Madras High Court
G.Srinivasan vs )The State Of Tamilnadu on 1 September, 2021
REV.APLC(MD)No.23 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.09.2021
(Reserved on 27.07.2021)
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
Review Application(MD)No.23 of 2021
and
WMP(MD)No.6108 of 2021
G.Srinivasan ... Petitioner
vs.
1)The State of Tamilnadu,
Rep. by its Secretary,
Department of Higher Education,
Fort St.George, Chennai-600 009.
2)The Principal Secretary/
Commissioner of Technical Education,
Directorate of Technical Education (Polytechnic)
Guindy, Chennai-600 025.
3)The Governing Council
Sankar Polytechnic College,
Sankar Nagar-627 357,
Tirunelveli District,
Represented by its Chairman
4)The Principal,
Sankar Polytechnic College,
Sankar Nagar-627 357,
Tirunelveli District.
5)B.N.Venkatraman
The Manager (Accounts & Administration)
Sankar Polytechnic College,
Sankar Nagar-627 357,
Tirunelveli District. ... Respondents
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REV.APLC(MD)No.23 of 2021
Review Application filed under Clause 15 of the Letters Patent to
review the order dated 09.02.2021 in W.P(MD)No.1170 of 2012.
For Petitioner : Mr.Isaac Mohanlal, Senior Counsel
For R1 & R2 : Mr.P.Thilak Kumar, Government Advocate
For R4 : Mr.Raguvaran Gopalan for
Mr.K.Prabhakar
ORDER
This review application has been filed to review the order dated
09.02.2021 in W.P(MD)No.1170 of 2012.
2.The petitioner filed the above writ petition questioning the order
dismissing him from service passed by the 4th respondent dated
04.01.2012 and to direct the 3rd and 4th respondents to reinstate him into
service with all service and monetary benefits. In the writ petition, the
petitioner contended that he was appointed as Junior Assistant in the 4th
respondent Polytechnic College on 01.09.1993 and he was promoted as
Assistant on 25.02.2000. While so, the 5th respondent took charge as
Manager on 10.05.2010 and he commanded to do several things which
were not appropriate under law. As the petitioner did not cooperate with
the 5th respondent to do so, on 22.09.2010 the 5th respondent made the 4th
respondent / Principal to suspend the petitioner from service on the
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REV.APLC(MD)No.23 of 2021
vague allegations of disobeying their instructions and behaving in a
disorderly manner. The 4th respondent without the approval of the
Governing Council, issued the suspension order. On 12.11.2010, the 4th
respondent issued a charge memo levelling six charges. The petitioner
has sent a representation on 16.11.2010 requesting to provide certain
documents and to grant 30 days time to submit explanation which was
refused by the 4th respondent directing the petitioner to submit his
explanation within seven days. Thereafter, on 02.12.2010 the petitioner
has submitted his explanation. On 07.12.2010, the 4th respondent issued a
letter stating that there were some typographical error in the charge
memo at charge Nos.1 and 3. The petitioner has submitted his
explanation on 18.12.2010.
3.The petitioner has further contended that challenging the order of
suspension, he filed W.P.(MD).No.2580 of 2011. While so, the 4th
respondent sent a letter dated 01.04.2011 informing about appointment of
an Enquiry Officer and directing him to attend enquiry on 11.04.2011.
On 04.04.2011, the petitioner sent a letter requesting the 4th respondent to
defer the enquiry in view of pendency of the above writ petition which
was refused. The Enquiry Officer sent a letter dated 15.04.2011 to the
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REV.APLC(MD)No.23 of 2021
petitioner to attend enquiry on 21.04.2011. The petitioner has sent a
letter to the Enquiry Officer requesting to defer the enquiry. The Enquiry
Officer, by his letter dated 22.04.2011, refused to defer the enquiry and
directed the petitioner to attend the enquiry on 29.04.2011 or otherwise
the enquiry would be conducted ex parte. Again, the petitioner sent a
letter to the Enquiry Officer to defer the enquiry on 28.04.2011.
However, the Enquiry Officer conducted the enquiry in the absence of
the petitioner on 29.04.2011 and submitted a report on 15.05.2011
holding that the petitioner is guilty of all the charges. The 4 th respondent
issued a show cause notice dated 08.06.2011 enclosing a copy of the
enquiry report. Challenging the said show cause notice, the petitioner
has filed another writ petition in W.P.(MD).No.6116 of 2011. This Court,
by order dated 13.10.2011, dismissed both the writ petitions ie., W.P.
(MD).No.2580 of 2011 and W.P.(MD).No.6116 of 2011. However, this
Court had granted time to the petitioner to submit his explanation to the
second show cause notice. Accordingly, the petitioner submitted his
explanation on 02.11.2011. Thereafter, the 4th respondent, by order dated
04.01.2012, dismissed the petitioner from service, against which, the
petitioner filed the above writ petition.
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REV.APLC(MD)No.23 of 2021
4.This Court after considering the submissions made by the
learned counsel for the petitioner as well as the respondents, by order
dated 09.02.2021, has passed the following order in the writ petition:-
''11.In this case, totally six charges were framed
against the petitioner alleging misconduct, disobedience and
temporary misappropriation of funds. The order of dismissal
from service passed in ex parte. The petitioner has filed this
writ petition without availing effective alternative remedy of
appeal. The main ground on which the petitioner sought to
set aside the impugned order is that there is a violation of
principles of natural justice by non supplying the documents
relied by the management. It is seen that the petitioner had
filed W.P.(MD).No.6116 of 2011 questioning the second
show cause notice. In the affidavit filed in support of the
said writ petition, the petitioner did not raise the ground of
non supply of documents. In that writ petition, by order
dated 13.10.2011, this Court has specifically directed the
petitioner to approach the appellate authority, if any adverse
order is passed. Even then, the petitioner has filed this writ
petition. Hence, this Court is not inclined to entertain this
Writ Petition. However, this Court is of the view that it
would be appropriate to direct the petitioner to approach the
appellate authority mentioned in the impugned order and to
raise the grounds raised in this writ petition.
12. In the result, this Writ Petition is disposed of with
a direction to the petitioner to approach the appellate
authority mentioned in the impugned order within a period
of three weeks from the date of receipt of a copy of this
order and if the petitioner files an appeal within the above
stipulated time, the appellate authority shall entertain the
appeal without going into the question of limitation as he
has approached this Court within the limitation period and
he has been litigating only before this Court for these long
years, and dispose of the appeal on merits and in
accordance with law, within a period of three months from
the date of receipt of appeal. It is open to the petitioner to
raise all the grounds before the appellate authority. It is
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REV.APLC(MD)No.23 of 2021
made clear that the appellate authority, while deciding the
appeal on merits, shall not be influenced by any observation
made by this Court in this order and the appeal shall be
decided on its own merit. No costs. Consequently, connected
miscellaneous petition is closed.''
5.Seeking to review the abovesaid order, the petitioner has filed
the present review application.
6.The learned Senior Counsel appearing for the petitioner
submitted that the Polytechnic College is governed by the Grant-in-Aid
Code of the Madras Technical Education Department. Article 14 of the
Code mandates that “No employee of the institution shall be punished or
dismissed except in accordance with the instruction given in Appendix 3
which deals with the procedure for taking disciplinary action on the
members of the staff. As per paragraph No.2 of Appendix 3, the power
of dismissal vests only with the Chairman of the Governing Council.
Though it is stated by the 4th respondent that in this regard, a clarificatory
circular dated 07.09.2007 has been issued by the Director of Technical
Education, the circular cannot supersede the Code. Therefore, the order
of dismissal passed by the 4th respondent / Principal of the College is
wholly without jurisdiction and liable to be set aside. He would further
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REV.APLC(MD)No.23 of 2021
state that the 3rd respondent college is a private professional college and
the grant in aid is squarely applicable to the college. It is accepted
principle of statutory construction that rules made under a statute are a
legitimate aid to construction of the statute as contemoranea exposotio.
For the said legal position, the learned Senior Counsel relied on the
judgment in P.Kasilingam vs. P.S.G.College of Technology reported in
1995 Supp (2) SCC 348. He would also state that the bye-laws though
non statutory, still binding in order to avoid arbitrariness and to ensure
fairness in action.
7.The learned Senior Counsel would further state that the entire
enquiry proceedings is wholly void. It is the duty of the enquiry officer
to adduce all the material documents as well as evidences to arrive at the
conclusion that all the charges are proved even though the delinquent is
not present in the enquiry. In this case, the charge memo was bereft of
the statement of allegations, the copies of the documents and list of
witnesses in favour of the management. He would further submit that the
petitioner has not been issued with documents relied on by the College
either with the charge memo or with the enquiry report and therefore, the
petitioner could not give effective reply and defend his case. In a quasi
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REV.APLC(MD)No.23 of 2021
judicial matter, if the delinquent is being deprived of knowledge of the
material against him, though the same is made available to the punishing
authority in the matter of reaching his conclusion, rules of natural justice
would be affected and it would clearly be a denial of a reasonable
opportunity to submit a plausible and effective rebuttal to the charges. In
this regard, the learned Senior Counsel relied on the following
judgments:-
a)State of U.P and others vs. Saroj Kumar Sunha (2010) 3 MLJ
742(SC)
b)State of Uttaranchal and others vs. Kharak Singh (2008) 8 SCC
c)Mohd, Quaramuddin vs. State of A.P. (1994) 5 SCC 118.
d)K.Vijayalakshmi vs. Union of India and others (1998) 4 SCC 37.
8.Lastly, the learned Senior Counsel would contend that it is well
settled that alternative remedy is not an absolute bar to the invocation of
the writ jurisdiction. The rule of exclusion of writ jurisdiction by
availability of alternative remedy is a rule of discretion and not one of
compulsion and the Court must consider the pros and cons of the case
and then may interfere if it comes to the conclusion that the petitioner
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REV.APLC(MD)No.23 of 2021
seeks enforcement of any of the fundamental rights; where there is
failure of principles of natural justice or where the orders or proceedings
are wholly without jurisdiction or the vires of the Act is challenged. In
this regard, the learned Senior Counsel relied on the following
judgments:-
a)(2005) 6 SCC 499, State of H.P and others vs. Gujarat Ambuja
Cement Ltd, and another.
b)Harbanslal Sahnia and another vs. Indian Oil Corporation Ltd.,
and another reported in (2003) 2 SCC 107.
c)Union of India and others vs. Tantia Construction Private
Limited reported in (2011) 5 SCC 697.
In support of his contentions, the learned Senior Counsel would also rely
on various decisions and would pray for allowing the review application.
9.The 4th respondent has filed a detailed counter affidavit and
written submissions.
10.Heard the learned Senior Counsel for the petitioner, learned
Government Advocate for the respondents 1 and 2 and the learned
counsel for the 4th respondent. In view of the order going to be passed,
notice to the respondents 3 and 5 is not necessary.
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REV.APLC(MD)No.23 of 2021
11.Perusal of the order sought to be reviewed shows that this Court
has specifically found that in W.P(MD)No.6116 of 2011 questioning the
second show cause notice, the petitioner did not raise the ground of non
supply of documents and hence this Court has specifically directed the
petitioner to approach the appellate authority, if any adverse order is
passed. Despite the said directions, the petitioner has filed the present
writ petition and this Court has once again directed the petitioner to
approach the appellate authority mentioned in the impugned order.
Perusal of the grounds raised in the review application also shows that
the points canvassed in the writ petition are again re-agitated under the
garb of review. Therefore, in my considered opinion, there is no error
apparent on the face of the record to review the order passed in the writ
petition.
12.The power of this Court in matters of review is very limited.
Such power can be exercised only when there is error apparent on the
face of the record or in the event an order is not reviewed, it would
amount to miscarriage of justice. For the said proposition, we may
usefully refer to the Judgment of a Division Bench of this Court, in
Union of India, rep by the Senior Divisional Commercial Manager,
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REV.APLC(MD)No.23 of 2021
Chennai, Vs. The Registrar, Central Administrative Tribunal,
Madras Bench, reported in CDJ 2014 MHC 241, wherein the Division
Bench has made a complete survey of several Judgments of the Supreme
Court, on this question, and has ultimately, in Paragraph No.10, held as
follows:-
"10. In yet another Judgment reported in 2013 (8)
SCC 320, [Kamlesh Verma Vs. Mayawati and others],
the Hon'ble Apex Court, after examining various Judgments
passed earlier has held as follows"
"12. This Court has repeatedly held in various
Judgments that the jurisdiction and scope of review is not
that of an appeal and it can be entertained only there is an
error apparent on the face of record. A mere repetition
through different counsel, of old and overrulled arguments,
a second trip over ineffectually covered grounds or minor
mistakes of inconsequential import are obviously
insufficient......."
In the above Judgment, the Hon'ble Apex Court has
laid down the principles as under:
"19. Review proceedings are not by way of an appeal
and have to be strictly confined to the scope and ambit of
Order XL VII Rule 1 of CPC. In review jurisdiction, mere
disagreement with the view of the Judgment cannot be the
ground for invoking the same. As long as the point is
already dealt with and answered, the parties are not entitled
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REV.APLC(MD)No.23 of 2021
to challenge the impugned Judgment in the guise that an
alternative view is possible under the review jurisdiction.
Summary of the principles:
20. Thus, in view of the above, the following
grounds of review are maintainable, as stipulated by the
statute:
20.1 When the review will be maintainable:-
(i). Discovery of new and important matter or
evidence which, after the exercise of due diligence, was not
within knowledge of the petitioner or could not be
produced by him;
(ii). Mistake or error apparent on the face of record;
(iii). Any other sufficient reason.
The words 'any other sufficient reason" has been
interpreted in Chhajju Ram Vs. Neki, AIR 1922 PC 112
and approved by this Court in Moran Mar Basselios
Catholicos Vs. Most Rev.Mar Poulose Athanasius &
others [1955] 1 SCR 520, to mean, "a reason sufficient on
grounds at least analogous to those specified in the rule".
The same principles have been reiterated in Union of India
Vs. Sandur Manganese & Iron Ores Ltd., ors., JT (2013)
8 SC 275.
20.2. When the review will not be maintainable:-
(i) A repetition of old and overruled argument is not
enough to reopen concluded adjudications.
(ii). Minor mistakes of inconsequential import.
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REV.APLC(MD)No.23 of 2021
(iii). Review proceedings cannot be equated with the
original hearing of the case.
(iv). Review is not maintainable, unless the material
error, manifest on the face of the order, undermine its
soundness or results in miscarriage of justice.
(v). A review is by no means an appeal in disguise
whereby an erroneous decision is re-heard and corrected
but lies only for patent error.
(vi). The mere possibility of two views on the subject
cannot be a ground for review.
(vii). The error apparent on the face of the record
should not be an error which has to be fished out and
searched.
(viii). The appreciation of evidence on record is fully
within the domain of the appellate Court, it cannot be
permitted to be advanced in the review petition.
(ix). Review is not maintainable when the same relief
sought at the time of arguing the main matter had been
negatived."
13.In view of the law laid down by the Division Bench of this
Court in the Judgment, referred to above, it may be mentioned that the
review is not an appeal in disguise and therefore, this Court cannot
consider any of the new materials, which were not placed before the
Court, argued and not considered. Applying the said legal principles to
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REV.APLC(MD)No.23 of 2021
the facts of the present case, if the grounds of review are analysed, this
Court finds no error apparent on the face of the order sought to be
reviewed. Thus, the present Review Application is liable to be dismissed.
Accordingly, the Review Application is dismissed. If the petitioner is still
aggrieved, it is always open to him to work out his remedy in accordance
with law, if he so desires. Consequently, connected Miscellaneous
Petition is closed.
Index : Yes / No 01.09.2021
Internet : Yes / No
bala
To
1)The Secretary,
Department of Higher Education,
Fort St.George,
State of Tamilnadu,
Chennai-600 009.
2)The Principal Secretary/
Commissioner of Technical Education,
Directorate of Technical Education (Polytechnic)
Guindy, Chennai-600 025.
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REV.APLC(MD)No.23 of 2021
J.NISHA BANU, J.
bala
Pre_Delivery order made in
Review Application(MD)No.23 of 2021
DATED : 01.09.2021
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