Madras High Court
The Management vs The Presiding Officer on 3 February, 2022
REV.APLC(MD)Nos.18 and 19 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.02.2022
CORAM :
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
REV.APLC(MD)Nos.18 and 19 of 2022
in CMP(MD)Nos.506 and 507 of 2022
The Management,
Madurai District Co-operative Milk,
Producers Union Limited,
Sathamangalam,
Madurai-625 020. .. Review Applicant/Appellant
in both applications
Vs
1.The Presiding Officer,
Labour Court,
District Court Buildings,
Melur Road,
Madurai-625 020.
2.R.Venkatachalam .. 1st and 2nd Respondents/1st and 2nd Respondents
in both applications
COMMON PRAYER : Review Applications are filed under Order 47 Rule
1 and 2 r/w Section 114 of C.P.C., to review the order dated 15.11.2021
made in W.A.(MD)Nos.2020 and 2021 of 2021.
Page 1 of 14
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REV.APLC(MD)Nos.18 and 19 of 2022
In both applications:
For Applicants : Mr.V.O.S.Kalaisalvam
For R2 : Mr.S.M.Mohangandhi
COMMON ORDER
***********
P.VELMURUGAN, J.
These review applications are filed to review the order dated
15.11.2021 made in W.A.(MD)Nos.2020 and 2021 of 2021, filed by the
review applicant/appellant.
2. It is to be noted that the second respondent was engaged as a Casual
Labour on daily wage basis from 11.01.1993. Since the second respondent
had completed 480 days of continuous service, within two years, the
Inspector of Factories, Circle-2, Madurai, had passed an order of
regularization and directed the review applicant/appellant to extend the
consequential monetary and service benefits and the order ended its finality
and there was no further challenge regarding the regularization of service and
to give monetary benefits. Therefore, in order to execute the order passed by
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REV.APLC(MD)Nos.18 and 19 of 2022
the Inspector of Factories, Circle-2, Madurai, the second respondent
approached the Labour Court by way of claim petitions. They were allowed
and computed the monetary benefits and also directed the review applicant to
pay the same. Challenging the said order of the Labour Court, the
Management/the review applicant filed writ petitions in W.P.(MD)Nos.2924
of 2012 and 2283 of 2016 before this Court. The Writ Court considered the
grounds raised by the review applicant and had dismissed the writ petitions.
Challenging the said order of the Writ Court, the review applicant filed W.A.
(MD)Nos.2020 and 2021 of 2021 before this Court and this Court also
considered the grounds raised by the review applicant and the reason given
by the Writ Court and dismissed the writ appeals confirming the order of the
Writ Court. Now, the review applicant has filed the present review
applications.
3. Heard the learned counsel for the review applicant and the learned
counsel for the second respondent.
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4. As already stated, there was no further challenge regarding the
regularization and the only question to be decided is regarding the difference
of payments and since the regularization was not under challenge and
therefore, the Labour Court has given the direction to pay the difference of
the amount in the claim petitions filed before the Labour Court. Challenging
the said order of the Labour Court, the Management/the applicant filed writ
petitions as well as the writ appeals. In both the writ petitions and the writ
appeals, the Writ Court and this Court do not find any infirmity in the order
passed by the Labour Court and therefore, dismissed the writ petitions as
well as the writ appeals.
5. Therefore, this Court, considering the above said facts and
circumstances of the case, dismissed the petitions and if aggrieved by the
judgment, the applicant can only file an appeal and not the review. It is a
settled proposition of law, unless there is an error apparent on the face of the
record either on law or facts, the review is not maintainable. The counsel for
the applicant has not pointed out any error apparent on the face of the record
and the learned counsel for the applicant only reargued the grounds raised in
the writ appeals.
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6. In this regard, it is relevant to refer to the following decisions of the
Hon'ble Supreme Court:-
(i) In the case of Tamil Nadu Electricity Board and another Vs.
N.Raju Reddiar and another reported in (1997) 9 SCC 736, it has been held
that “When an appeal is dismissed, except in rare cases where error of law
or fact is apparent on the records, no review can be filed.”
(ii) In the case of Vinay Sharma and Another Vs. State (NCT of
Delhi) and Others reported in (2018) 8 SCC 186. The relevant portion of
the judgment is extracted hereunder:-
“...20. Before we enter into the submissions raised in these review
petitions, it is useful to recapitulate the scope and grounds available for
exercise of jurisdiction by this Court under Article 137. Order XLVII Rule
1 of the Supreme Court Rules, 2013 dealing with review is as follows:
“1.The Court may review its judgment or order, but no
application for review will be entertained in a civil proceeding
except on the ground mentioned in Order XLVII, rule 1 of the Code,
and in a criminal proceeding except on the ground of an error
apparent on the face of the record.”
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21. An application to review a judgment is not to be lightly
entertained and this Court could exercise its review jurisdiction only when
those grounds are made out as provided in Order XLVII Rule 1 of the
Supreme Court Rules, 2013 framed under Article 145 of the Constitution
of India. This Court in Sow Chandra Kante and another v. Sheikh Habib,
(1975) 1 SCC 674 speaking through Justice V.R. Krishna Iyer on review
has stated the following in para 11:
11. A review of a judgment is a serious step and reluctant
resort to it is proper only where a glaring omission or patent
mistake or like grave error has crept in earlier by judicial
fallibility. A mere repetition, through different counsel, of old and
over ruled arguments, a second trip over ineffectually covered
ground or minor mistakes of inconsequential import are obviously
insufficient.
22. As per rule, review in a criminal proceeding is permissible only
on the ground of error apparent on the face of the record. This Court in
P.N.Eswara Iyer and others v. Registrar, Supreme Court of India, (1980) 4
SCC 680 while examining the review jurisdiction of this Court vis a vis
criminal and civil proceedings had made the following observations in
paras 34 and 35:
“34 . The rule, on its face, affords wider set of grounds for
review for orders in civil proceedings, but limits the ground vis-a-
vis criminal proceedings to errors apparent on the face of the
record. If at all, the concern of the law to avoid judicial error
should be heightened when life or liberty is in peril since civil
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penalties are often less traumatic. So, it is reasonable to assume
that the framers of the rules could not have intended a restrictive
review over criminal orders or judgments. It is likely to be the
other way about. Supposing an accused is sentenced to death by
the Supreme Court and the deceased shows up in court and the
court discovers the tragic treachery of the recorded testimony. Is
the court helpless to review and set aside the sentence of hanging?
We think not. The power to review is in Article 137 and it is
equally wide in all proceedings. The rule merely canalises the flow
from the reservoir of power. The stream cannot stifle the source.
Moreover, the dynamics of interpretation depend on the demand of
the context and the lexical limits of the test. Here record means
any material which is already on record or may, with the
permission of the court, be brought on record. If justice summons
the Judges to allow a vital material in, it becomes part of the
record; and if apparent error is there, correction becomes
necessitous.
35. The purpose is plain, the language is elastic and
interpretation of a necessary power must naturally be expansive.
The substantive power is derived from Article 137 and is as wide
for criminal as for civil proceedings. Even the difference in
phraseology in the rule (Order 40 Rule 2) must, therefore, be read
to encompass the same area and not to engraft an artificial
divergence productive of anomaly. If the expression record is read
to mean, in its semantic sweep, any material even later brought on
record, with the leave of the court, it will embrace subsequent
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events, new light and other grounds which we find in Order 47
Rule 1, CPC. We see no insuperable difficulty in equating the area
in civil and criminal proceedings when review power is invoked
from the same source.”
23. The scope of review jurisdiction has been considered by this
Court in a number of cases where well settled principles have been
reiterated time and again. It is sufficient to refer to judgment of this Court
in Kamlesh Verma vs. Mayawati and others (2013) 8 SCC 320, where this
Court has elaborately considered the scope of review. In paras 17, 18,
20.1 and 20.2 following has been laid down:
17. In a review petition, it is not open to the Court to
reappreciate the evidence and reach a different conclusion, even if
that is possible. Conclusion arrived at on appreciation of evidence
cannot be assailed in a review petition unless it is shown that there is
an error apparent on the face of the record or for some reason akin
thereto. This Court in Kerala SEB V. Hitech Electrothermics and
Hydropower Ltd. held as under: (SCC p. 656, para 10)
10. In a review petition it is not open to this Court to
reappreciate the evidence and reach a different conclusion, even if
that is possible. The learned counsel for the Board at best sought to
impress us that the correspondence exchanged between the parties
did not support the conclusion reached by this Court. We are afraid
such a submission cannot be permitted to be advanced in a review
petition. The appreciation of evidence on record is fully within the
domain of the appellate court. If on appreciation of the evidence
produced, the court records a finding of fact and reaches a
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conclusion, that conclusion cannot be assailed in a review petition
unless it is shown that there is an error apparent on the face of the
record or for some reason akin thereto. It has not been contended
before us that there is any error apparent on the face of the record.
To permit the review petitioner to argue on a question of
appreciation of evidence would amount to converting a review
petition into an appeal in disguise.
18. Review is not rehearing of an original matter. The power
of review cannot be confused with appellate power which enables a
superior court to correct all errors committed by a subordinate
court. A repetition of old and overruled argument is not enough to
reopen concluded adjudications. This Court in Jain Studios Ltd. v.
Shin Satellite Public Co. Ltd., held as under: (SCC pp. 504-505,
paras 11-12)
11. So far as the grievance of the applicant on merits is
concerned, the learned counsel for the opponent is right in
submitting that virtually the applicant seeks the same relief which
had been sought at the time of arguing the main matter and had been
negatived. Once such a prayer had been refused, no review petition
would lie which would convert rehearing of the original matter. It is
settled law that the power of review cannot be confused with
appellate power which enables a superior court to correct all errors
committed by a subordinate court. It is not rehearing of an original
matter. A repetition of old and overruled argument is not enough to
reopen concluded adjudications. The power of review can be
exercised with extreme care, caution and circumspection and only in
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exceptional cases.
12. When a prayer to appoint an arbitrator by the applicant
herein had been made at the time when the arbitration petition was
heard and was rejected, the same relief cannot be sought by an
indirect method by filing a review petition. Such petition, in my
opinion, is in the nature of second innings which is impermissible
and unwarranted and cannot be granted.
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 the record;
(iii) Any other sufficient reason.
The words any other sufficient reason have been interpreted in
Chhajju Ram v. Neki and approved by this Court in Moran Mar
Basselios Catholicos v. Most Rev. Mar Poulose Athanasius 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 v. Sandur
Manganese & Iron Ores Ltd.
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.
(iii) Review proceedings cannot be equated with the original
hearing of the case.
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(iv) Review is not maintainable unless the material error,
manifest on the face of the order, undermines its soundness or
results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an
erroneous decision is reheard 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.
24. This very Bench speaking through one of us (Justice Ashok
Bhushan) had occasion to consider the ambit and scope of the review
Jurisdiction in a criminal proceeding in Vikram Singh alias Vicky Walia
and another vs. State of Punjab and another (2017) 8 SCC 518. In para 23
of the judgement following has been stated:
“23. In view of the above, it is clear that scope, ambit and
parameters of review jurisdiction are well defined. Normally in a
criminal proceeding, review applications cannot be entertained
except on the ground of error apparent on the face of the record.
Further, the power given to this Court under Article 137 is wider
and in an appropriate case can be exercised to mitigate a manifest
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injustice. By review application an applicant cannot be allowed to
reargue the appeal on the grounds which were urged at the time
of the hearing of the criminal appeal. Even if the applicant
succeeds in establishing that there may be another view possible
on the conviction or sentence of the accused that is not a sufficient
ground for review. This Court shall exercise its jurisdiction to
review only when a glaring omission or patent mistake has crept
in the earlier decision due to judicial fallibility. There has to be an
error apparent on the face of the record leading to miscarriage of
justice to exercise the review jurisdiction under Article 137 read
with Order 40 Rule 1. There has to be a material error manifest
on the face of the record with results in the miscarriage of
justice.”
(iii)Further, in another recent decision of the Honourable Supreme
Court reported in (2020) 2 SCC 338 (Yashwant Sinha and Others
Vs. Central Bureau of Investigation through its Director and Another). The
relevant portion of the Judgment is extracted hereunder:-
“..96.As far as the judicial review of the award of the contract is
concerned, apart from the fact that a review does not permit
reappreciation of the materials, there is the aspect of the petitioner
seeking judicial review approaching the court late in the day. There is
also the aspect relating to the Court's jurisdiction not extending to permit
to so sit in judgment over the wisdom of the Government of the day,
particularly in matters relating to purchase of the good involved in this
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case. Therefore, in regard to review, sought in relation to the findings
relating to the judicial review, they cannot be found to be suffering from
palpable errors.”
7. Considering the facts and circumstances of the case, we do not find
any grounds that there is a discovery of any new and important point, error
apparent on the face of the record or any other sufficient reason to allow the
review applications. Therefore, the Review applications are dismissed. No
costs. Consequently, connected miscellaneous petitions are closed.
[P.S.N.,J.] [P.V.,J.]
03.02.2022
Index: Yes/No
Internet: Yes/No
sji
Note :In view of the present lock down
owing to COVID-19 pandemic, a web copy
of the order may be utilized for official
purposes, but, ensuring that the copy of the
order that is presented is the correct copy,
shall be the responsibility of the advocate /
litigant concerned.
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REV.APLC(MD)Nos.18 and 19 of 2022
PUSHPA SATHYANARAYANA, J.
and
P.VELMURUGAN, J.
sji
REV.APLC(MD)Nos.18 and 19 of 2022
in
CMP(MD)Nos.506 and 507 of 2022
03.02.2022
https://www.mhc.tn.gov.in/judis
