Umesh Kumar Pahwa & Others vs Board Of Directors & Others

Sudhanshu Dhulia, J

1 Review applicant has filed the review applications, being Review Application MCC no. 1039 of 2018 and Review Application MCC no. 1026 of

2018, seeking review of the judgment and order dated 17.07.2018, passed by this Court.

Writ petition no. 04 (S/B) of 2013, Umesh Kumar Pahwa Vs Board of Directors and others was filed by the writ petitioner-review applicant

seeking quashing of the termination order dated 29.09.2011 and appellate authority's order dated 30.12.2011, whereof Writ petition no. 267 (S/B) of

2013, had been filed by the writ petitioner-review applicant seeking mandamus to the respondents to grant promotion to him from Scale II to Scale III

from the date when juniors to him were promoted i.e. w.e.f. 30.03.2005.

Since the writ petitions aforementioned were decided by a common judgment and order and although separate review applications have been filed,

as the grounds in both the review applications are same, thus, the review applications are being decided by a common judgment for the sake of

brevity.

Review application no. 1026 of 2018 has been filed, inter alia, on the grounds that this Court has committed mistake apparent on the face of record

while dismissing the writ petitions. In the earlier round of litigation WPSB no. 83 of 2006, decided on 29.06.2011 and WPSB no. 65 of 2012, decided

on 04.12.2012, were filed by the writ petitioner. While deciding both the writ petitions, this Court issued directions to the respondent authorities to

decide the representations, both dated 12.01.2013, of the writ petitioner. The representations so made were dismissed by the Bank in the month of

June 2013. Feeling aggrieved, WPSB no. 267 of 2013 had been filed. Further ground is taken that no opportunity of hearing was afforded to the

petitioner while dismissing the WPSB no. 267 of 2013. It is also stated that vide order dated 18.04.2018, the writ petitioner was asked to submit his

written arguments, which was submitted by him on 23.04.2018 in two pages, but the written arguments submitted by the writ petitioner were not taken

into consideration by the Court, which consist the soul and substance of the matter.

The grounds on which review is sought of the judgment and order passed in WPSB no. 04 of 2013 are that this Court did not consider the point

raised / argued by the petitioner; the decision of the Hon'ble Apex Court has not been considered, whereof review applicant tried to built up his case

of malice and bias. It is stated that other grounds taken in the writ petition have not been considered; written arguments submitted on 23.04.2018 have

also not been considered. It is contended that review applicant had proved his case and the judgments of Hon'ble Supreme Court cited by him have

not been considered by the Court while dismissing the writ petition.

We have heard Mr. Umesh Kumar Pahwa, review applicant in person, Mr. Anil Kumar Joshi, learned counsel for the respondents and perused the

grounds raised in the review applications as well as in the writ petitions.

A perusal of the grounds raised in the review applications would reveal that the review applicant has raised a ground that the judgments of Hon'ble

Apex Court have not been considered while deciding the writ petitions. A perusal of the grounds of review applications would further reveal that there

is no reference of any decisions of Hon'ble Supreme Court in both the review applications. A further perusal of the record would reveal that the

review applicant has taken a specific plea that he was not afforded an opportunity of hearing / argument. However, he stated that he had submitted

the written arguments on 23.04.2018.

Writ petitions aforementioned were heard on 18.04.2018. Mr. Umesh Kumar Pahwa was heard in person on that day. Mr. Anil Kumar Joshi,

Advocate appeared on behalf of the respondents and after hearing the arguments advanced by the writ petitioner (review applicant herein) and

counsel for the respondents, the judgment was reserved and thereafter the same was delivered on 17.07.2018.

A perusal of the record would further reveal that the written arguments, as stated in the grounds of review applications, were not submitted by the

review applicant.

In support of the review applications, Mr. Umesh Kumar Pahwa, review applicant in person, placing reliance on the judgment of Hon'ble Apex

Court in Union of India & others Vs Gyan Chand Chattar (2009) 12 SCC 78s ubmitted that it has been held in para 35 of the judgment that -""the

charges should be specific, definite and giving details of incidence which formed the basis of charges. No enquiry can be sustained on vague charges.

Drawing attention of this Court towards para 32 of the judgment he would submit that Hon'ble Apex Court has reiterated its earlier judgment in Surath

Chandra Chakrabarty Vs State of West Bengal, (1970) 3 SCC 548 and held that ""it is not permissible to hold an enquiry on a vague charge as the

same does not give clear picture to the delinquent to make an effective defence because he may not be aware as what is the allegation against him

and what kind of defence he can put in rebuttal thereof.

Further reliance has been placed by Mr. Pahwa in State of Uttar Pradesh & others Vs Saroj Kumar Sinha (2010) 2 SCC 77,2 stating that in para

28 it has been held by Hon'ble Apex Court that - ""An enquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator.

He is not supposed to be a representative of the department / disciplinary authority / Government. His function is to examine the evidence presented

by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are

proved."" On the strength of said judgment Mr. Pahwa would submit that department has violated the principle of natural justice while passing the order

of termination. He would further submit that the appellant authority also did not give a fair opportunity of hearing to him.

Relying further on the judgment rendered by Hon'ble Apex Court in M.V. Bijlani Vs Union of India & others (2006) 5 SCC 88, Mr. Pahwa drew

attention of this Court towards para 25, wherein it has been held that -""The enquiry officer cannot shift the burden of proof. He cannot reject the

relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent

officer had not been charged with."" Mr. Pahwa would submit that in the departmental enquiry, the department had failed to prove his guilt. He would

also submit that since the department failed to prove his guilt, being the quasi judicial proceedings, the same needs a high standard of proof.

Mr. Pahwa placing reliance on a judgment of Hon'ble Supreme Court in Commissioner, Karnataka Housing Board Vs C. Mudaiah (2007) 7 SCC

689 would submit that while deciding both the writ petitions, the rule of procedure ought to have been adopted by this Court.

Having heard Mr. Pahwa and after considering the ratio of the judgments (supra) cited by him, it appears that none of these judgment are

applicable to the facts and circumstances of the case. What has been argued by Mr. Pahwa is that opportunity of hearing was not afforded to him by

the department and this Court did not give any opportunity of hearing to him while dismissing the writ petition. He would further argue that the written

arguments allegedly submitted by the writ petitioner on 23.04.2018 have not been considered at all. He would further submit that the services of the

writ petitioner-review applicant were terminated by the Bank vide its order dated 29.09.2011, in an arbitrary manner and in violation of principle of

natural justice.

A perusal of the record would further reveal that the writ petitioner cross-examined the departmental witnesses and was also afforded opportunity

to lead his evidence. Thus, the grounds raised by the review applicant that opportunity of hearing was not provided to him by the department is

unsustainable. The submission of Mr. Pahwa that he submitted written arguments on 23.04.2018 is unsustainable as the judgment was reserved after

hearing him and the counsel for the respondents. Though he claims that he submitted the written submissions in the matter, but on careful perusal of

the record it is apparent that he did not submit such written arguments on record. If he had submitted the written arguments on the alleged date i.e.

23.04.2018, certainly the same must have been found on record.

The procedure has been prescribed for submitting the written arguments in Section 90 of the Code of Civil Procedure, 1908. The same is

extracted here-in-below:

Power to state case for opinion of Court. -Where any persons agree in writing to state a case for the opinion of the Court, then the Court shall try

and determine the same in the manner prescribed.

Had a written application for submitting written arguments would have been filed, the same should have been registered in the office and must be

placed on the record of file of a reserved judgment. The review applicant has not adduced any evidence in this regard and merely raised such ground

in the review application. Thus, it appears to us that Mr. Pahwa has a courage to make false statement before this Court that he had filed the written

arguments on 23.04.2018. We deprecate such practice of Mr. Pahwa in making the false statement, who had taken this ground in the review

application. When we heard Mr. Pahwa time to time, we have afforded him a patient hearing and he consumed a considerable time of the Court to

argue the review applications. While arguing the review applications, Mr. Pahwa has argued the same in a manner as he is arguing the writ petition de

novo.

The scope of review is limited in view of the provisions contained in Section 114 and Order 47 Rule 1 of the Code of Civil Procedure, 1908.

Section 114 and Order 47 Rule 1 of the Code are excerpted hereunder:

Review:- Subject as aforesaid, any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed by this Code, or

(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the

order, and the Court may make such order thereon as it thinks fit.

Order XLVII Rule 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 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.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other

party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the

Appellate Court the case on which he applies for the review.

[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.]

A review application can be entertained by the Court when the review applicant convince the Court that when the order was passed some mistake

or error apparent on the face of record or for any other sufficient reason, he desires to obtain a review of the order passed by the Court, but Mr.

Pahwa did not apprise this Court what is the mistake or error apparent on the face of record committed by this Court in passing the order sought to be

reviewed. Neither any of the arguments advanced nor any of the grounds taken by Mr. Pahwa in the review applications which would suggest the

particular nature of mistake or error apparent on the face of record. Though this Court is not supposed to enter into the controversy involved in the

writ petition while deciding the review applications, but purely in the interest of justice we have heard Mr. Pahwa at length, but again he could not

convince us in regard to any mistake or error apparent on the face of record which requires interference in the judgment and order sought to be

reviewed. Mere taking the ground that there is a mistake or error apparent on the face of record is not sufficient, rather such mistake or error

apparent on the face of record should be pin pointed. The jurisdiction of the review court is limited to consider the review application if the review

court finds that there is a mistake or error committed by the court while passing the judgment impugned.

The Hon'ble Apex Court in catena of judgments has laid down the principle of law for exercising power of review. It is held that the court of

review has only limited jurisdiction circumscribed by definitive limits fixed by language used in Order 47 Rule 1. Reference may be had of Diesel Loco

Shed & South Eastern Railway House Building Coop. Society Ltd. Vs Attili Appala Swamy (2015) 2 SCC 390; Pandit Dhana Mali Vs Bhimbai (2007)

15 SCC 774; Jaya Chandra Mohapatra Vs Land Acquisition Officer (2005) 9 SCC 123; Sushil Kumar Vs State of Bihar (1975) 1 SCC 774.

The Hon'ble Apex Court in another judgment rendered in the case of Haryana State Steel Development Corporation Ltd. Vs Mawasi & others

(2012) 7 SCC 200 has held having considered the judgments rendered in the cases of S. Nagaraj Vs State of Karnataka 1993 Supp (4) SCC 595; Raja

Prithwi Chand Lal Choudhury Vs Sukhraj Rai AIR 1941 FC 1 and Rajunder Narain Rae Vs Bijai Govind Sing (1836) 1 Moo PC 117, that review

literally and even judicially means 're-examination' or 're-consideration'. The basic philosophy inherent in it is the universal acceptance of human

fallibility. (S. Nagaraj V State of Karnataka 1993 Supp (4) SCC 595, Para 19).

The Hon'ble Apex Court in the case of Inderchand Jain (dead) through LRs Vs Motilal (dead) through LRs (2009) 14 SCC 66, 3has observed that

while hearing the review petition, the Court cannot sit as an appellate court over its own judgment and order and rehearing of the matter de novo is

impermissible in law. The relevant paragraph of the judgment is extracted hereunder:

It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A re-hearing of the matter is impermissible in

law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of

inherent jurisdiction is not invoked for reviewing any order. Review is not appeal in disguise. In Lily Thomas Vs Union of India AIR 2000 SC 165,0

this Court held - ""It follows, therefore, that the power of review can be exercised for correction of a mistake and 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 as appeal in disguise.

Further, in Lily Thomas & others Vs Union of India (2000) 6 SCC 224, the Hon'ble Supreme Court has observed as under:

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 a larger Benches and not taking different views by the Benches of coordinated

jurisdiction of equal strength has to be followed and practiced. 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.

In Meera Bhanja Vs Nirmala Kumari Choudhury (1995) 1 SCC 17,0 the Hon'ble Apex Court considered as to what can be characterized as an

error apparent on the face of the record and observed:

9.....it has to be kept in view that an error apparent on the face of the 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 Satyanarayan Laxminarayan Hegde Vs Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 13,7 wherein 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.

The jurisdiction of the Court in hearing the review application is not akin to the appellate or trial jurisdiction, rather it is the limited jurisdiction to

correct the accidental mistake or to avoid miscarriage of justice. We should not have considered the review applications as de novo hearing of the

matter, however, to consider all the possibilities which could be favourable to the review applicant, we have considered the entire matter de novo upon

hearing the review applications, but we have failed to find out any sufficient ground which requires review of the judgment and order impugned. Since

the review applicant could not convince us in regard to any mistake or error apparent on the face of record and we also could not find any error

apparent on the face of the record, thus we find no scope to review the judgment sought to be reviewed.

Having considered the matter from every possible angle, we do not find any merit in both the review applications. The review applications, being

devoid of merit, are dismissed accordingly.