Madhya Pradesh High Court
A Vtec Limited vs A Vtec And Hindustan Motors Shramik ... on 4 August, 2022
Author: Subodh Abhyankar
Bench: Pranay Verma, Subodh Abhyankar
RP No.345/2022
1
High Court of Madhya Pradesh, Jabalpur
Bench at Indore
D.B.: Hon'ble Shri Subodh Abhyankar
Hon'ble Shri Pranay Verma, JJ.
ON THE 4TH OF AUGUST, 2022
Review Petition No.345/2022
Between: -
AVTEC Limited,
Sector-3, Pithampur, District Dhar (MP),
Through: Factory Manager
.....REVIEW PETITIONER
(By Mr. Jamshed P. Cama, learned Senior Counsel
along with Mr. Girish Patwardhan, Senior Counsel &
Ms. Kirti Patwardhan, Advocate)
AND
President / General Secretary,
AVTEC & Hindustan Motors Shramik Sangh,
Address: BM 510, Housing Board Colony,
Pithampur, District Dhar (MP)
Raghunath S/o Jhabburao,
Address: 250, Jawahar Nagar, CAT Road,
Rajendra Nagar, Indore, District Indore (MP)
(Respondent No.1 by Mr. Piyush Mathur, learned Senior Counsel
along with Mr. Shashank Sharma, Advocate)
.....RESPONDENTS
..............................................................................................................................
Reserved on: - 15.07.2022
Delivered on: - 04.08.2022
..............................................................................................................................
This REVIEW PETITION coming on for orders this day, the
court passed the following:
ORDER
Per Subodh Abhyankar, J.
Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 04-08-2022 18:37:51 RP No.345/2022 2This review petition has been filed by the review petitioner / AVTEC Limited under Order 47 Rule 1 of the Code of Civil Procedure, 1908 for review of the order passed by this Court on 27.10.2021, in Miscellaneous Petition No.2145/2020 and Miscellaneous Petition No.2357/2020, whereby the application (s) filed by the review petitioner seeking recall of an earlier order dated 18.11.2020 has been rejected.
2. Vide the aforesaid order dated 18.11.2020, the appellant was directed to comply with the provisions of Section 17- B of the Industrial Disputes Act, 1947 (herein after referred to as the Act), and the application filed for the recall of the same was dismissed vide order dated 27.10.2020, which is under review in this petition. Against the order dated 27.10.2020, the petitioner herein had also preferred a Special Leave to Appeal (C) No(s).920/2022, before the Supreme Court, who vide its order dated 31.01.2022 has dismissed it by a one line order, i.e.,"The special leave petition is dismissed.".
3. On the other hand, a preliminary objection has been raised by the respondents regarding maintainability of the review petition on the ground, that firstly, it is a second review petition, which is not maintainable; and secondly, the order passed by this Court on 27.10.2021 has also merged in the order passed by the Supreme Court in SLP No.920/2022; and as such, this review petition is liable to be dismissed on this ground also, i.e., on the ground of doctrine of 'merger'; and reviewing the earlier order Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 04-08-2022 18:37:51 RP No.345/2022 3 passed by this Court would literally amount to review of the order passed by the Supreme Court which would be interfering in the order passed by the Supreme Court.
4. Shri Jamshed P. Cama, learned Senior Counsel appearing for the petitioner along with Shri Girish Patwardhan, learned Senior Counsel and Ms. Kirti Patwardhan, learned counsel for the review petitioner has vehemently argued before this Court; and it is submitted that before the Supreme Court, the SLP of the petitioner was dismissed by a one line order only; and it was a dismissal in limine; and as such, has no consequences.
5. The attention of this Court has also been drawn to the decision rendered by the Supreme Court to submit that if the SLP of the petitioner has been dismissed, without adverting to the merits of the case, the party still has a right to apply for review of the order, which was challenged in the Supreme Court. In this regard, Shri Jamshed P. Cama, learned Senior Counsel has invited the attention of this Court to the decision rendered by the Supreme Court in the case of Green View Tea & Industries vs. Collector, Golaghat, Assam and another reported as (2004) 4 SCC 122, wherein it is also held that the scope of Order 47 Rule 1 of CPC is not limited, but in case where the Court finds it appropriate, it is the duty of the court to rectify, revise and recall its order as and when it is brought to its notice. Reliance has also been placed on the following decisions: -
(1) Management of Karur Vysya Bank Limited Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 04-08-2022 18:37:51 RP No.345/2022 4 v. B. Balakrishnan reported as (2016) 12 SCC 12 (para 2);
(2) Green View Tea & Industries v. Collector Golaghat, Assam & another reported as (2004) 4 SCC 122 (para 14);
(3) Managing Director, North-East Karnataka
Road Transport Corporation v.
Shivsharanappa reported as (2017) 16 SCC 540;
(4) Bharat Forge Company Limited v. A.B.
Zodge & another reported as (1996) 4 SCC
374 (para 7);
(5) John D'Souza v. Karnataka State Road
Transport Corporation reported as (2019) 18 SCC 47 (para 30);
(6) S. Nagaraj & others v. State of Karnataka & another reported as 1993 Supp. (4) SCC 595 (para 18);
(7) National Housing Cooperative Society Limited v. State of Rajasthan & others reported as (2005) 12 SCC 149;
(8) Hiran Mayee Bhattacharyya v. Secretary, S.M. School For Girls & others reported as (2002) 10 SCC 293;
(9) Kunhayammed and others v. The State of Kerala & another reported as (2000) 6 SCC 359 (para 44) (10) Haryana Urban Development Authority v.
Devi Dayal reported as (2002) 3 SCC 473;
(11) Jaipur Zila Sahakari Bhoomi Vikas Bank Limited v. Ram Gopal Sharma & others reported as (2002) 2 SCC 244 (para 12);
(12) Order dated 30.03.2022 of a Division Bench of this Court in the case of PEB Steel Lloyd (India) Limited through its Authorized Signatory Narendra Kumar v. Nitin Sonwane S/o Shri Ahsok Sonwane in Writ Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 04-08-2022 18:37:51 RP No.345/2022 5 Petition No.1080/2022;
(13) North East Karnataka Road Transport Corporation v. M. Nagangouda in Civil Appeal No.129/2007 (arising out of SLP (C) No.24222/2005) dated 09.01.2007.
6. Shri Piyush Mathur, learned Senior Counsel appearing along with Shri Shashank Sharma, learned counsel for the respondents, on the other hand, has submitted that even though it is a one line order, but considering the fact that the same Senior Counsel had represented the petitioner before the Supreme Court also and it can be very well presumed that all the arguments raised by him before this Court while the order under review dated 27.10.2021 was passed, were also raised before the Supreme Court and the Supreme Court did not find force in the contentions raised by Senior Counsel, which led to dismissal of the SLP at the threshold. Thus, it is submitted that even though it is only one line order, it cannot be said that it is a dismissal in limine.
7. Heard learned counsel for the parties and perused the record.
8. From the record, it is apparent that by way of the present review petition, the review petitioner seeks to review the order passed by this Court in Miscellaneous Petition No.2145/2020 dated 27.10.2021. The aforesaid order came to be passed on IA No.1650/2021 and IA No.1651/2021, applications seeking recall of order dated 18.11.2020.
Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 04-08-2022 18:37:51 RP No.345/2022 69. The aforesaid order dated 18.11.2020 passed by this Court in the aforesaid MP No.2145/2020 reads, as under: -
"An interlocutory application has been filed for compliance of Section 17-B of the I.D. Act. Ms. Kirti Patwardhan, learned counsel for the petitioner prays for three weeks time to seek instructions in the matter and to report compliance.
List on 18.01.2021.
Interim relief to continue, subject to compliance of Section 17-B of the I.D. Act."
(Emphasis supplied)
10. It is also found that the aforesaid interlocutory applications, IA No.1650/2021 and IA No.1651/2021, were dismissed by this Court by a detail order dealing in depth with the submissions advanced by the learned Senior Counsel appearing for the petitioner in the aforesaid applications. It is also not in dispute that the aforesaid order passed by this Court on 27.10.2021, was also challenged by the petitioner in the Supreme Court by filing Special Leave to Appeal (C) No(s).920/2022 which also came to be dismissed by the Supreme Court on 31.01.2022 by a one line order.
11. Although, learned Senior Counsel appearing for the petitioner has vehemently argued before this Court that even if the SLP is dismissed by the Supreme Court, it has still not been dismissed on merits; and thus, it is open for the petitioner to agitate before this Court, the errors which are apparent on the face of record in the earlier order passed by this Court on 27.10.2021.
12. On careful perusal of the documents filed on record, Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 04-08-2022 18:37:51 RP No.345/2022 7 including the orders passed by this Court on 18.11.2020, as also order dated 27.10.2021, this Court is of the considered opinion that in essence, the application (s) for recall of order dated 18.11.2020, for all the practical purposes, were applications seeking review only, and merely if an application is filed with the nomenclature of 'recall', it cannot be termed as an application other than a review application under Order 47 Rule 1 of CPC and Rule 9 of which clearly bars such an application.
13. In this regard, this Court may also fruitfully rely upon a recent decision dated 08.07.2022, rendered by a Division Bench of this Court at Principal Seat Jabalpur in Review Petition No.1103/2018 (Anand Deep Singh S/o Late Sardar Maninder Singh and Grandson of Sir Datar Singh & two others v. The State of Madhya Pradesh & fifteen others) which reads, as under: -
"xxxxxxxxxxxxxxxxxxxxxx The provisions of Order XLVII Rule 9 of the Code of Civil Procedure are quite clear. They read as follows:-
"9. Bar of certain applications.- No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained."
Therefore, a clear reading of the same would bar the second review application.
Hence, for all these reasons, the review petition being devoid of merit, is dismissed."
(Emphasis supplied)
14. Perusal of the aforesaid order also reveals that this court has also emphatically held that the second review application Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 04-08-2022 18:37:51 RP No.345/2022 8 is not maintainable. In such circumstances, in the present case also, as the review petition has been filed for review of an order passed in a review petition itself (though, called a recall application), the same is clearly barred by law.
15. This Court is also fortified in its view by relying upon a decision rendered by the Supreme Court in the case of Delhi Administration v. Gurdip Singh Uban reported in (2000) 7 SCC 296 relevant paras 17 to 20 read, as under: -
"13. The following points arise for consideration:
(1) Whether a party who had lost his case in Civil appeal could be permitted to by-pass the procedure of circulation in Review matters and adopt the method of filing applications for 'clarification', 'modification' or 'recall' of the said order in Civil Appeals so that the mailers were not listed in circulation but could be listed in Court straight away? Whether such applications could be filed even after dismissal of review applications? What is the procedure that can be followed in such cans? (2) ........xxxx.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
17. We next come to applications described as applications for 'clarification', 'modification' or 'recall' of judgments or orders finally passed. We may point out that under she relevant rule XL of the Supreme Court Rules, 1966, a review application has first to go before the learned Judges in circulation and it will be for the Court to consider whether the application is to be rejected without giving an oral hearing or whether notice is to be issued.
Order XL. R.3 states as follows:
"3. Unless otherwise ordered by the Court, an application for review shall be disposed of by circulation without any arguments, but the petitioner may supplement his petition by Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 04-08-2022 18:37:51 RP No.345/2022 9 additional written arguments, The Court may either dismiss the petition or direct notice to the opposite party......"
In case notice is issued, the review petition will be listed for hearing, after notice is served. This procedure is meant to save the time of Court and to preclude frivolous review petitions being filed and heard in open Court. How-ever, with review a view to avoid this procedure of 'no hearing', we find that sometimes applications are filed for 'clarification', 'modification' or 'recall' etc. not because any such clarification, modification is indeed necessary but because the applicant in reality wants a review and also wants a hearing, thus avoiding listing of the same in Chambers by way of circulation. Such applications, if they are in substance review applications, deserve to be rejected straight-way inasmuch as the attempt is obviously to by- pass O.XL.R3 relating to circulation of the application in Chambers for consideration without oral hearing. By describing an application as one for 'clarification' or 'modification', - though it is really one of review- a party cannot be permitted to Circumvent or by-pass the circulation procedure and indirectly obtain a hearing in the open Court, What cannot be done directly cannot be permitted to be done indirectly. (See in this connection a detailed order of the then Registrar of this Court in Sone Lal and Ors. v. State of U.P. [1982] 2 SCC 398 deprecating a similar practice.)
18. We, therefore, agree with the learned Solicitor General that the Court should not permit hearing of such an application for 'clarification', 'modification or 'recall' if the application is in substance one for review. In that event, the Court could either reject the application straight away with or without costs or permit withdrawal with leave to file a review application to be listed initially in Chambers.
19. What we have said above equally applies to such applications filed after rejection of re-applications particularly when a second review is not permissible under the rules. Under Order XL. R5, a second review is Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 04-08-2022 18:37:51 RP No.345/2022 10 not permitted. The said Rule reads as follows:
"5. Where an application for review of a Judgment or order has been disposed of, no further application for review shall be entertained in the same matter."
20. We should not, however, be understood as saying that in no case an application for 'clarification', 'modification" or 'recall' is maintainable after the first disposal of the matter. All that we are saying is that once such an application is listed in Court- the Court will examine whether it is, in sub-stance, in the nature of review and is to be rejected with or without costs or requires to be withdrawn with leave to file a review petition to be listed in Chambers by circulation. Point 1 is decided accordingly."
(Emphasis supplied)
16. In the case on hand, we have already observed that the application for recall was in fact an application for review only. Thus, the aforesaid decision is applicable in full force in the facts and circumstances of the present case.
17. In this regard, a reference may be had to a decision rendered by the Supreme Court in the case of J. Ranga Swami v. Government of Andra Pradesh reported in (1990) 1 SCC 288; relevant para 3 of the same reads, as under: -
"3. We are clearly of the opinion that these applications are not maintainable. The petitioner, who appeared in person, referred to the judgment in Antulay's case. We are, however, of the opinion that the principle of that case is not applicable here. All the points which the petitioner urged regarding the constitutionality of the Government orders in question as well as the appointment of respondent instead of petitioner to the post in question had been urged before the Bench, Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 04-08-2022 18:37:51 RP No.345/2022 11 which heard the civil appeal and writ petitions originally. The petitioner himself stated that he was heard by the Bench at some length. It is, therefore, clear that the matters were disposed of after a consideration of all the points urged by the petitioner and the mere fact that the order does not discuss the contentions or give reasons cannot entitle the petitioner to have what is virtually, a second review."
(Emphasis supplied)
18. In such circumstances, the decisions relied upon by the learned Senior Counsel Shri Cama are distinguishable on facts and are of no avail to the petitioner.
19. Lastly, we would also like to refer to the decision in the case of Green View Tea and Industries (supra), the relevant paras of the same read as under:-
"12. The learned Additional Solicitor General contended that, in view of the fact that the special leave petition against the substantive judgment of the High Court dated 24-6-1998 was dismissed as withdrawn, there was no question of enter- taining a review application in respect of the said judgment and sought revocation of the leave granted. In our view, this contention is misconceived. In K. Rajamouli v. A.V.K.N. Swamy this Court was concerned with the same issue. It was held at SCC p. 41, para 4:
"[T]he dismissal of the special leave petition against the main judgment of the High Court would not constitute res ju- dicata when a special leave petition is filed against the order passed in the review petition provided the review petition was filed prior to filing of special leave petition against the main judgment of the High Court. The position would be dif- ferent where after dismissal of the special leave petition against the main judgment a party files a review petition after a long delay on the ground that the party was prosecut- ing (sic) remedy by way of special leave petition. In such a Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 04-08-2022 18:37:51 RP No.345/2022 12 situation the filing of review would be an abuse of the pro- cess of the law."
(emphasis supplied)
13. This judgment squarely applies to the facts before us. The review petition in the instant case was filed on 29-7- 1998, while the special leave petition against the main judg- ment of the High Court was itself filed on 16-10-1998. It was in these circumstances that this Court was persuaded to grant leave in the matter. We see no substance in the contention urged as to the non-maintainability of the appeal."
(emphasis supplied in original)
20. In the present case, the present review petition has been filed on 11.03.2022 by the petitioners only after their SLP was dismissed by the Supreme Court on 27.10.2021, thus also, the present petition is liable to be dismissed.
21. In the result, Review Petition No.345/2022 being devoid of merits is hereby dismissed as having not maintainable being the second review, with a cost of Rs.50,000/- (rupees fifty thousand only) to be deposited in the High Court Legal Aid Services Authority, Indore (MP) for wasting the valuable time of this court.
All the other pending interlocutory applications, if any, shall stand disposed of.
(Subodh Abhyankar) (Pranay Verma)
Judge Judge
Pithawe RC
Signature Not Verified
Signed by: RAMESH
CHANDRA PITHWE
Signing time: 04-08-2022
18:37:51