Andhra HC (Pre-Telangana)
Kum. K. Pushpa Leela vs Labour Court And Anr. on 28 November, 1991
Equivalent citations: 1992(1)ALT514
ORDER Sardar Ali Khan, J.
1. An interesting question of considerable importance has in arisen in this case The facts of the matte' lie within a narrow field.
2. The review petition has been filed for the review of the judgment of this court in W.A.No. 1438 of 1988, dated 5-12-1990. That judgment was passed by a Division Bench of this court consisting of M/s. G. Ramanujulu Naidu, J., and Iyyapu Panduranga Rao, J. After passing the judgment, Mr. Ramanujulu Naidu, J., has retired as a Judge of this High Court. The only remaining member of that Bench, which heard the case and passed the judgment in W.A.No. 1483 of 1988 dated 512-1990, is Mr. lyyapia Panduranga Rao, J.
3. When the application for review was filed, the matter was placed before this Division Bench (consisting of Mr. Sardar Ali Khan, J., and Mr. Iyyapu Panduranga Rao, J.)
4. Sri D. Reddappa Reddy, learned counsel appearing on behalf of the 2nd respondent in this case raised a legal issue that the review petition cannot be heard by this Division Bench and that it should he heard only by the remaining judge of the earlier Bench (Viz., Mr. lyyapu Panduranga Rao, J.) sitting single The learned counsel relied upon four decisions in this regard to substantiate his contention that it is the remaining judge alone who has to hear the petition in case the other judge has retired from service.
5. Before considering the case law relied upon by the learned counesl, it would be appropriate to reproduce hereunder the provisions of Order 47, Rule 5 of the Code of Civil Procedure which deals with the question of application for review in court consisting of two or more judges.
Order 47, Rule 5 "Where the Judge or Judges, or any one of the Judges, who passed the decree or made the order a review of which is applied for, continued or continue attached to the Court at the. time when the application for a review is presented and is not or are not precluded by absence or of others, such Judge or Judges or any of them shall hear the application, and no other Judge of Judges of the Court shall hear the same."
The Rule is clear to the effect that if a Judge of Judge who passed the decree or made the order, a review of which is applied for, continues or continue or continue attacted to the court at the time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application is presented, then such Judge or Judges alone shall hear the application and no other Judge or Judges can bear the same. It is pertinent to note that the final words occurring in this rule are that "no other Judge or Judges of the Court shall hear the same" The interpretation of the Rule has been the subject matter of a decision of a Division Bench of this court reported in Achutam v. Annapurnamma, . It may suffice to state that the Division Bench in this matter held that where a judgment and decree is passed by two Judges and one of the Judges having been appointed to the Supreme Court, the review application against the judgment and decree is posted under Order 47, Rule 5 of the Code of Civil Procedure before the other Judge and he dismisses it, the order passed by the Judge sitting alone is deemed to be on behalf of the Bench that originally heard the appeal. As against the judgment of the Bench of the Court, there can be no further appeal to another Division Bench. This judicial dictum has been laid down by the Division Bench in the light of the provisions of Order 47, Rule 5 of the Code of Civil Procedure which obviously means that in case one of the Judges of the Division Bench has retired from service or has been elevated to the Supreme Court and therefore cannot form a party to the Bench before whom the review application is filed, then the remaining judge alone shall hear the application for review and the decision of the single judge passed on that review application is deemed to be the order of the Division Bench.
6. Another decision reported in Sitarama Sastry v. Sundaramma, is also to the same effect where a single judge held that the contention that the remaining judge sitting single has jurisdiction to pass orders on review petition is well-founded in law. The single judge in that case assumed jurisdiction under Order 47, Rule 5 of the Code of Civil Procedure and heard the review application in the absence of the other Judges who had retired from service.
7. In yet another decision reported in Maji Mohan Kannar v. State, a Division Bench has taken the view under Order 47, Rule 5 of the Code of Civil Procedure that if a review is sought of an order or decree passed by a Division Bench and if one of the Judges of that Bench is unable for the causes stated above to form a party to that Division Bench, then the matter is to be heard by the remaining Judge alone and cannot be heard by other Judges or by the remaining judge sitting with another Judge who was not a party to the original decree or order sought to be reviewed. This view of the Rajasthan High Court was affirmed in the decision reported in Bhera v. Board of Revenue, wherein it was held relying upon the earlier authority of Maji Mohan's case, that even if one member of the High Court is available, the review application should be heard by him alone.
8. It is, therefore, evident that the consistent judicial opinion as emerging from the above decided cases is that in a matter of this nature it is the remaining Judge alone who has to hear the review petition and no other Judge. Moreover, the remaining Judge forming part of the Division Bench along with another Judge who had not heard the matter earlier should not have the jurisdiction to hear the review application.
9. Sri Mirza Nisar Ahmed Baig, learned counsel appearing for the petitioner in this matter, relied upon a decision reported in Monoharlal v. State, and contended that the matter can be heard by the Division Bench as constituted before whom the matter is listed. We would like to analise the judgment relied upon by the learned counsel to see whether the ratio of that case is applicable to the case on hand. In that case what happened was that certain rules were framed by the Madhya Pradesh High Court providing for review of cases decided under Article 226 of the Constitution of India. Rules 3 and 4 of Chapter I of the Rules framed by that High Court provided that "in cases not provided for by Oder XLVII, Rule 5 of the Code of Civil Procedure, an application for review of a decree or order shall be heard: (a) if the decree or order, review of which is applied for, is passed by a Judge alone, by a Bench of two Judges: (b) if the said decree or order was passed by a Bench of two or more judges, by a Bench consisting of as many Judges as the Bench of whose decree or order review is applied for." It is in the light of Rules 3 and 4 the Madhya Pradesh High Court held that the provisions of Order 47, Rule 5 of the Code of Civil Procedure are not applicable and the matter could be heard by another Division Bench of by an equal number of Judges who have decided the earlier matter of which the review is sought for by the parties. We are afraid that the ratio of this case is not applicable to the matter arising before us for the simple reason that no rule to the same effect has been framed by our High Court as was done in the case of Madhya Pradesh High Court. In other words the review application will have to be disposed of in accordance with the provisions of Order 47, Rule 5 of the Code of Civil Procedure. It has also been submitted by the learned counsel Mr. Baig that since in any case the Bench has been constituted by the Hon'ble the Chief Justice, the matter should be heard by the Division Bench itself and need not be sent to the remaining Judge (viz., Mr. Iyyapu Panduranga Rao, J.,) to hear the review application. This matter, no doubt, has been posted before this Division Bench but in the light of the provisions of Order 47, Rule 5 of the Code of Civil Procedure and the decisions referred to earlier in this judgment, it is obvious that the matter is to be heard only by the remaining single Judge (Mr. Iyyapu Panduranga Rao, J.,) and not by any other Judge as such. Therefore, we direct that this review application may be posted before the learned single Judge, Mr. Iyyapu Panduranga Rao, J., for hearing and disposal of the same according to law.
10. This Review WAMP coming on before the Hon'ble Sri Justice Iyyapu Panduranga Rao on this the 28th day of November, 1991 for final hearing pursuant to the Order of this Court dated 4-10-1991 and passed herein and upon perusing the petition and the order of this Court dated 4-10-91 and made herein and upon hearing the arguments of the counsels appearing on behalf of the parties concerned, the Court, made the following:-
ORDER
11. This review petition is directed to review the Judgment of this Court in Writ Appeals Nos. 931 and 1438 of 1988 dated 5-12-90.
12. The said judgment was delivered by me and Justice Ratnanujulu Naidu. Since Justice Ramanujulu Naidu retired from service, the matter is posted before me in view of the provisions of Order 47, Rule 5 CPC The brief facts of the case of the petitioners is that the petitioner joined the service of A.P.S.R.T.C. as a Junior Clerk on 26-8-80. Since she could not get on well with her colleagues, she was transferred to retreading Section of A.P.S.R.T.C at Vijayawada as a Junior Clerk. Later, she was again transferred to the Office of the Assistant Engineer, A.P.S.R.T.C, Guntur. Since there also things did not improve, she submitted a letter of resignation on 17-8-1983 which was accepted by the concerned authorities on 26-8-83 and the acceptance was duly communicated to her. Later, the review petitioner submitted a representation to the authorities concerned permitting her to withdraw her letter of resignation. But, the same was not complied with. Consequently, she filed I.D.No. 264/85 before the Labour Court, Guntur which was dismissed as per orders dated 20-5-1986. Assailing the orders in I.D.No. 264/85, a Writ Petition No. 7492/87 was filed and he learned single judge allowed to Writ Petition partly and awarded a compensation of Rs. 15,000/- while not granting relief of reinstatement as prayed for. Being aggrieved with the said judgment in W.P.No. 7492/87, while the review petitioner filed W.A.No. 1430/88, the A.P.S.R.T.C. filed W.A.No. 938/ 88. Both the Writ Appeals were heard and disposed of as per the common judgment dated 5-12-90 wherein the compensation awarded by the learnfed single judge at Rs. 15,000/- was increased to Rs. 25,000/- while rejecting reinstatement of the petitioner in service as prayed for. Aggrieved by the said judgment, the petitioner came up with the present petition.
13. The learned counsel appearing for the petitioner submits that this Court has categorically gave a finding that the resignation letter was not given by the petitioner voluntarily and hence this Court should have ordered reinstatement of the petitioner with fill back wages. To support his contention, the learned counsel for the petitioner relied upon the decisions in Shri Om Prakash Goel v. H.P. Tourism Dev. Corporation Limited and Anr., AIR 1991 (3) SC 6 and Mohan Lal v. Management, Bharat Electronics Ltd., . Having examined these cases, I find that these decisions have no application. Order 47, Rule 1 C.P.C. governs the case where review is asked for. Order 47, Rule 1 C.P.C. reads as follows: "Oroder47, Rule1 - Application for review of judgment:-
(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes.
and who, from the discovery of new and important matter or evidence which, after the the exercise of due deligence, was not within his knowledge or could not produced by him at the time when the decree was passed or order made or an account of some mistake or error apparent on the face of the record, or for any other sufficient reason desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the Court which passed the decree or made the order."
14. Review is permitted only in cases where (1) discovery of new and important matter of evidence which, after exercise of due diligence was not within the knowledge or could not be produced by the party at the time when the decree was passed or order was made, (2) on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. In this case, having considered the request of the review petitioner for re-instatement into service, the Court considered the matter at length and observed as follows:
"Since she is a practising advocate, it seems to me that the petitioner will do well to reconcile herself as an advocate than seeking reinstatement in the office of the Corporation where she had been humiliated. Taking all these circumstances into account, I would refrain from directing the reinstatement of the petitioner and also the payment of backwages although in the normal circumstances, I would have given that direction in the present case."
15. In these circumstances, the learned single Judge thought it fit to award compensation to the petitioner. Thus, the question of reinstatement of the petitioner was considered but the said relief was not granted in view of the fact that the review petitioner was practising as an advocate in this court. It is also to be noted that as on today, the review petitioner is appointed as Assistant Government Pleader in High Court. Thus, the learned single Judge as well as the Bench who heard the Writ Appeals considered the question of reinstatement of the review petitioner in the circumstances, but the said relief was negatived for the reasons mentioned supra. In view of the said circumstances, it is not now open for the review petitioner to ask for review of the judgment since the conditions laid down under Order 47, Rule 1 C.P.C. are not complied with.
16. The conduct of the petitioner disentitled her from claiming any relief. It is to be seen that when the learned single Judge awarded a compensation of Rs. 15,000/ - the said amount was withdrawn by the review petitioner. Similarly when the said compensation was enhanced to Rs. 25,000/-, in the Writ Appeal, the difference of Rs. 10,000/- was also deposited and the said amount was also withdrawn by her. Admittedly the review petitioner has already withdrawn relevant benefits also. Under these circumstances, finding no merits, the review petition is dismissed.