Karnataka High Court
Sri R Thanbalan vs The Union Of India on 12 August, 2022
Bench: B.Veerappa, S Vishwajith Shetty
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RP No. 177 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF AUGUST, 2022
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
REVIEW PETITION No.177 OF 2021
IN
WRIT PETITION No.47419/2017(CAT-S)
BETWEEN:
1. SRI R. THANBALAN,
S/O LATE N. RAMASWAMY RAJ,
AGED ABOUT 58 YEARS,
R/AT B1, VINAYAKA NIVAS,
1ST MAIN ROAD, 16TH CROSS,
OLD MADRAS ROAD, PAL LAYOUT,
BENGALURU 560016.
...PETITIONER
(BY SRI. RAMACHANDRA HALINATHOTA., ADVOCATE)
AND:
Digitally signed by
MALATESH K C
1. THE UNION OF INDIA,
Location: High
Court of REP. BY ITS SECRETARY TO THE GOVT,
Karnataka DEPARTMENT OF SPACE CHAIRMAN,
ISRO, ANTHARIKASHA BHAVAN,
NEW BEL ROAD, BENGALURU 560231.
2. THE CHAIRMAN,
GRIEVANCE COMMITTEE,
ISTRAC/ISRO,
BENGALURU 560058.
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RP No. 177 of 2021
3. THE JOINT SECRETARY TO THE GOVT,
DEPT. OF SPACE (DOS),
ANTHRIKASHA BHAVAN, NEW BEL ROAD,
BENGALURU 560231.
4. THE DEPUTY /UNDER SECRETARY
TO THE GOVERNMENT,
DEPT. OF SPACE (DOS),
ANTHRIKASHA BHAVAN, NEW BEL ROAD,
BENGALURU 560231.
5. THE DIRECTOR
ISRO TELEMETRY TRACKING AND COMMAND,
ISTRAC/ISRO, FLAT NO 12 AND 13,
3RD MAIN, 2ND PHASE,
PEENYA INDUSTRIAL AREA,
BENGALURU 560058.
6. THE SENIOR ADMINISTRATIVE OFFICER,
ISRO TELEMETRY TRACKING AND COMMAND
ISTRAC/ISRO, FLAT NO 12 AND 13,
3RD MAIN, 2ND PHASE,
PEENYA INDUSTRIAL AREA,
BENGALURU 560058.
...RESPONDENTS
****
THIS REVIEW PETITION IS FILED UNDER ORDER XLVII
RULE 1 R/W SECTION 114 OF CODE OF CIVIL PROCEDURE,
PRAYING TO REVIEW THE ORDER PASSED IN W.P.No.
47419/2017 DATED 23/04/2021 BY THIS COURT AND TO
ALLOW THE WRIT PETITION AND CONSIDER THE PRAYER AND
PASS SUITABLE ORDERS.
THIS REVIEW PETITION COMING ON FOR ADMISSION
THIS DAY, B.VEERAPPA J., MADE THE FOLLOWING:
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RP No. 177 of 2021
ORDER
The present Review Petition is filed by the petitioner praying to review the Order 23.04.2021 passed by the Co-
ordinate Bench of this Court in W.P.No.47419/2017, dismissing the writ petition, confirming the Order dated 01.08.2017 passed by the Central Administrative Tribunal, Bengaluru, in Application No.170/001687/2015.
2. The petitioner who was serving the Indian Space Research Organization (ISRO) had filed Original Application before the Central Administrative Tribunal, Bengaluru, stating that he was appointed as a Junior Stenographer on 03.08.1984 at ISRO and was promoted to the post of Stenographer on 01.01.1988 in the pay of `1,400/-. Further, he was promoted to the post of Personal Assistant (A) on 17.05.1991 and was again promoted to the post of Personal Assistant (C) on 31.07.2003. The undisputed facts reveal that the petitioner was transferred from ISRO Telemetry Tracking and Command (ISTRAC) to Department of Space (DOS), Bengaluru, on 30.12.2005. The petitioner contended that, it was not a transfer on deputation, but was a transfer on working arrangement basis. It is further case of the petitioner that he -4- RP No. 177 of 2021 was not granted benefits which the other employees were getting in the Department of Space (DOS) like increments, medical bills claim, promotion, CEA, LTC etc., and therefore, he submitted a representation on 05.06.2009 requesting respondent Nos.3 and 4 to send him back to his parent Department i.e., ISTRAC. Since no transfer order was issued, again petitioner made a representation with a request to grant him upgradation and also to grant 1st and 2nd upgradation under Modified Assured Career Progression (MACP). Instead of granting the aforesaid benefits, the petitioner was transferred back to his parent Department-ISTRAC w.e.f. 05.02.2013.
Since the petitioner was not granted the aforesaid benefits, he approached the Central Administrative Tribunal, which came to be dismissed. Being aggrieved by the said Order, the petitioner approached this Court in W.P.No.47419/2017. The co-ordinate Bench of this Court, by the Order dated 23.04.2021, dismissed the Writ Petition holding that the Tribunal was justified in dismissing the Original Application filed by the petitioner, holding that the petitioner was transferred within the Ministry of ISTRAC to DOS and therefore, there is no reason to interfere with the Order passed by the Central Administrative Tribunal, Bengaluru.
-5- RP No. 177 of 20213. Being aggrieved by the order passed by the Coordinate Bench of this Court, the petitioner has filed the present Review Petition.
4. We have heard the learned counsel for the parties and perused the records, carefully.
5. The main ground urged in the present Review Petition is that, 'in the rejoinder filed before the Central Administrative Tribunal, Bengaluru, the petitioner has categorically pleaded the irregularity committed by the respondents. The Central Administrative Tribunal failed to take judicial note of the rejoinder, which clearly establishes the overlooking the petitioner in promotion'. The said ground is not a ground for review as the same is already considered by the Central Administrative Tribunal and the co-ordinate Bench of this Court.
6. The Co-ordinate Bench of this Court, in the Order passed in the Writ Petition negated the contention of the petitioner and at paragraphs-8, 9 and 10, has specifically held as under:
8. This Court has gone through the documents on record and heard the learned counsel for the parties at length.-6- RP No. 177 of 2021
9. The undisputed facts reveal that DOS and ISRO establishments are having independent Recruitment Rules. The employees working in ISRO are based upon the norms issued from time to time and the MACP of DOS personnel is limited to the DOS Secretariat only. The petitioner is trying to compare his case with the employees of the DOS while making a statement that some junior in the DOS has been promoted to next higher post.
10. This Court posed a catagoric question to the learned counsel for the petitioner, whether the petitioner was absorbed at any point of time in the DOS and the answer was 'negative'. The petitioner was merely transferred to DOS keeping in view the administrative exigencies, hence, he does not become the employee of the DOS. He was working by way of stop-gap arrangement in the Internal Audit Wing of DOS. As he wanted to go back to his parent Department, an order was passed posting him to his parent Department i.e., ISTRAC. The petitioner was a regular employee of ISTRAC right from 1984 and he was drawing the benefit of promotion, increments as well as other benefits which were granted to ISRO employees that were entitled to him from time to time and therefore as the petitioner is an employee of ISTRAC he is entitled for the benefits of ISTRAC. However, he -7- RP No. 177 of 2021 cannot compare his case on par with the employees of DOS, which is having a separate independent Recruitment Rules.
7. In view of the provisions of Order XLVII Rule 1 of the Code of Civil Procedure, the power of review can be exercised for correction of a mistake, but not to substitute a view. If the petitioner is not happy with the Order passed by this Court on the ground that some documents and some grounds are not considered by the CAT and this Court, it is not a ground for review. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Kamlesh Verma v. Mayawati reported in AIR 2013 SC 3301, wherein, at paragraphs 8, 11, 12, 15, 16 and 21, it is held as under:
8. The only point for consideration in this petition is whether the review petitioner has made out a case for reviewing the judgment and order dated 6-7-2012 [Mayawati v. Union of India, (2012) 8 SCC 106 : (2012) 3 SCC (Cri) 801] and satisfies the criteria for entertaining the same in review jurisdiction?
11. Further, Part VIII Order 40 of the Supreme Court Rules, 1966 deals with the review and consists of four rules. Rule 1 is important for our purpose which reads as under:
"1. The Court may review its judgment or order, but no application for review will be entertained in a -8- RP No. 177 of 2021 civil proceeding except on the ground mentioned in Order 47 Rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record."
12. This Court has repeatedly held in various judgments that the jurisdiction and scope of review is not that of an appeal and it can be entertained only if there is an error apparent on the face of the record. A mere repetition through different counsel, of old and overruled arguments, a second trip over ineffectually covered grounds or minor mistakes of inconsequential import are obviously insufficient. This Court in Sow Chandra Kante v. Sk. Habib [(1975) 1 SCC 674 : 1975 SCC (Cri) 305 : 1975 SCC (L&S) 184 : 1975 SCC (Tax) 200] held as under : (SCC p. 675, para 1) "1. Mr.Daphtary, learned counsel for the petitioners, has argued at length all the points which were urged at the earlier stage when we refused special leave thus making out that a review proceeding virtually amounts to a rehearing. May be, we were not right in refusing special leave in the first round; but, once an order has been passed by this Court, a review thereof must be subject to the rules of the game and cannot be lightly entertained. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and overruled arguments, a second trip over -9- RP No. 177 of 2021 ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of counsel's certificate which should not be a routine affair or a habitual step. It is neither fairness to the court which decided nor awareness of the precious public time lost what with a huge backlog of dockets waiting in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use. We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear then has been heard now, except a couple of rulings on points earlier put forward. May be, as counsel now urges and then pressed, our order refusing special leave was capable of a different course. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality."
(emphasis in original)
15. An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review. A review is by no means an appeal in disguise whereby an erroneous decision
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RP No. 177 of 2021is reheard and corrected, but lies only for patent error. This Court in Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715] held as under : (SCC pp. 718-19, paras 7-9) "7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. [AIR 1964 SC 1372] this Court opined :
(AIR p. 1377, para 11) '11. What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an "error apparent on the face of the record". The fact that on the earlier occasion the court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an "error apparent on the face of the record", for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by "error apparent". A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.'
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8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury [(1995) 1 SCC 170] while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma [(1979) 4 SCC 389] this Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.
9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition, it must be remembered has a limited purpose and cannot be allowed to be 'an appeal in disguise'."
(emphasis in original)
16. Error contemplated under the Rule must be such which is apparent on the face of the record and not an error 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. This Court, in Lily Thomas v. Union of India [(2000) 6 SCC 224 : 2000 SCC (Cri) 1056] held as under :
(SCC pp. 250-53, paras 54, 56 & 58)
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"54. Article 137 empowers this Court to review its judgments subject to the provisions of any law made by Parliament or any rules made under Article 145 of the Constitution. The Supreme Court Rules made in exercise of the powers under Article 145 of the Constitution prescribe that in civil cases, review lies on any of the grounds specified in Order 47 Rule 1 of the Code of Civil Procedure which provides:
'1.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 exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on 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 to the court which passed the decree or made the order.'
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Under Order 40 Rule 1 of the Supreme Court Rules no review lies except on the ground of error apparent on the face of the record in criminal cases. Order 40 Rule 5 of the Supreme Court Rules provides that after an application for review has been disposed of no further application shall be entertained in the same matter.
***
56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment.
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RP No. 177 of 202158. Otherwise also no ground as envisaged under Order 40 of the Supreme Court Rules read with Order 47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the judgment in Sarla Mudgal case [Sarla Mudgal v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569] . It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal case [Sarla Mudgal v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569] . We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting Section 494 amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words 'any other sufficient reason appearing in Order 47 Rule 1 CPC' must mean 'a reason sufficient
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RP No. 177 of 2021on grounds at least analogous to those specified in the rule' as was held in Chhajju Ram v. Neki [(1921-
22) 49 IA 144 : (1922) 16 LW 37 : AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] . Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa v. T. Nagappa [AIR 1954 SC 440] , this Court held that such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath v. Ahmad Ishaque [AIR 1955 SC 233] , it was held : (AIR p. 244, para
23) '23. ... [I]t is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? The learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.
Mr Pathak for the first respondent contended on the strength of certain observations of Chagla, C.J. in-- Batuk K. Vyas v. Surat Borough Municipality [ILR 1953 Bom 191 : AIR 1953 Bom 133] , that no error
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RP No. 177 of 2021could 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.' Therefore, it can safely be held that the petitioners have not made out any case within the meaning of Article 137 read with Order 40 of the Supreme Court Rules and Order 47 Rule 1 CPC for reviewing the judgment in Sarla Mudgal case [Sarla Mudgal v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569] . The petition is misconceived and bereft of any substance."
21. Keeping the above principles in mind, let us consider the claim of the petitioner and find out whether a case has been made out for interference exercising review jurisdiction."
8. Our view is also fortified by the dictum of the Hon'ble Supreme Court in the case of Ram Sahu (Dead) Through LRs
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RP No. 177 of 2021and Others Vs Vinod Kumar Rawat and Others reported in 2020 SCC OnLine SC 896, wherein, at paragraph-34, it is held as under:
34. To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of Section 114 CPC as the same is a substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowed but no appeal is preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the Court, which may order or pass the decree.
From the bare reading of Section 114 CPC, it appears that the said substantive power of review under Section 114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said Section imposed any prohibition on the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47 Rule 1 CPC, which has been elaborately discussed hereinabove. An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order 47 Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review.
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RP No. 177 of 20219. Absolutely there is no case made out pointing out the error apparent on the face of the record as contemplated under the provisions of Order XLVII Rule 1 of the Code of Civil Procedure, to review the order.
10. In view of the above, we pass the following:
ORDER
(i) The Review Petitioner has not made out any error apparent on the face of the record to review the Order dated 23.04.2021 passed in W.P.No.47419/2017.
(ii) Accordingly, the Review Petition is dismissed as devoid of any merit.
Sd/-
JUDGE Sd/-
JUDGE kcm