P.N. Saluja vs State Bank Of India
2012 Latest Caselaw 553 Del

     *       IN THE HIGH COURT OF DELHI AT NEW DELHI
     %          Review Petition No. 380/2011 in W.P(C)1300/1988
     +                            Date of Decision:     27th January, 2012

     #      P.N. SALUJA                                         ....Petitioner
     !                          Through:     Petitioner in person

                                      Versus


     $      STATE BANK OF INDIA                              ....Respondent
                        Through:             Mr. Rajiv Kapur & Ms. Vatsala
                                             Rai, Advocates.

           CORAM:
     *      HON'BLE MR. JUSTICE P.K.BHASIN

                                      ORDER

P.K.BHASIN, J:

This review petition under Section 151 of the Code of Civil Procedure has

been filed by the petitioner, who is a dismissed employee of the respondent State

Bank of India and who had filed a writ petition for quashing of entire disciplinary

proceedings initiated against him for some acts of misconduct in the eighties and

which had culminated into imposition of the penalty of his dismissal from

service, and he is seeking review of the judgment dated 13th January, 2011 passed

by me whereby the order dated 21st November, 1985 of the appellate authority of

the respondent bank confirming the decision of the disciplinary authority taken on

24th July, 1985 dismissing him from service, was set aside as it was found to be a

non-speaking order and the appellate authority was directed to pass a fresh

speaking reasoned order.

2. The brief facts which only are relevant for the disposal of this review

application be noticed. The petitioner during his employment with the respondent

bank had been charge-sheeted on certain allegations of misconduct. He had

refuted all the charges levelled against him in his reply and as the same was not

found to be satisfactory the disciplinary authority ordered a departmental enquiry

against him. The enquiry officer accepted the respondent bank's evidence and

held the petitioner guilty of the charges levelled against him. The disciplinary

authority concurred with the findings of the enquiry officer and imposed the

major penalty of his removal from the services of the respondent bank. The

appeal filed by the petitioner before the appellate authority was rejected.

3. The petitioner then approached this Court by filing the present writ petition

challenging the entire departmental proceedings held against him including the

decision of the enquiry officer, disciplinary authority as well as the appellate

authority on various grounds one of which was that the appellate authority had

not passed a speaking order after considering each of his grounds of appeal.

4. This Court after hearing the arguments from both the sides had passed an

order dated 13th January, 2011 without going into the merits of the challenge of

the authority to pass a fresh speaking order in the appeal of the petitioner.

5. Thereafter, the appellate authority passed fresh order dated 25.05.2011 and

once again upheld the decision of the disciplinary authority.

6. Then the petitioner filed this application describing it as a review

application and alongwith the application he annexed a copy of the fresh order

passed by the appellate authority of the respondent bank in his appeal. The

petitioner prayed for review of the order dated 13th January, 2011 earlier passed in

his writ petition by me.

7. The respondent bank opposed this review application and filed its reply

wherein it was claimed that this review application is not maintainable as grounds

provided under Order XLVII Rule 1 of the Code of Civil Procedure have not been

made out for the review of the order dated 13th January, 2011 passed in the writ

petition and if at all the petitioner feels aggrieved even with the decision taken by

the appellate authority after remand then he should initiate fresh legal proceedings

to challenge the same. These very objections were pressed into service even

during the hearing of the review application by the learned counsel for the

respondent bank. Learned counsel relying upon the following para of the order

dated 13th January, 2011 had contended that since this Court has already finally

disposed of the writ petition it has become functus officio and the petitioner has

no other option but to file a fresh writ petition even if that process might consume

years:

"Therefore, this writ petition is disposed of by setting aside the order dated 21st November, 1985 of the Appellate Authority and following the decision of the Supreme Court in two of its judgments referred to already (2009 (4) SCC 240 and 2002 (2) SCC 290). The matter is remanded back to the appellate authority of the respondent bank for deciding the appeal filed by the petitioner herein afresh in accordance with law by passing a speaking order. That should be done within a period of three months from today. The petitioner shall be entitled to the costs of this petition."

8. On the other hand, the petitioner, who has been fighting this battle in person

for years, contended that as far as his challenge to the very initiation of

disciplinary proceedings, enquiry officer's findings and disciplinary authority's

decision on the merits is concerned this Court had not gone into the merits and

had simply vide order dated 13th January,2011 required the appellate authority to

pass a fresh speaking order in his appeal which it has done now and, therefore, all

that he is now praying to this Court is to give a final judgment on the merits of the

writ petition, one way or the other. He further contended that if he is called upon

to file a fresh writ petition after he had already waited for more than two decades

to get a decision on merits that would be a total denial of justice to him instead of

this Court doing complete justice in the matter.

9. After having heard the arguments made by the applicant and counsel for the

respondent bank I have come to the conclusion that the arguments made on behalf

of the respondent bank by its counsel cannot be accepted. Though in the

application it is stated that the order dated 13th January, 2011 should be reviewed

but infact it is more than evident from the facts and circumstances of the case and

what was urged during the hearing of this application that all that the applicant

wants from this Court is a disposal of his writ petition on merits after the fresh

decision of the appellate authority since earlier this Court had not even gone into

the merits of his challenge against his dismissal from service. There is no doubt

that this Court had while directing the appellate authority of the respondent bank

to pass a speaking order in petitioner's appeal had said that, "This writ petition is

disposed of....................." but at that time it was never intended by this Court that

whatever fresh decision the appellate authority would be taking would be

accepted by the petitioner as correct under all circumstances. That order of the

appellate authority had to be still approved or rejected by this Court. The order

dated 13th January, 2011 was infact intended to be in the nature of a limited

remand of the matter to the appellate authority though not said so by the Court

specifically at that time and infact should have been said clearly in that order that

the writ petition shall be taken up again by this Court on the passing of fresh

order by the appellate authority. However, that error on the part of this Court,

which is now being sought to be encashed by the respondent bank for its own

benefit, cannot come in the way of the petitioner in getting his writ petition

decided on its merits. He certainly cannot be required, after he had waited for

more than two decades to get justice, to start his legal battle all over again. That

would be really travesty of justice.

10. So, this Court being a Court of plenary jurisdiction is expected to undo its

error which cause's irreparable injury to some litigant and to render complete

justice between the litigating parties and this Court has the powers to do complete

justice. This power has now been recognised by the Apex Court in many of its

judgments, reference to some of which can be usefully made at this juncture. In

"Gujarat Steel Tubes Ltd. Etc. Vs Gujarat Steel Tubes Mazdoor Sabha and

others", AIR 1980 Supreme Court 1896 wherein while dealing with the

powers of the High Court under Article 226 of the Constitution of India it was

held by the Hon'ble Supreme Court that :

"146. In the second chapter of our sum up, the first thing we decide is that Article 226, however restrictive in practice, is a power wide enough, in all conscience, to be a friend in need when the summons comes in a crisis from a

victim of injustice ; and, more importantly, this extraordinary reserve power is unsheathed .........................................................................."

11. Fifteen years thereafter also the Hon'ble Supreme Court while considering

its own powers under Article 141 and the powers of the High Courts under Article

226 of the Constitution of India in the case of "B.C. Chaturvedi v. Union of

India", (1995) 6 SCC 749 had observed as follows:

21............................. No doubt, Article 142 of the Constitution has specifically conferred the power of doing complete justice on this Court, to achieve which result it may pass such decree or order as deemed necessary; it would be wrong to think that other Courts are not to do complete justice between the parties. If the power of modification of punishment/penalty were to be available to this Court only under Article 142, a very large percentage of litigants would be denied this small relief merely because they are not in a position to approach this Court, which may, inter alia, be because of the poverty of the concerned person. It may be remembered that the framers of the Constitution permitted the High Courts to even strike down a Parliamentary enactment, on such a case being made out, and we have hesitated to concede the power of even substituting a punishment/penalty, on such case being made out. What a difference? May it be pointed out that Service Tribunals too, set up with the aid of Article 323-A have the power of striking down a legislative act.

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23. It deserves to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh's case : AIR (1963) SC 1909, that the High Courts too can exercise power of review, which inheres in every Court of plenary jurisdiction. I would say that power to do complete justice also inheres in every Court, not to speak of a Court of plenary jurisdiction like a High Court. Of course, this power is not as wide which this Court has under Article 142. That, however, is a different matter.

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25. No doubt, while exercising power under Article 226 of the Constitution, the High Courts have to bear in mind the restraints inherent in exercising power of judicial review..............................................................................................

26. I had expressed my unhappiness qua the first facet of the case, as Chief Justice of the Orissa High Court in paras 20 and 21 of Krishna Chandra v. Union of India AIR1992Ori261 (FB), by asking why the power of doing complete justice has been denied to the High Courts? I feel happy that I have been able to state, as a Judge of the Apex Court, that the High Courts too are to do complete justice. This is also the result of what has been held in the leading judgment."

12. In yet another judgment in the case of "M.M.Thomas vs State of Kerala",

AIR 2000 SC 540, it was held by the Hon'ble Supreme Court in respect of the

extent of powers of High Courts while exercising its writ jurisdiction under

Article 226 as under:

"14. High Court as a Court of Record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A Court of Record envelopes all such powers whose acts and proceedings are to be enrolled in a perpetual, memorial and testimony. A Court of Record is undoubtedly a superior Court which is itself competent to determine the scope of its jurisdiction. The High Court, as a Court of Record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High Court's power in that regards is plenary. in Naresh Sridhar v. State of Maharashtra [1966]3SCR744 , a nine Judge Bench of this Court has recognised the aforesaid superior status of the High Court as a Court of plenary jurisdiction being a Court of Record.

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16. Referring to the said passage and relying on the decision of this Court in Naresh Shridhar Mirajkar [1966]3SCR744 (supra.) a two Judge Bench of this Court in M.V. Elisabeth v. Karwan Investment and Trading Pvt. Ltd. [1992]1SCR1003 , has observed thus (Para 67 of AIR):

"The High Courts in India are superior Courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction.............................."

17. If suo power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequence is that the superior status of the High Court will dwindle down. Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of record."

(emphasis laid)

13. Now in a very recent decision rendered by the Hon'ble Supreme Court in

"State of Orissa vs Mamata Mohanty", (2011) 3 SCC 436 it has been held that

the High Court must correct errors committed by it instead of allowing it to

remain on record. This is what it was held:

"This principle also applies to judicial pronouncements. Once the court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the court to rectify the mistake rather than perpetuate the same. While dealing with a similar issue, this Court in Hotel Balaji and Ors. v. State of A.P. and Ors. ,AIR 1993 SC 1048 observed as under:

..................To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v. Delameter (A.M.Y. at page 18: `a Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors."

. (emphasis laid)

14. Therefore, without rewriting the concluding paragraph of the earlier dated

13th January, 2011, though this Court has the power to do that also, this Court

feels that complete justice would be done in this matter only if the writ petition

now on receipt of fresh decision of the appellate authority of the respondent bank

is decided on merits by taking up the file of the writ petition on board. It is

ordered accordingly. This application stands disposed of accordingly. This writ

petition be now listed for hearing on 24th February, 2012.

P.K. BHASIN,J

January 27, 2012 sh