Bombay High Court
Shri Jyotiba Phule Seva Trust ... vs Sambhaji Maruti Gutte And Others on 7 January, 2022
Bench: Mangesh S. Patil, M. G. Sewlikar
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
REVIEW APPLICATION NO. 93 OF 2021 IN
WRIT PETITION NO. 8439 OF 2018
Shri Jyotiba Phule Seva Trust
& another Applicants
Versus
Shri Sambhaji Maruti Gutte & others Respondents
Mr. Kedar Warad, Advocate holding for Mr. P.G. Gunale, Advocate for
the applicants.
Mr. A.V Indrale Patil, Advocate for petitioner in Writ Petition.
Mr. V.S. Panpatte, Advocate for respondent No. 3 (Absent).
CORAM : Mangesh S. Patil &
M.G. Sewlikar, JJ.
DATE : 7th January, 2022.
PER COURT : ( Per M.G. Sewlikar, J.)
1. This review petition is preferred by original respondents
No. 4 and 5 to review the order in Writ Petition No. 8439/2018 passed
by this Court on 5th April, 2021 to which one of us (M.G. Sewlikar, J.)
was a party.
2. Briefly stated, facts leading to this review application are
as under :-
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Respondent No. 1 was appointed as Peon in applicant No.
2 - school in the year 1992. Respondent No. 4 (original respondent
No. 3) granted permanent approval to the appointment of petitioner
as Peon. Respondent No. 1 came to be terminated without following
the due process of law by applicants No. 1 and 2 with effect from 16 th
February, 2002 vide order dated 16th July, 2002. Being aggrieved by
the order of termination from service dated 16 th July, 2002,
respondent No. 1 preferred appeal before the Divisional Social Welfare
Officer, Aurangabad Division, Aurangabad i.e. respondent No. 3
herein being the appellate authority. Vide order dated 30 th November,
2005, termination order of petitioner was set aside with further
direction to reinstate respondent No. 1 in service. By the same order,
applicant No. 1 was permitted to initiate appropriate proceedings in
accordance with law for alleged mis-conduct. Applicants No. 1 and 2
allowed respondent No. 1 to join duties with effect from 13th
December, 2005. Immediately on the next day, i.e. on 14 th December,
2005, applicant No. 1 placed respondent No. 1 under suspension,
pending initiation of Departmental Enquiry. The said order mentions
that respondent No. 1 would be entitled to admissible subsistence
allowance.
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3. According to respondent No. 1, on 2nd January, 2006,
applicant No. 1 issued a letter to respondent No. 1 informing him
that a Departmental Enquiry was contemplated against him.
However, the proposed enquiry never took off and no enquiry was
drawn up against respondent No. 1. Respondent No. 1 continued to
remain under suspension. However, he was not paid the subsistence
allowance.
4. When respondent No. 1 insisted upon applicants No. 4
and 5 for payment of subsistence allowance, it was shown that
respondent No. 1 was working in the post of Watchman in applicant
No. 2 - school on contract basis and approval to such appointment
was obtained from the concerned District Social Welfare Officer. On
17th September, 2007, applicant No. 1 made a representation to
respondent No. 4 herein for revocation of the order of suspension.
However, no such steps seem to have been taken on the said
representation. Therefore, respondent No. 1 filed Writ Petition No.
8439/2018 seeking relief of quashing of suspension order dated 14 th
December, 2005 and payment of subsistence allowance for the
suspension period along with interest.
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5. Applicants No. 1 and 2 filed a common affidavit-in-reply.
The stand of applicants No. 1 and 2 was that the petition suffers from
delay and laches. It is their contention that respondent No. 1 was
terminated vide order dated 16th July, 2002 on account of kidnapping
of a girl student. One Madhav Tukaram Mundhe came to be
appointed on the post of Peon with effect from 17 th July, 2002 and
since then, said Mundhe is in continuous service. They contended
that since there was no vacant post of Peon in applicant No. 2 -
school, respondent No. 1 was not allowed to join any permanent post
but on paper only it was shown that he was allowed to join.
Respondent No. 1 was placed under suspension vide order dated 14 th
December, 2005. Respondent No. 1 was allowed to join duties by way
of sympathy only. Applicants No. 1 and 2 further contended in writ
petition that there was an amicable settlement between respondent
No. 1 and applicants No. 1 and 2 whereby applicant No. 1 assured
respondent No. 1 to appoint respondent no. 1 in Class-IV post.
Respondent No. 1 agreed to this proposal. By way of this settlement,
respondent No. 1 agreed that he would not claim salary and
subsistence allowance in the post of Peon. From January 2006 to
May 2013, respondent No. 1 worked in the hostel of applicant No. 2 -
school on honorary basis and honorarium for the said period has
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been paid to him.
6. According to applicants No. 1 and 2, vide order dated 11 th
June, 2013, respondent No. 1 came to be appointed to the post of
Watchman with effect from 18th June, 2013 and approval to such
appointment was granted by respondent No. 3. According to
applicants No. 1 and 2, from 18 th June, 2013, respondent No. 1 is in
service of applicant No. 2 school in the post of Watchman and
receiving regular salary.
7. Respondent No. 1 filed rejoinder and denied that he was
posted as Watchman and that there was such amicable settlement.
8. This Court, after hearing arguments of learned counsel
for both the sides, dismissed the writ petition holding that
respondent No. 1 was appointed on a permanent vacant post of Peon.
His services were terminated. Said order of termination was
challenged before respondent No. 4 herein and termination order was
set aside. This Court held that respondent No. 4 herein gave liberty
to applicants No. 1 and 2 to initiate Departmental Enquiry against
respondent No. 1 herein. This Court, further held that this order of
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respondent No. 4 was not challenged before the appropriate forum.
Therefore, it attained finality. This Court further held that
respondent No. 1 was allowed to join the duties and was placed
under suspension from the next day and the suspension has not
been revoked. This Court further held that the legal consequence of
an employee being placed under suspension is that he continued to
retain lien over the said post. The vacancy caused in the post due to
suspension of the incumbent is temporary during the period of
suspension. This Court further held that when a post falls vacant
due to suspension of an incumbent, such vacancy is purely
temporary and cannot be filled in as a permanent post. Any
appointment made to such a vacancy would be subject to the
outcome of suspension. This Court held that if suspension is
revoked, the subsequent appointee will have to move out.
Accordingly, this Court allowed the writ petition and set aside and
quashed suspension order of respondent No. 1 and further directed
respondent No. 1 to be reinstated in applicant No. 2- school forthwith
and applicants No. 1 and 2 were also directed to pay subsistence
allowance to respondent No. 1 for the period he remained under
suspension within a period of three months from the date of receipt
of copy of the order. It was further directed that applicants No. 1 and
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2 shall take decision as to regularisation of the services of
respondent No. 1 during the period of suspension which would be
without prejudice to any decision that respondents No. 4 and 5 may
take regarding holding of departmental proceedings against
respondent No. 1 in accordance with law.
9. Heard Shri Warad, learned counsel holding for Shri
Gunale, learned counsel for the applicants and Shri Indrale Patil,
learned counsel for respondent No. 1. Shri Panpatte, learned counsel
for respondent No. 3 was absent.
10. Learned counsel Shri Warad submitted that respondent
No. 1 was placed under suspension on 14th December, 2005.
Respondent No. 1 challenged this order of suspension in the year
2008. He submitted that there was huge delay of 13 years in
challenging the order of suspension. He submitted that this Court,
while deciding Writ Petition No. 8439/2018, did not consider the
aspect of delay and laches though the same had been pleaded and
argued. He further submitted that there was amicable settlement
between respondent No. 1 and applicants No. 1 and 2 and, by way of
amicable settlement, respondent No. 1 was appointed as Watchman
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and he continued to work as Watchman till filing of the writ petition.
According to learned counsel Shri Warad, respondent No. 1 has been
paid salary as a Watchman. Therefore, the question of payment of
subsistence allowance to respondent No. 1 never arose. He further
submitted that respondent No. 1 had filed Writ Petition No.
7832/2019 for quashing of cancellation of approval to the post of
Watchman. It was the stand of respondent No. 1 that he never
signed the said petition and did not get himself deleted. He
submitted that this clearly shows that respondent No. 1 was
appointed as a Watchman. But this Court did not appreciate this
fact in proper perspective. Learned counsel Shri Warad placed
reliance on the case of State of Jammu and Kashmir vs. R.K. Zalpuri
and others reported in (2015)15 Supreme Court Cases 602.
11. Review is permissible when there is an error apparent on
the face of the record. Error apparent on the face of record means an
error which strikes one on mere looking at record and would not
require any long drawn process of reasoning. For finding out whether
there was any error apparent on the face of record, it is
impermissible to look into the documents. Mere wrong appreciation
of evidence cannot be a ground for review. In the matter of Parsion
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Devi v. Sumitri Devi, (1997)8 SCC 715, the Honourable Apex Court
held as under :-
"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
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."
Power of review can also be exercised by the Court in the
event of discovery of a new matter or evidence, despite exercise of due
diligence, was not within the knowledge of the party or could not be
produced by the party at the time when the order was made.
12. The position that emerges is that review Court does not
sit in appeal over its own order. Rehearing of the matter is
impermissible in law. It is impermissible for an erroneous decision to
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be reheard and corrected.
13. The submissions which learned counsel for the review
applicants has advanced have already been considered by this Court
while delivering the judgment under review. This Court observed
that respondent No. 1 was placed under suspension on 14 th
December, 2005. He made representation to respondent No. 4 in the
year 2007 for revocation of suspension. This Court also observed
that though respondent No. 1 was placed under suspension,
disciplinary proceedings were never initiated. This Court has dealt
with this aspect of the matter in paragraph No. 35 of the judgment
which is quoted hereunder for facility of reference :
"35. In the present case petitioner was placed
under suspension on 14-12-2005. More than fifteen
years have gone by since then. During this entire
period neither has he been paid any subsistence
allowance nor any departmental proceeding has
been initiated against him. By any standard, fifteen
years is a long period in the service life of an
employee. Though initial suspension of the
petitioner might have been justifiable but such
prolonged suspension that too without holding any
departmental proceeding and without payment of
subsistence allowance has become arbitrary and
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oppressive. As rightly pointed out by this Court in
the order dated 13-06-2019, such a situation cannot
be allowed to continue. "
14. Respondent No. 1 was placed under suspension for a
period of fifteen years and no Departmental Enquiry was initiated for
this period. Respondent No. 1 was not guilty of delay and laches.
Rather applicants No. 1 and 2 are guilty of delay and laches as they
placed respondent No. 1 under suspension for fifteen years and did
not initiate any Departmental Enquiry against him and did not pay
subsistence allowance either.
15. So far as amicable settlement is concerned, respondent
No. 1 has specifically denied in rejoinder filed by him that there was
such amicable settlement and that he was appointed on the post of
Watchman. This being a disputed fact, cannot be gone into while
deciding the review petition.
16. We have carefully gone through the decision of
Honourable Apex Court in the case of State of Jammu and Kashmir
vs. R.K. Zalpuri (supra), the facts were completely different. In that
case, the High Court had not gone into the question of delay and
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laches at all. This is not the position in the case at hand. As
indicated earlier, this Court has elaborately dealt with the aspect of
delay and laches.
17. Learned counsel Shri Indrale Patil brought to our notice
the event post decision of this Court in Writ Petition No. 8439/2018.
He placed on record communication dated 11 th September, 2021.
From this communication it appears that in accordance with
directions of this Court, applicant No. 1 initiated enquiry against
respondent No. 1, thereafter applicant No. 1 terminated the services
of respondent No. 1 since he did not give his reply within seven days.
This communication shows that Enquiry Committee was established
in accordance with the directions of this Court in Writ Petition No .
8439/2018. This demonstrates that applicant No. 1 initiated
Departmental Enquiry against respondent No. 1 in accordance with
the directions given by this Court. This shows that applicant No. 1
accepted the part of the order and seeking the remaining part of the
order to be reviewed. This is impermissible in the facts and
circumstances of the present case. Directions of this Court were that
applicants No. 1 and 2 shall pay subsistence allowance and to initiate
Departmental Enquiry if applicants No. 1 and 2 deemed it fit. When
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applicant No. 1 initiated Departmental Enquiry against respondent
No. 1, it clearly goes to show that applicants No. 1 and 2 admit that
suspension of respondent No. 1 was not revoked. Therefore, when
the direction of this Court regarding initiation of Departmental
Enquiry is implemented, it goes to show that applicant No. 1 also
admits that respondent No. 1 was placed under suspension and it is
still not revoked. For this reason also, review is not maintainable.
18. The application does not fall within the parameters of
review as observed by the Honourable Apex Court in the matter of
Parsion Devi v. Sumitri Devi (supra). What the applicants wanted is
rehearing of the matter which is impermissible.
19. For the forgoing reasons, review in the facts and
circumstances of this case, is not maintainable. Review application
is devoid of any substance hence it is dismissed.
( M. G. SEWLIKAR ) ( MANGESH S. PATIL )
Judge Judge
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