasoning. {T.S. Balaram v. Volkart Bros, (1971) 2 SCC 526 (Para-5) (Two-Judge Bench)}. Such mistake should be "quite obvious" { Commissioner of Central Excise, Balapur, Mumbai v. RDC Concrete (India) Private Limited, (2011) 12 SCC r 166 (Para-21) (Two-Judge Bench)}.
(xi) There is a difference between a mere erroneous decision and a decision which could be characterized as vitiated by 'error apparent'. { Sasi (Dead) through Legal Representatives v.
Aravindakshan Nair & others, (2017) 4 SCC 692 (Two-Judge Bench)}.
(D) Sufficient Reason
(xii) "Any other sufficient reason" must mean a reason sufficient on grounds, at least analogous to those specified in the Rule. {Moran Mar Basselios Catholicos (supra) (Para-32)}.
(xiii) Non-existence of a fact, leading to passing of an order, resulting into miscarriage of justice, is a reason sufficient enough for reviewing the same. {(Lily Thomas (supra)}.
(xiv) "Sufficient reason" would include misconception of fact or law by a Court or even an advocate.
::: Downloaded on - 02/11/2020 20:18:19 :::HCHP 6{Board of Control for Cricket in India & another v. Netaji Cricket Club & others, (2005) 4 SCC 741 (Para-90) (Two-Judge Bench)}.
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(E) Power
(xv) While rectifying a mistake, an erroneous view of law or a debatable point cannot be decided. So also, incorrect application of law can also not be corrected. {ITO v. Ashok Textiles Ltd., AIR 1961 SC
699) (Three-Judge Bench}.
(xvi) Discovery of new material to be considered with great caution and order or review should not be granted very lightly. {Dr. Somayajulu, Secretary v. r Attili Appala Swamy and others, 2015) 2 SCC 390) (Para-20) (Three-Judge Bench)}. In a review petition, Court is not to reappreciate the evidence and reach at a different conclusion, even if it is so possible. {Kerala SEB v. Hitech Electrothermics & Hydropower Ltd., (2005) 6 SCC 651 (Para-10) (Two-Judge Bench)}.
(xvii) Review is not rehearing of original matter. {Jain Studios Ltd. v. Shin Satellite Public Co. Ltd., (2006) 5 SCC 501 (Para-11) (Single-Judge)(Chamber Judge)}.
22. We notice that the aforesaid principles also stand crystallized by the Apex court in Kamlesh Verma v. Mayawati & others, (2013) 8 SCC 320, as under:
"20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:::: Downloaded on - 02/11/2020 20:18:19 :::HCHP 7
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 Chhajju Ram vs. Neki, 1922 AIR(PC) 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors., 1955 1 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 vs. Sandur Manganese & Iron Ores Ltd. & Ors., (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.::: Downloaded on - 02/11/2020 20:18:19 :::HCHP 8
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
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(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."
23. The aforesaid principles stand laid down, in the backdrop of different legislations.
24. However, we are of the considered view that in exercise of our power under Article 226 of the Constitution of India, nothing precludes us 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 (Para-8). {( Shivdeo Singh & others v. State of Punjab & others, AIR 1963 SC 1909 (Five-Judge Bench)}.
25. We may not be misunderstood to mean that the principles culled out (supra), are not required to be adhered to. Definitely, exercise of power, under Article 226 of the Constitution, must be within the principles so enunciated {Usha Bhakti v. State of Uttar Pradesh & others, (2014) 7 SCC 663 (Two- Judge Bench)}, but then, what is important and significant is as to whether the judgment, subject matter of review, inter alia, has resulted into miscarriage of justice or not."
::: Downloaded on - 02/11/2020 20:18:19 :::HCHP 94. Now, adverting to the facts, it would be noticed that the petitioners have filed CWPOA No. 4666 of 2019 titled .
Mansa Ram Sharma and others vs. Dr. Y.S. Parmar University of Horticulture & Forestry and others, praying therein for the following reliefs:
"(a) Quash the impugned orders dated 27.11.2012 (Annexure A-7), 5.03.2014 (Annexure A-8) and 18.11.2015 (Annexure A-9) being arbitrary, malafide and illegal.
(b) Direct the respondent-University to implement the notification issued by the H.P. Government on 23.04.2012 (Annexure A-4) and 23.02.2013 (Annexure A-5) for the grant of Secretariat Pay w.e.f. 01.12.2011 and Special Pay w.e.f.
01.03.2013, respectively to the applicants alongwith arrears thereof with interest thereon @ 18% p.a."
5. This petition was ordered to be heard alongwith CWPOA No. 122 of 2019, titled Anant Ram and others vs. Dr. Y.P. Parmar University of Horticulture and Forestry, Nauni and others, decided on 5th August, 2020. The petition filed by Anant Ram and others pertained only to the category of ::: Downloaded on - 02/11/2020 20:18:19 :::HCHP 10 drivers and they were entitled only for Secretariat Pay alongwith the petitioners in the present petition.
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6. However, as regards the petitioners therein, they belong to the category of Ministerial Staff (Personal Staff) and besides Secretariat Pay, they were also entitled to Special Pay at par with the employees of the Secretariat in terms of the notification dated 23.02.2013 (Annexure A-5). But inadvertently, it appears that this relief had not been granted to them despite observations made to this effect in paras 4, 5, 6, 8, 9, 10 and 13 of the judgment.
7. For the reasons stated above, I find sufficient ground to review the judgment dated 05.08.2020 passed in CWPOA No.4666 of 2019 and modified to the extent that the petitioners in addition to what has been granted to them vide judgment in CWPOA No.4666 of 2019, shall also be entitled for the Special Pay w.e.f. 01.03.2013 alongwith arrears and interest thereupon at the rate of 12% per annum.
8. Review petition is disposed of in the aforesaid terms, so also the pending application(s), if any.
30 th August, 2020 (Tarlok Singh Chauhan),
(GR) Judge
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