Madhya Pradesh High Court
Rajendra Kumar Neekhra vs The State Of Madhya Pradesh on 21 January, 2022
Author: Anand Pathak
Bench: Anand Pathak
1 R.P.No. 397/2021
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
PRESENT
ANAND PATHAK & G.S.Ahluwalia, JJ.
( R.P.No. 397/2021 )
Rajendra Kumar Neekhra
Versus
State of M.P. & Ors.
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Shri Siddhartha Sharma, learned counsel for the petitioner.
Shri Deepak Khot, learned GA for respondents No. 1 to 3/State.
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ORDER
(Passed on this 21st Day of January, 2022) Anand Pathak, J.
Present review petition has been preferred by the petitioner seeking review of order dated 26/3/2021 passed by this Court (coordinate Bench comprising of Hon'ble Shri Justice Sheel Nagu and Justice Anand Pathak, J); whereby, Writ Petition preferred by petitioner vide W.P.No. 2999/2021 assailing the order dated 29/1/2021 by which the petitioner was debarred under Clause 4.5
(d), 1.13, 3.4(b) and 3.4 (g) of the consultancy agreement, from further employer's work for period of one year, has been dismissed.
2. Learned counsel for the petitioner in the case in hand raised 2 R.P.No. 397/2021 two grounds, first, the error apparent on the face of record as is evident from the fact that petitioner was not a party to the agreement executed between the Public Works Department and M/s Theme Engineering Services Pvt. Ltc., Jaipur and has been relegated to avail the arbitration remedy under the contract, which is not permissible in the eyes of law. Secondly, existence of new material which was not available at the time when the original order in writ petition was passed. He referred the order dated 30/3/2021 passed by Principal Secretary, Government of Madhya Pradesh, Public Works Department in which the representation preferred by the employer M/s. Theme Engineering has been rejected. The said representation was heard and decided in pursuance to the direction given in order dated 27/2/2021 decided at Principal Seat, Jabalpur.
3. Based upon the said decision in which some observations as alleged by petitioner have been made in respect of petitioner which according to him are bona fide and indicates the innocence of petitioner, therefore, he seeks parity vis-a-vis said order to demonstrate his innocence before the same authority, given a chance. Arbitration is a remedy which is not available to him. He relied upon Gopal Singh Vs. State Cadre Forest Officers' Association, (2007) 9 SCC 369, Chhajju Ram Vs. Neki and Ors., AIR 1922 PC 112, S.Nagraj and Ors. Vs. State of Karnataka and Anr., 1993 Supp. (4) SCC 595 and Oriental Insurance Co. Ltd. And Anr. Vs. Gokulprasad Maniklal Agarwal and Anr., (1999) 7 SCC 578.
3 R.P.No. 397/2021
4. Counsel for the State opposed the prayer and while supporting the impugned order submits that no case for interference is made out.
5. Heard.
6. In the instant case, petitioner takes exception to the order dated 26/3/2021 under review jurisdiction on the ground of order dated 30/3/2021 in which Principal Secretary, Public Works Department considered the representation preferred by M/s Theme Engineering i.e. employer of the petitioner as per order dated 27/2/2021 passed by coordinate Bench at Principal Seat Jabalpur in W.P.No. 2833/2021) and made some observations in respect of conduct of petitioner.
7. In the case of Kamlesh Verma Vs. Mayawati and Others, (2013) 8 SCC 320, principles relating to review jurisdiction have been laid down. The principles relating to review jurisdiction may be summarized as follows:
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" have been interpreted in Chhajju Ram Vs. Neki, (1921-22) 49 IA 144 and approved by this Court in the case of Moran Mar 4 R.P.No. 397/2021 Basselios Catholicos Vs. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 to mean "a reason sufficient on grounds at least analogous to those specified in the rule".
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 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 reheard and corrected but lies only for patent error.
(vi) The meres 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) Reviews is not maintainable when the same relief sought at the time of arguing the main matter had 5 R.P.No. 397/2021 been negatived."
8. It is also held by the Apex Court in the case of State Of West Bengal & Ors. Vs. Kamal Sengupta & Anr., (2008) 8 SCC 612 that mistake or error apparent on the face of the record means that mistake or error which is prima facie visible and does not require any detail examination. Erroneous view of law is not a ground for review and review cannot partake the category of the appeal.
9. Testing this legal position with juxtaposition of facts of present case, then it appears that prima facie no error is found apparent on the fact of record. Opportunity of hearing was apparently provided to the employer of the petitioner and petitioner knew the pendency of proceedings well because company intimated the petitioner about show cause notice issued by the State Government which is evident from the reply submitted by the petitioner to the company on 27/12/2021 and same was part of record of writ petition also.
10. So far as, new facts in respect of consideration of representation and order dated 30/3/2021 is concerned, it refers conduct of petitioner but in the case of company M/s Theme Engineering, therefore, although it does not give a justifiable cause for the petitioner to move review petition but looking to the facts and circumstances of the case, order dated 26/3/2021 passed by writ Court can be modified to the extent that petitioner can avail the remedy of settlement/arbitration clause as well as to prefer representation before the Principal Secretary, PWD, who 6 R.P.No. 397/2021 shall consider the same on the basis of different clauses under the bid document and consultancy agreement and pass a reasoned order either way in accordance with law as expeditiously as possible preferable within three months from the date of submission of representation.
11. Review petition stands disposed of accordingly.
(Anand Pathak) (G.S.Ahluwalia)
Judge Judge
jps/-
JAI Digitally signed by JAI PRAKASH SOLANKI
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH PRAKASH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=287738d30aabaeda9b10cecdf179cec865c7633f4cfb9 e38ce14fcbb05b9522a, pseudonym=560BC50AD082B9BE54EE290EC8CB2193780D835 7, SOLANKI serialNumber=8D6BC1C9FCE36623D0BD6B8072A2D8C01433E BD48AE4F609F108CA8F8DE6B522, cn=JAI PRAKASH SOLANKI Date: 2022.02.01 16:50:15 +05'30'