Ramesh Prasad Nigam ... vs State Bank Of India Hazratganj ...
2013 Latest Caselaw 762 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 

 
Case :- REVIEW PETITION No. - 164 of 2012
 

 
Petitioner :- Ramesh Prasad Nigam 6296(S/S)2001 [At:02:00 P.M.]
 
Respondent :- State Bank Of India Hazratganj Lko.Throu Its Chief G.M.& Ors
 
Petitioner Counsel :- J.K.Sinha
 

 
Hon'ble Anil Kumar,J.

Heard Sri J.K. Sinha, learned counsel for review petitioner and perused the record.

Initially, petitioner, Sri Ramesh Prasad Nigam approached this Court by filing Writ Petition No. 6296 (SS) of 2001( Ram Prasad Nigam Vs. State Bank of India and others) and the facts are that he served in the Air Force from 1963 to 1984. In the year 1984, certain posts of Cashier- cum-Clerk were fallen vacant in the State Bank of India as such he submitted his candidature for the same, called for interview, passed successfully, so by order dated 17.8.1984 appointed on probation on the said post and by order dated 2.3.1985 , confirmed.

On 30.12.2000 (Annexure no.2 ) a scheme was introduced in the State Bank of India known as Voluntary Retirement Scheme ( hereinafter referred to as 'Scheme').

In response to the said scheme, petitioner submitted his application opting for VRS, accepted with effect from 30.3.2001, thus he has been given provident funds, encashment of leave and other benefits as per terms and condition of the above said scheme.

Thereafter , petitioner has put foreword his case for payment of pension on the ground that he has completed sixteen and half years service in the bank and at the time of retirement he was 57 years, so he was entitled for pension. By order dated 14.6.2001 ( Annexure no.5) the Circle Development Officer rejected the claim of the petitioner in view of the amended Rules 22(i) (a) of the SBI Employees' Pension Fund Rules ( hereinafter referred to as 'Rules'). Accordingly, the Branch Manager , State Bank of India, Chakeri Branch, Kanpur (from where the petitioner has voluntarily retired), passed an order dated 27.6.2001 ( Annexure no.6) inter alia stating therein that as per the advice given by PPG Department Local Head Office in terms of amended rule NO. 22(i) (a) of the Rules , petitioner was not eligible for pension.

Aggrieved by the above said fact, petitioner submitted a representation dated 28.6.2001 ( Anneuxre no. 7) to the General Manager,State Bank of India, Local Head Office , Lucknow ,rejected by means of order dated 27.9.2001 ( Annexur no.8) . Thereafter he approached this Court by filing above said petition with the following reliefs:-

"(i) Issue a writ , order or direction in the nature of certiorari quashing the impugned order dated 27.6.2001, 14.6.2001, 27.9.2001 contained in annexure nos. 5,6, and 8 to this writ petition respectively after summoning the originals form the opposite parties.

(ii) Issue a writ, order or direction in the nature of certiorari quashing the entire recovery made against the petitioner including the order dated 15.11.2001 and 6.10, 2001 contained in annexure no. 12 to this writ petition and also quash the circular no.71 of 1985 contained in Anexure no.14 to this writ petition .

(iii) Issue a writ, order or direction in the nature of mandamus directing the opposite parties not to make any recovery from the petitioner towards the encashment of earned leave already paid and restore the Fixed Deposit Certificates of the petitioner alongwith interest on its original account.

(iv) Issue a writ , order or direction commanding the opposite parties to pay the pension to the petitioner each and every month which the same becomes due from the date of retirement and also pay the arrears of the same alongwith interest."

After hearing Sri J.K. Sinha, learned counsel for the petitioner and Sri Gopal Kumar Srivastva, learned counsel for the respondents by means of judgment and order dated 26.3.2012, the writ petition has been dismissed, the operative portion reads as under:-

"Accordingly the petitioner in the instant case cannot derive any benefit from the law as laid down in the case of K. Mohandas and others ( supra) and in the case of Ram Newal ( supra) because in the present case the petitioner has opted for VRS, accepted as per scheme introduced by the Bank known as 'State Bank of India Voluntary Retirement Scheme ' and at that time he had rendered sixteen and half years of service and was of 57 years of age, thus, the case of the petitioner does not fall within the ambit and scope of the Rule 22 of the Rules which provide for the eligibility criteria to get pension in the State Bank of India when the said rule has already been upheld by Hon'ble the Apex Court in the case of Arikaravula Sanyasi Raju ( Supra) and in the case of V. Kasturi (supra). So, I do not find any illegality or infirmity in the impugned orders under challenge in the present writ petition

No other point has been argued or pressed by the learned counsel for the petitioner .

Accordingly, the writ petition lacks merit and is dismissed as such.

No order as to costs."

In view of the said factual backgrounds, present review petition has been filed by the review petitioner with the following grounds:-

"a) Because the Hon'ble Court has not considered the (ii) and (iii) prayer of the writ petition in respect of illegal and arbitrary recovery from the petitioner towards encashment of earned leave already paid to the petitioner.

b) Because the Hon'ble Court while deciding the writ petition over sighted that no recovery could have been made from the fixed deposit certificate of the petitioner.

c) Because this Hon'ble Court ought to have consider that the opposite parties have deprived of encashment of earn leave under the grab of alleged circular contained in annexure no.14 but that cannot be applicable in the case of the petitioner that is only applicable in the case of removal from service.

d) Because the Hon'ble High Court has not considered that when the petitioner has completed 16 ½ years of service in place minimum 10 years . He should not have been deprived of pension only on the ground that instead of completing 58 years. The petitoner has taken voluntary retirement in the age of 57 years. The deficiency of only one year could have been waived as this Hon'ble Court has been pleased to waive the deficiency of period provided in the regulation while granting the pensionary benefit [2010(28) LCD 1556].

e) Because the Hon'ble High Court ought to have consider that where there is beneficial legislation , a liberal view should be taken. Particularly where there is a question of livelihood is involved in view of law laid down in case of D.S. Nakara and others Vs. Union of India [A.I.R. 1983 Supreme court 130]

So far as ground nos. a,b and c on which the review petition has been filed, needless to mention herein that earlier in respect to the same , the relief no.(iii) has been taken in the writ petition filed by the petitioner but while arguing the writ petition, learned counsel for the petitioner neither made any argument nor pressed the same. Thus, after hearing the learned counsel for the parties on the points which were argued and pressed by them, the judgment and order dated 26.3.2012 passed in Writ Petition No.6296(SS) of 2001 moreover in the said judgment it has been categorically mentioned that " No other point has been argued or pressed by the learned counsel for the petitioner."

Sri J.K. Sinha, learned counsel for the review petitioner has very fairly admitted the said fact that he has not argued the said matter in the writ petition regarding the encashment of earned leave, so keeping in view of the said facts as well as the law as laid down by Hon'ble the Apex Court in the case of Oriental Insurance Company Limited Vs. Ram Nath (2005) 10 SCC 596 as under:-

" In the facts and circumstances of the case, we are not inclined to to into the merit of this appeal so far as the quantum of compensation is concerned. So far as the payment of sum of Rs. 50,000/- to the claimant is concerned, it appears that the said sum was awarded by the State Commissioner. Though the same was challenged in the ground of appeal filed before the National Forum but during the course of arguments, the point was not pressed. This being the position, we do not permit the appellant to raise this question before this Court."

Hon'ble the Apex Court in the case of S.N.S. ( Minerals ) Ltd. and another Vs. Union of India and another ( 2007) 12 SCC, 132 has held as under:-

" But the question is whether such a plea was in fact urged. From a reading of the order of the High Court and the Counter affidavit filed before this Court in which it has been specifically urged at paras 9 and 10 that no such argument was advanced, we do not consider this to be a fit case where any interference is called for , considering the limited scope of review.(See: Ganesh Sugar Milla Vs. State of U.P. and others (1986) 1 SCC 623, Life Insurance Corporation of India and others Vs. Jyothish Chandra Biswas (2000) 6 SCC 562 and Rajashthan Agriculture University Vs. Ram Krishna Vyas (1999) 4 SCC 720)"

In the case of Transmission Corporation of A.P Ltd. And others Vs. P. Surya Bhagavan (2003) 6 SCC 353 , the Hon'ble Apex Court has held as under:-

"Question as to whether the respondent was overaged for entry into the service was neither raised in the written statement nor was it argued before the High Court. Under the circumstances the appellant cannot be permitted to raise this point for the first time in this Court. The second point regarding the delay in filing the petition though was raised in the written statement , but, it seems the same was not pressed before the Bench at the time of argument. It has not been stated in th ground of appeal that this point was raised and argued before the Bench during the course of arguments and the Bench had failed to notice the same. In view of this we decline to go into this question as well."

Accordingly the matter in respect to encashment of leave on the basis of ground no. 'a to c' taken in the present review petition, cannot be adjudicated and decided as per the settled position of law as laid down by Hon'ble Supreme Court, thus rejected.

Next point i.e. ground no. 'd' and 'e' on the basis of which the review petition is filed. In this regard Hon'ble the Apex Court in the case of M/s. Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur, AIR 1964 SC 1372, the Apex Court held that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.

Hon'ble the Apex Court in Subhash Vs. State of Maharastra & Another, AIR 2002 SC 2537, the Apex Court emphasised that Court should not be misguided and should not lightly entertain the review application unless there are circumstances falling within the prescribed limits for that as the Courts and Tribunal should not proceed to re-examine the matter as if it was an original application before it for the reason that it cannot be a scope of review.

This Court in the case of Bhagwant Singh Vs. Deputy Director of Consolidation & Another, AIR 1977 All. 163, rejected the review application filed on a ground which had not been argued earlier because the counsel, at initial stage, had committed mistake in not relying on and arguing those points, held as under:-

"It is not possible to review a judgment only to give the petitioner a fresh inning. It is not for the litigant to judge of counsel's wisdom after the case has been decided. It is for the counsel to argue the case in the manner he thinks it should be argued. Once the case has been finally argued on merit and decided on merit, no application for review lies on the ground that the case should have been differently argued."

In Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909, in a review petition filed under Order 47 Rule 1 CPC the Supreme Court held that the power of review under Article 226 of the Constitution of India, in reviewing its own orders, every Court including High Court inheres plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it.

Further, the review lies only on the grounds mentioned in Order 47, Rule 1 read with Section 141 CPC. The party must satisfy the Court that the matter or evidence discovered by it at a subsequent stage could not be discovered or produced at the initial stage though it had acted with due diligence. A party filing a review application on the ground of any other " sufficient reason" must satisfy that the said reason is analogous to the conditions mentioned in the said provision of C.P.C.

Thus, in view of the abovesaid facts, review can be allowed only on (1) discovery of new and important matter of evidence which, after exercise of due diligence, was not within the knowledge of the person seeking review, or could not be produced by him at the time when the order was made, or (2) when some mistake or error on the face of record is found, or (3) on any analogous ground. But review is not permissible on the ground that the decision was erroneous on merits as the same would be the province of an Appellate Court.

In View of the above discussion , the law of review can be summarized that it lies only on the grounds mentioned in Order 47, Rule 1 CPC . The party must satisfy the Court that the matter or evidence discovered by it at a subsequent stage could not be discovered or produced at the initial stage though it had acted with due diligence. A party filing a review application on the ground of any other' sufficient reason' must satisfy that the said reason is analogous to the conditions mentioned in Order 47, Rule 1 CPC. Under the garb of review, a party cannot be permitted to re-open the case and to gain a full-fledged inning for possible for the Court to take a view contrary to what had been taken earlier. Review lies only when there is error apparent on the fact of the record and that fallibility is by the over-sight of the Court.

`Hon'ble Supreme Court in the case of Zahira Habibullah Sheikh Vs. State of Gujarat, (2004) 5 SCC 353, after placing reliance on its earlier judgments i.e. P.N. Eswara Iyer etc. Vs. Registrar Supreme Court of India, (1980) 4 SCC 680; Sutherdraraja Vs. State, (1999) 9 SCC 323; Ramdeo Chauhan Vs. State of Assam, AIR 2001 SC 2231; and Devender Pal Singh Vs. State of NCT of Delhi, AIR 2003 SC 3365; observed that review applications are not to be filed for the pleasure of the parties or even as a device for ventilating remorselessness, but ought to be resorted to with a great sense of responsibility as well.

Keeping in view the above said fact , the next point/ ground nos. 'd' and 'e' which have been taken/argued by review petitioner for review of the judgment and order dated 26.3.2012 passed in Writ Petition No.6296 (SS) of 2011 , the review cannot be allowed.

For the foregoing reasons the review petition lacks merit and is dismissed as such.

Order Date :- 11.4.2013

dk/