Branch Manager Central Bank Of ... vs Ivth.Additional District Judge ...
2016 Latest Caselaw 5473 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

     COURT NO.24
 
RESERVED
 

 

 
				Review Petition No.  68533 of 2016
 
Radhey Shyam Mishra				         .... Review Applicant
 
						Inre:
 

 
Writ Petition No. 143 (SS) of 2000
 
Branch Manager, Central Bank of India, Gonda & anor.  ...Petitioners
 

 
						Versus
 
Ivth Additional District Judge, Gonda and others	...Opposite parties.
 

 
					+++++
 

 
 Hon'ble Dr Devendra Kumar Arora,J.

Heard the applicant, who appears in person and the Counsel for the Bank.

The Review Applicant, namely, Radhey Shyam Mishra, was an employee of Central Bank of India and while being posted in District Gonda, he was placed under suspension w.e.f. 25.1.1983 in contemplation of inquiry. During continuance of disciplinary proceedings, the review-petitioner filed a suit no. 214 of 1983 in the Court of Munsif for injunction, which was rejected on 20.10.1984. As far as disciplinary proceedings are concerned it culminated into passing of punishment order dated 17.9.1984 whereby three increments in time scale of pay were withheld permanently and the petitioner was reinstated in service vide order dated 18.9.1984. On the same day, the petitioner was transferred from Gonda to Pratapur Branch, Deoria.

The record further reveals that disciplinary proceedings initiated with regard to charge sheet dated 29.4.1981 resulted into passing of order of dismissal dated 22.4.1985. The order of dismissal was challenged by the delinquent before the Industrial Tribunal where it was upheld and the Award was published by the Central Government vide notification dated 13.10.1997.

Thereafter, the employee-applicant filed a DCPW case No. 85 of 1985 before the Prescribed Authority with the heading "Application under Sub-section (2) of Section 15 of the Payment of Wages Act read with Section 18 of the Uttar Pradesh Dookan Aur Vainjya Adhisthan Adhiniyam, 1962 for wages from 25.1.1983 to 24.1.1984 alongwith ten times compensation. The Prescribed Authority vide order dated 27.1.1988 allowed the claim of the applicant and awarded a sum of Rs. 9,260/- paise plus six times compensation thereupon, in all Rs. 64,821.12 paise.

Aggrieved by the said judgment and order dated 27.1.1988, petitioner-Bank filed an appeal bearing No. MRA No. 9 of 1988 before the learned District Judge Gonda under Section 17 of the Payment of Wages Act whereas the applicant filed MRA No. 5 of 1988 before the learned District Judge, Gonda for enhancement of compensation. The Appellate Authority vide common judgment and order dated 1.10.1999, dismissed both the appeals upholding the judgment and order dated 27.1.1988 passed by the Prescribed Authority.

Being not satisfied with the judgment dated 1.10.1999, the Bank-employer filed Writ Petition No. 143 (SS) of 2000 inter-alia on the grounds that State Government has issued a notification dated 15.12.1983 whereby all the Commercials Banks within the territory of State of Uttar Pradesh were exempted from the Operation of the provisions of certain provisions of Payment of Wages Act. Further, the State Government has exempted the "Schedule Banks" under the Reserve Bank of India Act from the application of all the provisions of the said Act. Another ground of attack was that the Appellate Authority failed to consider that the applicant while being under suspension, he was only entitled for subsistence allowance which was duly paid to him in conformity with the Shastri Award and Third Bipartite Settlement, thus the contesting opposite party-applicant was not entitled for any claim as Awarded by the court below.

On the other hand, the assertion of the applicant was that the Bank was exempted from the application and operations of the provisions of Section of 1962 Act on 23.5.1985, therefore prior to that date, the provisions of Section 18 of 1962 Act were fully applicable. It was also asserted that the Prescribed Authority has rightly allowed the claim.

This Court after examining the material on record and the submissions advanced by the parties to the writ petition recorded a finding that Prescribed Authority had jurisdiction to entertain the application under- Section 18 of the Act read with Section 15 of 1936 Act with respect to claim of the applicant made in the year 1984. While reaching to the above conclusion, the Court had relied upon a decision rendered in Central Bank of India vs. II ADJ Gonda and others [2016(34) LCD 84]

As regard the payment of wages and compensation to the review-applicant, the Court observed that the Prescribed Authority while allowing the claim of review-applicant had placed reliance upon Supplementary Note (6) of the Third Bipartite Settlement mentioned at Page 105-106 of the Book written by Mr. H.Guru Raja Rao, Vice-President, Syndicate Bank Employees Union Bangalore. A perusal of Annexure-9 to the writ petition, which is a copy relating to residual issues of the Third Bipartite Settlement, shows that after dealing with 'Residual Issue' it contains a separate heading as "Supplementary Note" and at page 105-106, the author has given its own view with regard to payment of full pay and allowance instead of suspension allowance, in case an employee is not permitted by the Management to leave the headquarter during the period of suspension. Therefore, the court recorded a finding that the order for payment of wages and compensation has been given on a wrong premise based on the 'Supplementary Note' and not on actual provisions of the Third Bipartite Settlement.

In the background of the aforesaid reasons, this Court quashed the order dated 1.10.1999 as also the Award dated 27.1.1998 passed by the Prescribed Authority.

Now, the petitioner-employee has filed the instant Review Petition seeking review of the judgment and order dated 9.6.2016 passed in Writ Petition No. 143 (SS) of 2000; Branch Manager, Central Bank of India inter-alia on the grounds that the suspension order dated 22.1.1983 was served upon the petitioner without first serving the charge-sheet, which was served upon him later on i.e. 5.2.1983, which was against the provisions of Para 19.12.(b) of the First Bipartite Settlement dated 19.10.1966. Furthermore, the said order of suspension was illegal, void and without jurisdiction. It has also been contended that as per proviso-3 of the Rule 14(2) (c) of the Industrial Employment (Standing Orders) Central Rules, 1947, the review-applicant was entitled to get his full wages during the period of his suspension i.e. from 25.1.1983 to 24.1.1984 as on conclusion of the domestic inquiry under the charge-sheet dated 5.2.1985, his three increment were permanently stopped by the Chief Manager, Gorakhpur.

Apart from above assertion, the review-applicant, who appears in person, took me a round to all the events which had taken place from the date of suspension to the date of passing of the judgment under review and asserted that he is entitled for payment of wages and compensation as granted by the Prescribed Authority vide Award dated 27.1.1988 and therefore, the impugned judgment may be reviewed accordingly and the writ petition is liable to be dismissed.

Before dealing with the Review Petition, it is relevant to mention that before being awarded punishment, disciplinary proceedings were initiated and the applicant was placed under suspension. There is no dispute to the fact that the applicant had filed a Suit NO. 214 of 1983 in the Court of Munsif, Gonda for injunction and did no co-operate in the conduction of the disciplinary proceedings. Therefore, in view of the Circular dated 25.10.1983, the applicant was held to be not entitled for full wages as subsistence allowance after one years of his period of suspension. It may be clarified that the Circulate dated 25.10.1983 provides modified Paragraph 557 of the Sastry Award relating to the subsistence allowance, in pursuance of Bipartite settlement dated 8.9.1983. As per the modified paragra 557 of the Sastry Award, it has been provided that "where the investigation is not entrusted to or taken up by an outside agency i.e. Police-Central Bureau of Investigation), the subsistence allowance will be payable at the following rates:-

(a) For the First three months 1/3rd of pay and allowance which the workman would have got but for suspension.

(b) Thereafter ½ of the pay and allowances;

(c) After one year, full pay and allowances if the inquiry is not delayed for reasons attributable to the concerned workman or any of his representatives.

It is the definite stand of the employer that the applicant had not cooperated in disciplinary proceedings and with a view to thwart the disciplinary proceedings, the applicant filed a suit bearing no.214 of 1983 on a wrong premise. In these circumstances, he was only paid ½ pay and allowance towards subsistence allowance.

There is also no dispute to the fact that vide order dated 18.09.1984 the applicant was reinstated. Imposition of punishment of stoppage of three increments permanently was passed vide order dated 17.09.1984. The following terms and conditions for reinstatement were mentioned in the order dated 18.09.1984:

	"1. That the payment of any difference between 	actual pay	   	and subsistence allowance paid during the period 	of suspension shall not be paid.
 

 
2. That Shri Mishra shall be treated as reinstated in service on the date when he reports for duty at Gonda Branch.
 
3. That Shri Mishra after reinstatement in service will discharge his duties with utmost sincerity, honesty and devotion.
 
4.  That Shri Mishra should note that on his reporting at	Gonda Branch, he will be informed of his further posting."
 
              
 

From the aforesaid punishment order, it clearly emanates that the applicant was not entitled for payment of any difference between actual pay and subsistence allowance paid during the period of suspension. The said order of denying payment of any difference was not assailed any where by the applicant and it has attained finality. At this juncture, it would be relevant to mention that in Writ Petition No. 719(SS) of 1998 [decided on 30.12.2015 by this Court] the applicant was denied bonus, which was held to be illegal as the employer has not paid the bonus wrongly relying upon the Circular dated 5.8.1985 overlooking the provisions relating to disqualification for payment of bonus as provided in Section 9 of 1965 Act. Further, no provision of Act was brought to the notice of the court which entitled the employer to add or include some other conditions which may disqualify an employee for bonus, over and above what is prescribed in Section 9 of the Act. The facts of the instant case are entirely different. Here, the action of authorities in not paying the wages relating to the period of suspension is wholly in consonance with the provisions of Circular and Bipartite Agreement.

As far as the Review applications/petitions are concerned, 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 record.

In Aribam Tuleshwar Sharma v. Aibam Pishak Sharma (1979) 4 SCC 389, the Apex Court while answering the question whether the High Court can review an order passed under Article 226 of the Constitution and proceeded to observe: -

"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 powers.

In Meera Bhanja (Smt) vs. Nirmala Kumari Choudhury (Smt) [(1995)1SCC 170] the Hon'ble Supreme Court has held that the review petition has to be entertained only on the ground of error apparent on the face of record and not on any other ground.

The Hon. Supreme Court while reiterating the above view in Parsion Devi Vs Sumitra Devi 1997(8)SCC 715 observed that under Order 47 Rule 1 C.P.C. a judgment may be open to review if there is a mistake or error apparent on record. An error which is not self evident and has to be detected by process of reasoning can hardly be said to be an error apparent on face of record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. Order 47 Rule 1 CPC is a rider on the power of the Court, which passed the order. In exercise of jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be re-heard and corrected. On the aforesaid acid test it is settled position that a review petition has a limited purpose and cannot be allowed to be "an appeal in disguise".

Again in Haridas Das Vs. Usha Rani Banik (2006) 4 SCC 78 the Apex Court while examining the scope of a review observed that a perusal of the Order XLVII, Rule 1 show that review of a judgment or an order could be sought : (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of record or any other sufficient reason.

In State of West Bengal Vs. Kamal Sengupta (2008) 8 SCC 612 the Apex Court while summarizing the scope of the power of review observed as under:-

"14. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justiciae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court earlier.

15. 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 self-evident 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 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 concerned Court/Tribunal cannot sit in appeal over its judgment/decision."

I have gone through the contents of review petition, a perusal of which reveals that the review petitioner has in fact tried to persuade the Court for re-hearing and re-appraisal of the matter, which is not permissible under the review jurisdiction of this Court. No element of Order 47 Rule 1 C.P.C is present in the review petition. In other words the applicant has failed to point out any error apparent on the face of record and it appears that he wants re-hearing of the case under the garb of the application, which is not permissible. The matter cannot be reopened, re-heard or re-appraised as per law laid down by the Hon'ble Supreme Court in 1995 (1) SCC 170, Meera Bhanja (Smt.) Vs. Nirmal Kumari Chaudhary, AIR 1980 SC 647 Northern India Caterers Vs. Lt. Governor Delhi, 1998 SCD 85 (DB) U.P. Pharmacy Council Vs. Yashkaran Singh and this Court in 2005 (3) AWC 2601, Smt. Krishna Pathak Vs. Vinod Shanker Tiwari & others. Accordingly, no case for reviewing the judgment is made out.

For the reasons aforesaid, the review application is devoid of merits and it is hereby rejected.

Dated: 24th August, 2016

MH/-