scope of review Delhi high court 2016

1 of 24
$~11
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Review Pet. No.216/2015 & CM No. 6743/2015 in
+ LPA 393/2004
% Reserved on : 18th January, 2016
Date of decision : 27th January, 2016
JIA LAL KAPUR ….. Appellant
Through : Mr. Arun Bhardwaj, Adv.
versus
UOI & ANR. ….. Respondents
Through : Mr. Akshay Makhija, CGSC
and Ms. Mahima Bahl,
Advs. for R-1.
Mr. Uday N. Tiwari, Adv.
for R-2.
CORAM:
HON’BLE MS. JUSTICE GITA MITTAL
HON’BLE MR. JUSTICE I.S. MEHTA
JUDGMENT
GITA MITTAL, J.
CM No.6743/2015
For the reasons stated, the delay of 26 days in re-filing the
review petition is condoned.
The application is disposed of.
Review Pet. No.216/2015
1. By way of the present petition, the petitioner has sought
review of the judgment dated 28th September, 2004 passed in the
present appeal. Before setting out the essential facts, we may note
the history of the litigation briefly, as is essential for the view we
are taking.
2 of 24
2. A writ petition being W.P.(C)No.2149/2001 was filed by the
petitioner contending that office memorandums dated 29th August,
1984 and 1st May, 1987 were not brought to his notice. By these
office memorandums, the government employees who had opted
for receiving CPF benefits on retirement were given an option to
have their retirement benefits calculated under the pension scheme
provided they refund to the government, certain benefits received
at the time of settlement of CPF amount. The petitioner, therefore,
claimed in the writ petition entitlement to exercise such option and
shifting to the pension scheme.
3. This writ petition was rejected by a decision of the Single
Judge dated 11th of February 2004. The petitioner assailed this
decision against him by way of LPA No.393/2004 which came to
be rejected by the Division Bench by a judgment dated 28th
September, 2004. The petitioner sought leave to appeal against
these decisions by way of SLP(C) No.1982/2005 which was
dismissed in limine on the 7th of February 2005. The petitioner’s
Rev.Pet.(C)No.727/2005 and Curative Petition(C) No.62/2005 also
came to be dismissed by the Supreme Court of India on 5th of April
2005 and 14th December, 2005 respectively.
4. The present petition seeking review of the judgment dated
28th September, 2004 was filed on 23rd of December 2014. It is
admitted that the review petition has been filed belatedly, ie. ten
years after passing of the judgment on 28th September, 2004.
Hence, by way of accompanying application being CM
3 of 24
No.6741/2015, the petitioner had sought condonation of delay in
filing the review petition.
5. Both the review petition and the application for condonation
of delay are premised on the same grounds i.e. that the review is
predicated on discovery of “new facts which were not in existence
earlier and to grant substantial justice to the petitioner”. We may
note that the application for condonation of delay came to be
allowed by this court by an ex-parte and non-speaking order dated
17th April, 2015.
6. We note some essential facts hereafter. The petitioner joined
services of the Government of India as an Assistant Coal
Superintendent Grade-II w.e.f. 25th April, 1955 and at the time of
joining service, he became a member of Contributory Provident
Fund under the administrative control of the Coal Production and
Development Commissioner. The petitioner was paid wages as per
the Central Dearness Allowance (CDA) pay pattern. On the
formation of the National Coal Development Corporation Ltd.
(hereinafter referred to as ‘NCDC’) on 1st October, 1956, services
of all the employees including the petitioner stood transferred to
this corporation.
7. As per the order dated 16th August, 1965 of the Government
of India, the government transferred the ownership and
management of the State Collieries to the NCDC w.e.f. 1st of
October 1956. It was stated therein that the transferred employees
in the NCDC would have the same tenure, remuneration, seniority,
terms and conditions and the same rights and privileges as to
4 of 24
pension etc., as would have been admissible to them, had the
employee continued in government service.
8. On the 16th of March 1968, the petitioner joined the post of
Chief Mining Engineer in the Hindustan Zinc Ltd. (hereinafter
referred to as ‘HZL’) on terms and conditions mentioned in the
letter dated 7th December, 1966 with permission to retain a lien on
his permanent post in the NCDC for a period of only one year. The
petitioner has placed heavy reliance on the following term and
condition which were to govern his permanent absorption in the
company :
“1. He will be eligible to same terms and conditions
of service and benefits as are admissible to a Central
Govt. officer of his status.”
9. Mr. Arun Bhardwaj, learned counsel for the petitioner
submits that the service rules of HZL stipulate that nothing in the
rules shall apply to any government servant or any person who may
be on any deputation or foreign service. We note that these very
rules further stipulate that the rules shall apply to a person who has
been appointed in the company on such terms and conditions as
applicable to Central Government employees of his status or such
employees appointed on contract basis thereafter.
10. Before us Mr. Arun Bhardwaj, learned counsel for the
petitioner has heavily relied upon the letter dated 16th of March,
1968 confirming the services of the petitioner with the HZL Ltd. It
is contended that this letter also confirmed that the petitioner was
5 of 24
being employed on the same terms as a Central Government
officer.
11. The respondents have contended that the petitioner was not
posted on deputation with the HZL and in fact was appointed as a
direct recruit by severing all his links with the Central Government
and that he had accepted the service conditions of the company
disentitling him to any differential benefits given by the Central
Government to its employees. In this regard, the respondents have
submitted that so far as Clause 1 of the letter dated 16th March,
1968 is concerned, the terms and conditions of the service and
benefits, as were admissible to the petitioner at the time of his
initial appointment with the HZL, were protected. There is no
dispute at all that these benefits were protected when the petitioner
entered service with the HZL. Once the petitioner came to be
permanently appointed by the HZL, the terms and conditions of
service, as applied to all other employees of the company, became
applicable to the petitioner. The fact that the petitioner has fully
accepted this position is evidenced from the facts noted hereafter.
This position of the HZL has been accepted by the learned Single
Judge in the judgment dated 11th of February, 2004 and upheld by
the Division Bench of this court, review whereof has been sought
by way of present petition.
12. On the 31st of December 1980, the Government of India had
issued a circular conveying its approval to the revision of pay
scales and other terms of employees of HZL. Consequently, the
pay scales came to be revised and the proposal to shift from the
6 of 24
Central Dearness Allowance (CDA) to Industrial Dearness
Allowance (IDA) pattern came to be implemented w.e.f. 1979 upon
giving effect to the 3rd Central Pay Commission. As a result, by an
office order dated 7th/8th January, 1981, the pay of the petitioner
was also revised and he started receiving emoluments higher than
what would be his entitlement if he was still in government service.
The petitioner accepted these shifts to the IDA pattern as well as
higher pay scale without any objection.
13. Further upward revision was effected to the pay scale of the
petitioner by virtue of his being an HZL employee by an order
dated 1
st of January 1982 which was also accepted by the
petitioner. This enhancement again did not apply to other
government servants. Thus, till his retirement on 30th of April
1987, the petitioner has accepted the benefit of all pay revisions
and higher pay, as were admissible only to employees of HZL Ltd.
and not to government employees.
14. The record also shows that upon his retirement, the
petitioner took all benefits admissible to him under the CPF
scheme.
15. The learned Single Judge has noted the contentions of the
parties in para 12 of the judgment. The above contention has been
dealt with in paras 17 to 19 of the judgment.
16. It appears that on 1st May, 1987, the Government of India
issued the circular OM No.4/1/87 PIC-1 granting an option to
Central Government employees to change over from the
Contributory Provident Fund scheme (‘CPF’ hereafter) to pension
7 of 24
scheme as part of the implementation of the recommendations of
the 4th Central Pay Commission. As per this circular, such CPF
beneficiaries “who were in service on 1st January, 1986 and who
are still in service on the date of issue of these orders” would be
deemed to be covered under the pension scheme. Even if it could
have been held that the petitioner was entitled to the benefit of the
option under this circular, however, the same has to be denied to
him inasmuch as the petitioner was not in service on the 1st of May
1987, when this circular was issued.
Clauses 6.1 and 6.2 of this circular specifically clarified that
this circular would not apply to those Central Government
employees who on re-employment stood allowed to continue to
CPF.
17. Before the learned Single Judge as well as in the writ appeal,
the petitioner has placed reliance on the office memorandums
bearing Nos.OM No.F 2(14)-EV(B)/63 dated 14.01.1964; OM
No.F 16(1)-EV/68 dated 31.08.1968; and OM No.7(5)-E(B)/72
dated 26.07.1972. We find that the learned Single Judge has, in
para 9 of the judgment, also dealt with the contentions of the
petitioner premised on the above as well as the circular of 1st of
May 1987. The learned Single Judge has noted that in the year
1979, the petitioner had shifted to the IDA pay pattern and ceased
to be governed by the CDA pay pattern. As such, inherently, the
4
th Central Pay Commission recommendations would not apply to
him.
8 of 24
18. So far as the present review petition is concerned, the main
ground pressed in support of the review petition is that the fact that
the office memorandum dated 1st of May 1987 was not brought to
the notice of the petitioner and its effect has not been noticed in the
judgment. In support of the review, the petitioner also relies on the
two judicial pronouncements which came to be pronounced after
the adjudication in the petitioner’s case in favour of two similarly
placed government employees. The first of these is a decision
dated 23rd August, 2011 passed in W.P.(C)No.3306/2005, K.S.R.
Chari v. Union of India & Ors. while the second is a decision
dated 4th of April 2013 in W.P.(C)No.11371/2006, R.K. Gupta v.
Union of India & Ors. The petitioner asserts an entitlement to the
relief granted to these persons by review of the judgments against
him.
No rehearing on merits permissible in review
19. Mr. Uday Tiwari, learned counsel for respondent no.2 has
also adverted at some length on the scope of the review petition. It
has been also contended that no re-hearing of the matter on merits
of issues which was known to or available with the petitioner at the
time of the original hearing is permissible. In support of this
submission, Mr. Tiwari has placed reliance on the judicial
pronouncement reported at (1995) 1 SCC 170, Meera Bhanja v.
Nirmala Kumari Choudhury, relevant extract is as follows :
“8. It is well settled that the review proceedings are not
by way of an appeal and have to be strictly confined to
9 of 24
the scope and ambit of Order 47, Rule 1, CPC. In
connection with the limitation of the powers of the court
under Order 47, Rule 1, while dealing with similar
jurisdiction available to the High Court while seeking to
review the orders under Article 226 of the Constitution
of India, this Court, in the case of Aribam Tuleshwar
Sharma v. Aribam Pishak Sharma [(1979) 4 SCC 389 :
AIR 1979 SC 1047] , speaking through Chinnappa
Reddy, J., has made the following pertinent
observations: (SCC p. 390, para 3)
“It is true as observed by this Court in Shivdeo
Singh v. State of Punjab [AIR 1963 SC 1909] ,
there is nothing in Article 226 of the Constitution
to preclude the High Court 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. But, there are definitive limits to
the exercise of the power of review. The power of
review may be exercised on the discovery of new
and important matter or evidence which, after the
exercise of due diligence was not within the
knowledge of the person seeking the review or
could not be produced by him at the time when
the order was made; it may be exercised where
some mistake or error apparent on the face of
the record is found; it may also be exercised on
any analogous ground. But, it may not be
exercised on the ground that the decision was
erroneous on merits. That would be the province
of a court of appeal. A power of review is not to
be confused with appellate power which may
enable an appellate court to correct all manner of
errors committed by the subordinate court.”
9. Now it is also to be kept in view that in the impugned
judgment, the Division Bench of the High Court has
clearly observed that they were entertaining the review
petition only on the ground of error apparent on the face
10 of 24
of the record and not on any other ground. So far as that
aspect is concerned, it has to be kept in view that an
error apparent on the face of record must be such an
error which must strike one on mere looking at the
record and would not require any long-drawn process
of reasoning on points where there may conceivably be
two opinions. We may usefully refer to the observations
of this Court in the case of Satyanarayan Laxminarayan
Hegde v. Mallikarjun Bhavanappa Tirumale [AIR 1960
SC 137 : (1960) 1 SCR 890] wherein, K.C. Das Gupta,
J., speaking for the Court has made the following
observations in connection with an error apparent on the
face of the record:
An error which has to be established by a long-drawn
process of reasoning on points where there may
conceivably be two opinions can hardly be said to be
an error apparent on the face of the record. Where an
alleged error is far from self-evident and if it can be
established, it has to be established, by lengthy and
complicated arguments, such an error cannot be cured
by a writ of certiorari according to the rule governing
the powers of the superior court to issue such a writ.”
(Emphasis supplied)
20. Our attention has also been drawn to the following
observations of the Supreme Court on this aspect in (2008) 8 SCC
612 State of W.B. v. Kamal Sengupta :
“22. The term “mistake or error apparent” by its very
connotation signifies an error which is evident per se
from the record of the case and does not require
detailed examination, scrutiny and elucidation either
of the facts or the legal position. If an error is not selfevident
and detection thereof requires long debate and
process of reasoning, it cannot be treated as an error
apparent on the face of the record for the purpose of
Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To
11 of 24
put it differently an order or decision or judgment
cannot be corrected merely because it is erroneous in
law or on the ground that a different view could have
been taken by the court/tribunal on a point of fact or
law. In any case, while exercising the power of review,
the court/tribunal concerned cannot sit in appeal over
its judgment/decision.
xxx xxx xxx
27. In Thungabhadra Industries Ltd. v. Govt. of
A.P. [AIR 1964 SC 1372] it was held that a review is by
no means an appeal in disguise whereof an erroneous
decision can be corrected.
28. In Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715]
it was held as under: (SCC p. 716)
xxx xxx xxx In exercise of the jurisdiction under
Order 47 Rule 1 CPC it is not permissible for an
erroneous decision to be ‘reheard and
corrected’. There is a clear distinction between an
erroneous decision and an error apparent on the
face of the record. While the first can be corrected by
the higher forum, the latter only can be corrected by
exercise of the review jurisdiction. A review petition
has a limited purpose and cannot be allowed to be
‘an appeal in disguise’.”
(emphasis added)
29. In Haridas Das v. Usha Rani Banik [(2006) 4 SCC
78] this Court made a reference to the Explanation
added to Order 47 by the Code of Civil Procedure
(Amendment) Act, 1976 and held: (SCC p. 82, para 13)
“13. In order to appreciate the scope of a review,
Section 114 CPC has to be read, but this section does
not even adumbrate the ambit of interference
expected of the court since it merely states that it
‘may make such order thereon as it thinks fit’. The
parameters are prescribed in Order 47 CPC and for
the purposes of this lis, permit the defendant to press
for a rehearing ‘on account of some mistake or error
apparent on the face of the records or for any other
12 of 24
sufficient reason’. The former part of the rule deals
with a situation attributable to the applicant, and the
latter to a jural action which is manifestly incorrect
or on which two conclusions are not possible.
Neither of them postulate a rehearing of the dispute
because a party had not highlighted all the aspects
of the case or could perhaps have argued them
more forcefully and/or cited binding precedents to
the court and thereby enjoyed a favourable verdict.
This is amply evident from the Explanation to Rule 1
of Order 47 which states that the fact that the
decision on a question of law on which the judgment
of the court is based has been reversed or modified
by the subsequent decision of a superior court in any
other case, shall not be a ground for the review of
such judgment. Where the order in question is
appealable the aggrieved party has adequate and
efficacious remedy and the court should exercise the
power to review its order with the greatest
circumspection.”
30. In Aribam Tuleshwar Sharma v. Aribam Pishak
Sharma [(1979) 4 SCC 389 : AIR 1979 SC 1047] this
Court considered the scope of the High Courts’ power to
review an order passed under Article 226 of the
Constitution, referred to an earlier decision in Shivdeo
Singh v. State of Punjab [AIR 1963 SC 1909] and
observed: (Aribam Tuleshwar case [(1979) 4 SCC 389 :
AIR 1979 SC 1047] , SCC p. 390, para 3)
“3. … It is true as observed by this Court
in Shivdeo Singh v. State of Punjab[AIR 1963 SC
1909] , there is nothing in Article 226 of the
Constitution to preclude a High Court 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. But, there are
definitive limits to the exercise of the power of
review. The power of review may be exercised on
13 of 24
the discovery of new and important matter or
evidence which, after the exercise of due diligence
was not within the knowledge of the person seeking
the review or could not be produced by him at the
time when the order was made; it may be exercised
where some mistake or error apparent on the face of
the record is found; it may also be exercised on any
analogous ground. But, it may not be exercised on
the ground that the decision was erroneous on
merits. That would be the province of a court of
appeal. A power of review is not to be confused with
appellate powers which may enable an appellate
court to correct all manner of errors committed by
the subordinate court.”
(Emphasis by us)
21. The above discussion would show that all contentions which
have been pressed before us, were placed before the learned Single
Judge and considered and in the detailed judgment dated 11th
February, 2004. The same issues were pressed before this court
when the judgment dated 28th September, 2004 was passed. The
review has been sought of the decisions on the very grounds on
merits which stand heard and decided. It is trite that the petitioner
stand precluded from seeking review of the judgment dated 28th
September, 2004 on these very grounds on merits.
Whether change in law or a subsequent judicial pronouncement
permits filing of a review petition?
22. Yet another ground on which the maintainability of the
present review is pressed before us. It has been submitted that the
review jurisdiction has to be confined only to the error apparent on
14 of 24
the face of the record. It is contended that merely because there is
a change in law after the judgment in a litigant’s case, be it
statutory or by a subsequent pronouncement under review, taking a
contrary or different view cannot be treated as an error apparent on
the face of the record. Therefore, this would be no ground at all for
review of the prior judgment.
23. In this regard, our attention is drawn to the explanation to
sub-rule (2) of Rule 1 of the Order XLVII which reads thus :
“1. Application for review of judgment.- xxx xxx xxx
Explanation : The fact that the decision on a question of
law on which the judgment of the court is based has
been reversed or modified by the subsequent decision of
a superior court in any other case, shall not be a
ground for the review of such judgment.”
24. This issue has arisen for consideration in two judicial
pronouncements before the Supreme Court reported at (2014) 51
SCC 75, Subramanian Swamy v. State of T.N. and State of W.B.
v. Kamal Sengupta
25. We may set out the authoritative enunciation of law in State
of W.B. v. Kamal Sengupta on the issue of when a review petition
would lie (para 35); whether a subsequent contrary judgment
would constitute an error apparent on the face of the record (paras
19 and 20); and consideration of the explanation to sub-rule 2 of
Rule 1 under Order XLVII of the CPC, extract whereof is
reproduced in extenso which is in the following terms :
15 of 24
“19. Before proceeding further, we consider it proper to
mention that there was divergence of opinion among the
High Courts on the question whether the subsequent contra
judgment by the same or a superior court on a point of law
can be treated as an error apparent on the face of the
record for the purpose of review of an earlier judgment.
In Lachhmi Narain Balu v. Ghisa Bihari [AIR 1960 Punj 43]
the learned Single Judge of the then Punjab High Court held
that the court cannot review its judgment merely because in
a subsequent judgment different view was expressed on the
same subject-matter. In Patel Naranbhai Jinabhai v. Patel
Gopaldas Venidas [AIR 1972 Guj 229] the learned Single
Judge of the Gujarat High Court considered the question
whether the Court can revise its view on the question of
pecuniary jurisdiction simply because the same has been
rendered doubtful in the light of subsequent decision of the
High Court and answered the same in the negative.
However, a contrary view was expressed
in Pathrose v.Kuttan [AIR 1969 Ker 186] . In that case, the
learned Single Judge of the Kerala High Court opined that a
subsequent decision authoritatively declaring the law can be
made the basis for reviewing an earlier judgment. The Law
Commission took cognizance of these divergent opinions
and suggested amendment of Order 47. That led to insertion
of the Explanation below Rule 2 of Order 47 by the Civil
Procedure Code (Amendment) Act, 1976. The same reads as
under:
“Explanation.—The fact that the decision on a question of
law on which the judgment of the court is based has been
reversed or modified by the subsequent decision of a
superior court in any other case, shall not be a ground for the
review of such judgment.”
20. In Nalagarh Dehati Coop. Transport Society Ltd. v. Beli
Ram [AIR 1981 HP 1] a Full Bench of the Himachal Pradesh
High Court considered the above reproduced Explanation
and held that a subsequent judgment of the Supreme Court
or a larger Bench of the same Court taking a contrary view
on the point covered by the judgment does not amount to a
16 of 24
mistake or error apparent on the face of the record. In Gyan
Chandra Dwivedi v. ADJ [AIR 1987 All 40] the learned
Single Judge of the Allahabad High Court took cognizance
of the Explanation, referred to the judgment of this Court
in Aribam Tuleshwar Sharma v. Aribam Pishak
Sharma [(1979) 4 SCC 389 : AIR 1979 SC 1047] and held:
(Gyan Chandra Dwivedi case [AIR 1987 All 40] , AIR p.
43, paras 9-10)
“9. It will thus be seen that while power of review
may be inherent in the High Court to review its own
order passed in a writ petition, the same has to be
exercised on well-recognised and established grounds
on which judicial orders are reviewed. For example,
the power may be exercised on the discovery of some
new and important matter or evidence which was not
within the knowledge of the parties seeking review
despite due exercise of diligence when the order was
made. Review can also be sought when the order
discloses some error apparent on the face of record or
on grounds analogous thereto. These are all grounds
which find mention in various judicial
pronouncements right from the earliest time as well as
in the Rules of Order 47 of the Civil Procedure Code
as permissible grounds of review.
An Explanation was added to Order 47 Rule 1 by the
amendment of the Civil Procedure Code by Central Act 104
of 1976. It reads:
xxx xxx xxx
10. This Explanation was added on the
recommendation of the Law Commission to put an
end to the controversy which had arisen as regards
whether a judgment could be reviewed merely on the
ground that the decision on a question of law on which
the same was founded has been reversed or modified
by the subsequent decision of a superior court. Almost
all the High Courts, save for the solitary exception of
the Kerala High Court, were unanimous in their
opinion that the fact that the view of law taken in a
17 of 24
judgment has been altered by a subsequent decision of
a superior court in another case could not afford a
valid ground for the review of the judgment.”
26. After the detailed discussion in para 35, the Supreme Court
has concluded as follows :
“35. The principles which can be culled out from the
abovenoted judgments are:
(i) The power of the Tribunal to review its order/decision
under Section 22(3)(f) of the Act is akin/analogous to the
power of a civil court under Section 114 read with Order 47
Rule 1 CPC.
(ii) The Tribunal can review its decision on either of the
grounds enumerated in Order 47 Rule 1 and not otherwise.
(iii) The expression “any other sufficient reason” appearing
in Order 47 Rule 1 has to be interpreted in the light of other
specified grounds.
(iv) An error which is not self-evident and which can be
discovered by a long process of reasoning, cannot be
treated as an error apparent on the face of record justifying
exercise of power under Section 22(3)(f).
(v) An erroneous order/decision cannot be corrected in the
guise of exercise of power of review.
(vi) A decision/order cannot be reviewed under Section
22(3)(f) on the basis of subsequent decision/judgment of a
coordinate or larger Bench of the tribunal or of a superior
court.
(vii) While considering an application for review, the
tribunal must confine its adjudication with reference to
material which was available at the time of initial decision.
The happening of some subsequent event or development
cannot be taken note of for declaring the initial
order/decision as vitiated by an error apparent.
(viii) Mere discovery of new or important matter or evidence
is not sufficient ground for review. The party seeking review
has also to show that such matter or evidence was not within
18 of 24
its knowledge and even after the exercise of due diligence,
the same could not be produced before the court/tribunal
earlier.”
27. On this very issue in the pronouncement in (2014) 51 SCC
75, Subramanian Swamy v. State of T.N., the court had held thus :
“52. The issue can be examined from another angle. The
Explanation to Order 47 Rule 1 of the Code of Civil
Procedure, 1908 (hereinafter referred to as “CPC”) provides
that if the decision on a question of law on which the
judgment of the court is based, is reversed or modified by
the subsequent decision of a superior court in any other case,
it shall not be a ground for the review of such judgment.
Thus, even an erroneous decision cannot be a ground for the
court to undertake review, as the first and foremost
requirement of entertaining a review petition is that the
order, review of which is sought, suffers from any error
apparent on the face of the order and in absence of any such
error, finality attached to the judgment/order cannot be
disturbed. (Vide Rajender Kumar v. Rambhai [(2007) 15
SCC 513 : (2010) 3 SCC (Cri) 584 : AIR 2003 SC 2095] .)”
28. It is trite therefore, that review of an order can be sought
only if there is an error apparent on the face of the record. A
contrary view in a subsequent judgment is not an error apparent on
the face of the record. As a result, the present petition seeking
review of the judgment dated 28th September, 2004 on the ground
of the subsequent pronouncements in K.S.R. Chari and R.K. Gupta
is not maintainable in view of the explanation to sub-rule 2 of
Rule 1 of Order XLVII of CPC.
29. Mr. Tiwari, learned counsel has submitted that in any case,
there is no parity between these persons and the petitioner. Shri
19 of 24
R.K. Gupta had joined as Assistant Coal Superintendent Grade II in
the Coal Department under the Ministry of Production wherefrom
he went to the office of the Coal Production and Development
Commissioner. Therefrom he had proceeded to the National Coal
Development Corporation (NCDC) wherefrom only he had retired
as a government employee. Shri R.K. Gupta has placed reliance on
the circular dated 29th June, 1981, benefit whereof was extended
only to those railway employees who had joined the NCDC in
1956.
30. Shri K.S.R. Chari was employed with the railways
wherefrom he moved to the NCDC and thereafter to the Ministry
of Steel. He had also retired from government service alone. The
circular relied upon by Shri K.S.R. Chari gave an option only to
persons who had been employed with the railways to changeover
to the pension scheme. Clearly the petitioner’s service has no
parity with either of these two persons.
31. It is contended by Mr. Arun Bhardwaj, learned counsel for
the petitioner that in both these writ petitions, the circular dated 1st
of May 1987 was not brought to the notice of Shri Gupta and Shri
Chari and the courts were of the view that there was an obligation
on the part of the National Coal Development Corporation to have
ensured that the information with regard to the change of option
was provided to all employees including those like the petitioners
who had been sent on deputation to other government departments.
For this reason, Shri Gupta and Shri Chari were held entitled to
exercise of the option for changeover to the pension scheme despite
20 of 24
much time having been lapsed since the date of their retirement.
The courts specifically rejected the respondent’s argument
premised on delay in seeking the relief against them. However, in
the case of K.S.R. Chari, the grant of monetary relief was curtailed
to pension being granted w.e.f. 1st of January 2002. Similarly, R.K.
Gupta was granted pension for the last three years only keeping in
view the delay which had ensued.
32. It has been pointed out by Mr. Uday N. Tiwari, learned
counsel for respondent no.2 that so far as Shri K.S.R. Chari was
concerned, he had remained an employee of the railways. Shri
K.S.R. Chari was employed in the coal department of the railways
and was subsequently employed with the NCDC and remained a
government employee. Similarly, Shri R.K. Gupta was an
employee of Coal India and was in government service till his
retirement. Neither of these two persons had moved from
government employment to a corporation like the petitioner who
had joined service with the HZL. There is nothing on record also
which would show that either Shri K.S.R. Chari or Shri R.K. Gupta
had at any time received a salary other than what was admissible to
government employees unlike the petitioner who had drawn a
higher pay scale on account of his employment with the HZL Ltd.
As noted above, the circular dated 1st May, 1987 would clearly
apply only to government employees and therefore, the case of the
petitioner cannot be held to be on parity with either that of K.S.R.
Chari or R.K. Gupta. The review of the judgment dated 28th
21 of 24
September, 2004 sought by the petitioner premised on the relief
granted to such persons is therefore, devoid of any legal merit.
33. Additionally, so far as R.K. Gupta’s case is concerned, the
order therein has been assailed by the government and a letters
patent appeal bearing LPA No.640/2013 is still pending in this
court.
The present review petition premised on the subsequent
judgments in K.S.R. Chari and R.K. Gupta is not only not
maintainable but also devoid of legal merit.
Whether review petition can be filed after dismissal of special leave
petition?
34. Mr. Tiwari, learned counsel for respondent no.2 has strongly
objected to the maintainability of the present review petition
contending that the petitioner’s submission that the review petition
would be maintainable even after the dismissal of the SLP in limine
is wholly erroneous. It is contended that the review would have
been maintainable if it had been filed either before or during the
pendency of the SLP. In support of this submission, reliance is
placed on the pronouncement of the Supreme Court reported at
(2001) 5 SCC 37, K. Rajamouli v. A.V.K.N. Swamy and (2010) 8
SCC 383, Meghmala v. G. Narasimha Sengupta.
35. In K. Rajamouli, the Supreme Court has held as follows :
“4. Following the decision in the case
of Kunhayammed [(2000) 6 SCC 359] we are of the
view that the dismissal of the special leave petition
against the main judgment of the High Court would not
22 of 24
constitute res judicata 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 different 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
prosecuting remedy by way of special leave petition. In
such a situation the filing of review would be an abuse
of the process of the law. We are in agreement with the
view taken in Abbai Maligai Partnership Firm [(1998) 7
SCC 386] that if the High Court allows the review
petition filed after the special leave petition was
dismissed after condoning the delay, it would be
treated as an affront to the order of the Supreme
Court. But this is not the case here. In the present case,
the review petition was filed well within time and since
the review petition was not being decided by the High
Court, the appellant filed the special leave petition
against the main judgment of the High Court. We,
therefore, overrule the preliminary objection of the
counsel for the respondent and hold that this appeal
arising out of special leave petition is maintainable.”
(Emphasis supplied)
36. On the same issue, in Meghmala, our attention is drawn to
the following binding principles laid down by the Supreme Court :
“23. In K. Rajamouli v. A.V.K.N. Swamy [(2001) 5 SCC 37 :
AIR 2001 SC 2316] this Court considered the ratio of the
judgment in Kunhayammed [(2000) 6 SCC 359 : AIR 2000
SC 2587] and Abbai Maligai Partnership Firm [(1998) 7
SCC 386 : AIR 1999 SC 1486] and held that if a review
application has been filed before the High Court prior to
filing the special leave petition before this Court and review
petition is decided/rejected, special leave petition against
that order of review would be maintainable. In case the
23 of 24
review application has been filed subsequent to dismissal of
the special leave petition it would amount to abuse of
process of the court and shall be governed by the ratio of the
judgment in Abbai Maligai Partnership Firm [(1998) 7 SCC
386 : AIR 1999 SC 1486] . The said judgment has been
approved and followed by this Court in Green View Tea &
Industries v.Collector [(2004) 4 SCC 122 : AIR 2004 SC
1738] .
xxx xxx xxx
25. Thus, the law on the issue stands crystallised to the
effect that in case a litigant files a review petition before
filing the special leave petition before this Court and it
remains pending till the special leave petition stands
dismissed, the review petition deserves to be considered. In
case it is filed subsequent to dismissal of the special leave
petition, the process of filing review application amounts to
abuse of process of the court.”
(Emphasis by us)
37. It is noteworthy that even the pronouncement in K.S.R.
Chari came on 23rd August, 2011 which is relied upon as the main
plank in support of the review. Therefore, the present review
petition has been filed after more than four years of the judgment in
K.S.R. Chari.
There is no dispute at all in the present case that the special
leave petition was dismissed in limine on 7th of February 2005.
This review petition filed in 2015 i.e. more than 10 years after the
dismissal of the SLP, is completely misconceived. In view of the
law declared by the Supreme Court, it is clearly an abuse of the
process of the court.
38. For the foregoing reasons, the review petition is dismissed
with costs. Even though, heavy costs are warranted for the abuse of
24 of 24
process, inasmuch as the petitioner is an aged retired employee
without any pension even, we are imposing token costs of `1,000/-
only to be paid to the Delhi High Court Legal Services Committee.
GITA MITTAL, J
I.S. MEHTA, J
JANUARY 27, 2016
aj