Himachal Pradesh High Court
Uco Bank And Others ...Review vs Chaman Singh on 5 August, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Review Petition No. 11 of 2019 with Ex. Petition No. 115 of 2018 .
Reserved on :31.7.2019.
Date of decision: 05.08.2019
1. Review Petition No. 11 of 2019 UCO Bank and others ...Review Petitioners Versus Chaman Singh ..Respondent.
2. Ex. Petition No. 115 of 2018 Chaman Singh r ...Petitioner Versus UCO Bank and others ...Respondents.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ? 1 No For the Review Petitioners : Mr. Sanjay Dalmia, Advocate, and for respondents in Ex.
Petition No.115 of 2018.
For the Respondent : Mr. Suneel Awasthi, Advocate and for petitioner in Ex.
Petition No.115 of 2018.
Tarlok Singh Chauhan, Judge Review Petition No. 11 of 2019 By medium of this petition, the petitioners have sought review of the judgment dated 27.6.2018 passed by 1 Whether reporters of Local Papers may be allowed to see the Judgment ?
::: Downloaded on - 29/09/2019 01:45:52 :::HCHP 2this Court in CWP No. 3082 of 2016 titled Chaman Singh vs. UCO Bank and others.
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2. It is not in dispute that the respondent had rendered 9 years 10 months and 5 days service as against the minimum 10 years of service prescribed by the Rules.
However, this Court after relying upon Regulation 18 which provides for the mode and manner in which the broken period of service is to be treated, allowed the petition and the broken period of service of the respondent was rounded off and treated as one year, thus making him eligible for pension.
3. It is averred by learned counsel for the petitioners that while filing reply even though the copy of Regulations had been filed, but the complete Regulation could not be placed before this Court, which has resulted in an erroneous decision having been passed against the petitioners.
4. For completion of facts, it needs to be stated that the judgment passed by this Court on 27.6.2018 was assailed before the learned Division Bench of this Court in LPA No.34 of 2018 titled UCO Bank and others vs. Chaman Singh. However, the same was dismissed granting liberty to the petitioners to ::: Downloaded on - 29/09/2019 01:45:52 :::HCHP 3 withdraw the appeal and file review petition as would be evident from the following:
.
"2. The facts as stated, are not in dispute.
Respondent, who is an Ex-serviceman, joined the appellan - Bank on 26 th June, 2006 and he retired from service on attaining the age of superannuation on 30th April, 2016 after rendering nine years, ten months and five days of service. Regulation 14 of the 1995 Regulations provides a minimum of 10 years of qualifying service as the eligibility condition for grant of pension.
3. It is also not in dispute that the printed set of UCO Bank (Employees') Pension regulations 1995, which was relied upon before the learned Single Judge, contained Regulation 18 as under:
"18. Broken period of service of less than one year.-If the period of service of an employee includes broken period of service less than one year, then if such broken period is more than six months, it shall be treated as one year and if such broken period is six months or less, it shall be ignored."
4. Learned Single Judge construed Regulation 18, as reproduced above, on the strength of the judgment of Hon'ble Supreme Court in Indian Bank and another Vs. N. Venkatramani (2007) 10 SCC 609, where a pari materia provision contained in Regulation 18 of the Indian Bank Regulations, was ::: Downloaded on - 29/09/2019 01:45:52 :::HCHP 4 interpreted to treat the broken period of more than six months as one year service. Relying upon the ratio of the cited decision, learned Single Judge held and .
rightly so that the respondent shall be deemed to have served the bank for 10 years and as such he possesses the qualifying service in terms of Regulation 14 to become eligible for pension.
5. In the instant appeal, learned counsel for the appellant - Bank relies upon another set of UCO Bank (Employees') Pension Regulations, 1995, stated to be notified on 29th September, 1995 and Regulation 18 of Chapter IV wherein contains a proviso, which is rconspicuously missing in the other set of Regulations, referred to above, produced before and relied upon by the learned Single Judge. Regulation 18, as contained in the booklet referred before us, reads as follows:
"18. Broken period of service of less than one year.-If the period of service of an employee includes broken period of service less than one year, then if such broken period is more than six months, it shall be treated as one year and if such broken period is six months or less it shall be ignored.
Provided that provisions of this regulation shall not apply for determining the minimum service required to make an employee eligible for pension."::: Downloaded on - 29/09/2019 01:45:52 :::HCHP 5
6. Since provisions now pressed into aid were neither cited nor referred to or discussed before the learned Single Judge, learned counsel for the .
appellant-Bank seeks permission to withdraw the appeal at this stage, with liberty to file a review petition. Ordered accordingly. It is clarified that we have not expressed any views on merit."
5. The respondent has filed the reply wherein it has not been denied that the complete Regulation 18 was not placed before this Court at the time when it rendered its decision on 27.6.2018.
6. Once that be so, the only question that remains to be considered is whether the fault of a party or its counsel can be a ground for review?
7. Even though number of judgments have been cited by each of the parties, however, I need not to refer the same as these judgments have already been considered by the 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:-::: Downloaded on - 29/09/2019 01:45:52 :::HCHP 6
"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.
r 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 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) ::: Downloaded on - 29/09/2019 01:45:52 :::HCHP 7 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 r 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 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)}.
::: Downloaded on - 29/09/2019 01:45:52 :::HCHP 8(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 r 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)
(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 166 (Para-21) (Two-Judge Bench)}.
::: Downloaded on - 29/09/2019 01:45:52 :::HCHP 9(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. {Board of Control for Cricket in India & another v.
Netaji Cricket Club & others, (2005) 4 SCC 741 (Para-90) (Two-Judge Bench)}.
(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. Attili Appala Swamy and others, 2015) 2 SCC 390) ::: Downloaded on - 29/09/2019 01:45:52 :::HCHP 10 (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)}.
r 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:
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 ::: Downloaded on - 29/09/2019 01:45:52 :::HCHP 11 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 r 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.
(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) 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 ::: Downloaded on - 29/09/2019 01:45:52 :::HCHP 12 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."
8. It would be noticed that from the aforesaid exposition of law the issue in question is squarely covered under Clause (D) (xiv) supra by the judgment of the Hon'ble Supreme Court in Board of Control for Cricket's case, wherein the Hon'ble Supreme Court observed as under:
::: Downloaded on - 29/09/2019 01:45:52 :::HCHP 13"90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An .
application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "sufficient reason" in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine 'actus curiae neminem gravabit' ".
9. Even otherwise the power of review can be exercised for correction of mistake, but not to substitute a view.
Moreover, it is universally accepted that "to err is human" and none is in fallible. Therefore, even the counsel could have erred in this case by not placing on record the complete copy of Regulations.
10. For all the reasons stated above, I find sufficient grounds to review the judgment dated 27.6.2018 passed by this Court in CWP No. 3082 of 2016. Accordingly, the review petition is allowed and the judgment passed by this Court on 27.6.2018 is ordered to be reviewed and set-aside. Registry is directed to register the Civil Writ Petition to its original number.
::: Downloaded on - 29/09/2019 01:45:52 :::HCHP 1411. Since the respondent has been dragged into unnecessary litigation, therefore, he is entitled to be .
compensated for the costs incurred towards such litigation, which are quantified at `30,000/-.
12. The review petition is disposed of in the aforesaid terms, also the pending application(s), if any.
Execution Petition No.115 of 2018
13. As the judgment in CWP No.3082 of 2016 has been reviewed, the same cannot now be executed. This Execution Petition is not maintainable and is accordingly dismissed.
5 th August, 2019 (Tarlok Singh Chauhan),
(GR) Judge
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