The State Of Madhya Pradesh vs Vishnu Prasad Maran
2021 Latest Caselaw 738 MP

       HIGH COURT OF MADHYA PRADESH
1                                                          RP No.129/2021

                        RP No.129/2021
    (State of M.P. and Another Vs. Vishnu Prasad Maran and Anr.)
Indore, Dated : 16.3.2021
      Shri Pushyamitra Bhargava, learned Addl. A.G. for the
review petitioners.

      Shri A.K. Sethi, learned Senior Counsel with Shri Kamal
Tiwari, learned counsel for the respondent No.1.

With the consent, finally heard.

This review petition seeks review of judgment dated 19.1.2021 passed in Writ Appeal No.1280/2020.

The respondent/petitioner filed WP No.9838/2018 which was decided by learned Single Judge on 17.9.2019. The writ Court opined that a departmental enquiry pending against the petitioner for a long period of 8 years, which ended with imposition of minor punishment of censure, cannot deprive him from the fruits of promotion even after his retirement. In addition the writ Court issued the following directions:-

"(1) The respondents are directed to open the sealed cover of the DPC meeting, which was held on 9.2.2015 and on the basis of such recommendations, the petitioner be promoted from the post of Joint Registrar to the post of Additional Registrar w.e.f. 19.3.2015 along with all consequential benefits within a period of three months from the date of receipt of the certified copy of this order;

(2) That, in the present case, the petitioner had retired on 31.3.2017 and the PPO was issued on 7.5.2018. Relying on the judgment passed by this Court in the case of Shiv Kumari Dubey vs. State of M.P. and others reported in 2005 (1) M.P.L.J. 274; the petitioner is entitled to get interest at the rate of 6% on the amount of pension, gratuity and other retiral dues;

(3) The respondents are further directed to pay the arrears of 7th Pay Commission along with the interest."

HIGH COURT OF MADHYA PRADESH

The petitioner unsuccessfully filed Writ Appeal which was dismissed on 19.1.2021. Learned AAG submits that in writ appeal IA No.74/2021 for amendment was filed on 4.1.2021. In the order-sheet dated 5.1.2021 of WA No.1280/2020 the government counsel informed the Court that an amendment application and additional documents have been filed. The Registry was directed to place the said application on record. On the next date i.e. 12.1.2021 the government counsel had undertaken to supply copy of amendment application to Shri Sethi, learned senior counsel. Thereafter the said IA was not pressed and brought to the notice of this Court. The writ appeal was decided on merits on the basis of twin points raised by the government.

Learned counsel for the State by taking this Curt to the record of writ petition submits that the proceedings of Departmental Promotion Committee (DPC) dated 9.3.2015 were filed as Annexure P/11. A plain reading of Clause 14 of the said proceeding makes it clear that the fate of the present respondent was kept in the sealed cover for twin reasons-(i) Departmental proceeding is pending against him, (ii) Challans have been filed before the criminal court.

Shri P. Bhargava, learned AAG submits that the original petitioner was well aware about the reasons for keeping his fate in the sealed cover and, therefore, in all fairness he should have disclosed the factum of filing of Challans against him, which were filed way back in the year 2012 (in precise on 17.8.2012 and 28.3.2012). The respondent deliberately suppressed this fact, which he should have disclosed in the writ petition itself. Thus, he obtained the order of writ court by fraud and has not approached the court with clean hands.

Learned AAG for the State further submits that the amendment application could not be pressed because of a mistake committed by the arguing counsel. However, the facts HIGH COURT OF MADHYA PRADESH

intended to be brought to the notice of the Division Bench were relevant for adjudication of writ appeal. Error of this nature also falls within the ambit of Order 47 Rule 1 CPC. Reliance is placed on the judgment in the case of Inderchand Jain Vs. Motilal reported in 2009(14) SCC 663 and in the case of S. Bagirathi Ammal Vs. Palani Roman Catholic Mission reported in 2009(10) SCC 464. Lastly it is submitted that the State is not aggrieved by the order of learned Single Judge and order of Division Bench dated 19.1.2021 to the extent the punishment order and disciplinary proceedings were found to be faulty. The government is aggrieved only to the extent consequential benefits of opening of sealed cover and other benefits were directed to be given. These benefits, submits Shri Bhargava are not available to an employee who was facing criminal cases and on the date of DPC Challans were already in existence.

Per contra, Shri Sethi, learned senior counsel for the respondent submits that Para-2 of judgment dated 19.1.2021 makes it clear that only two points were pressed by the arguing counsel for the State. This Court in Para-5 of judgment made it clear that no other point was pressed by the parties. Thus there exists no error apparent in the judgment which necessitated any review.

Learned senior counsel further submits that under the garb of review the State cannot be permitted to agitate an issue which could have been raised by them while filing reply in the main case. In the writ petition the singular reason assigned in the impugned order for non promotion of present respondent was a disciplinary proceeding and punishment of censure imposed consequent upon it. The State being custodian of record should have disclosed this fact in the return of writ petition.

HIGH COURT OF MADHYA PRADESH

By placing reliance on the judgment in the case of State of Haryana and others Vs. M.P. Mohla [(2007) 1 SCC 457], in the case of Asharfi Devi Vs. State of U.P. and others [(2019) 5 SCC 86] and in the case of Haridas Das Vs. Usha Rani Banik [(2006) 4 SCC 78], Shri Sethi, learned senior counsel for the respondent submits that an erroneous order can be subject matter of challenge in appeal but the same cannot be subject matter of review. In review a denovo point cannot be permitted to be raised. This point of pendency of Challan etc. is a denovo point which was never raised. Hence review petition may be dismissed.

We have heard learned counsel for the parties at length and perused the record.

There is no dispute that an IA No.74/2021 was filed, wherein the petitioner prayed for following amendment:-

"4-A. That, the learned Writ Court failed in considering that the name of the petitioner was kept in the waiting list of the unreserved category and it is incorrect to say that the name of the respondent was in the selected 4 names recommended for promotion. The same is revealed from the document Annexure P/11 filed by the petitioner, which are the proceedings of the meeting of the DPC dated 9.3.2015.

4-B. It is also pertinent to mention here that there are various criminal cases pending against the petitioner instituted by the Lokayukt Police, Bhopal namely Crime No.26/2006, 28/2006 and 346/2014 in which sanction for prosecution has been given by the State Government on 17.8.2012, 28.3.2012 and 25.9.2020 respectively. It is further stated that in both these cases the challan has been filed on 6.8.2012 and 20.3.2012 as per the letter of the Lokayukt Office dated 16.9.2019, therefore, as per Rule 14 of the CCA Rules and also in view of the GAD circular dated 29.11.2012 the sealed cover cannot be opened in case of the petitioner. The same is clear from Annexure R/2 filed with the reply. Copy of the orders granting sanction of prosecution by the State Government in cases instituted against the petitioner are marked herewith as Annexure A/5-A and A/5-B. Copy of order dated 25.9.2020 is annexed herewith as Annexure A/5-C".

HIGH COURT OF MADHYA PRADESH

B.A- That, the learned Writ Court failed to consider that it was wrongly stated by the petitioner that his name was in the 4 selected names recommended by the DPC for promotion as it is clearly reflected from Annexure P/11 that the petitioner was merely in the waiting list. Therefore, no right accrued to the petitioner by virtue of his name having been placed in the waiting list. C.B- That, since criminal cases are pending against the petitioner instituted by the Lokayukt and challan has already been filed in those matters, therefore, as per Rule 14 of the CCA Rules r/w GAD circular dated 29.11.2012 the sealed cover could not have been opened in case of the petitioner. Copy of GAD circular dated 29.11.2012 is annexured herewith as Annexure A/6."

As noticed, this amendment application was brought to the notice of the Division Bench on 5.1.2021 and 12.1.2021 but thereafter the counsel appearing for the State did not press it. The core issue is whether this can be a basis for filing a review petition and whether this can be said to be an error, on the strength of which main order can be reviewed.

There is no quarrel on the legal position that long drawn arguments cannot be advanced and entertained to establish a factual error. Under the garb of review the matter cannot be permitted to be re-agitated afresh. The Supreme Court summarized the principles on which the review jurisdiction can be exercised. In the case of Inderchand Jain (supra) the principles are summarized as under:-

"33. The High Court had rightly noticed the review jurisdiction of the court, which is as under:

"The law on the subject - exercise of power of review, as propounded by the Apex Court and various other High Courts may be summarized as hereunder:

(i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 C.P.C.

(ii) Power of review may be exercised when some mistake or error apparent on the fact of record is HIGH COURT OF MADHYA PRADESH

found. But error on the face of 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 the points where there may be conceivable be two opinions.

(iii) Power of review may not be exercised on the ground that the decision was erroneous on merits.

(iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an Advocate.

(v) An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit.

In our opinion, the principles of law enumerated by it, in the facts of this case, have wrongly been applied."

The underlined portion makes it clear that power of review can very well be exercised because of a misconception of fact or law by any Court or even by an advocate. The Apex Court brought this within the scope of Order 47 Rule 1 CPC and opined that this amount to "any sufficient reason". Thus, in our view if amendment application of this nature was not pressed and skipped notice of this Court while deciding the writ appeal, it is a sufficient reason for reviewing the matter to the extent prayed for.

The factors namely; (i) employee is under suspension or

(ii) he/she is served with a charge sheet or undergoing a punishment or (iii) challan has been filed against him/her in a criminal case are indisputably relevant factors for determining whether fate of employee can be kept in the sealed cover. If sealed cover procedure is adopted for one ore more reasons mentioned hereinabove, it is certainly a relevant factor which may have a bearing on the decision of Writ Appeal.

HIGH COURT OF MADHYA PRADESH

The DPC proceedings filed by the original petitioner itself shows that Challans were indeed filed before the Court of competent jurisdiction, because of which his fate was kept in the sealed cover. Thus, the facts pointed out through amendment application prima facie appears to be relevant for taking appropriate decision in the writ appeal. We are satisfied that sufficient reasons are shown by the State for exercising review jurisdiction.

Considering the aforesaid, we deem it proper to review and recall our judgment dated 19.1.2021 to the extent prayed for and indicated above.

Accordingly, the judgment dated 19.1.2021 passed in WA No.1280/2020 is set aside to the extent indicated above. WA No.1280/2020 is restored to its original number.

The review petition is partly allowed.

As agreed, list the Writ Appeal No.1280/2020 for consideration in the next month.

           (Sujoy Paul)                                (Shailendra Shukla)
             Judge                                            Judge




trilok/-
           Digitally signed by Trilok Singh
           Savner
           Date: 2021.03.17 17:47:39 +05'30'