Madras High Court
K.Gnanambigai … vs The Presiding Officer on 5 December, 2023
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
Rev.Appln.No.214 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.12.2023
CORAM
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
Review Application No.214 of 2023
in W.A.No.2230 of 2023
in W.P.No.14381 of 2010
K.Gnanambigai … Applicant/Appellant/2nd Respondent
-vs-
1. The Presiding Officer,
Labour Court,
Puducherry. … Respondent/1st Respondent/1st Respondent
2. The Managing Director,
Aditi Diamonds Private Limited,
All India Press Compound,
Kennady Nagar, P.B.No.77,
Puduchery. … Respondent/2nd Respondent/Writ Petitioner
Prayer: Review Application filed under Order XLVII Rule 1 r/w Section 114 of
C.P.C., to review the order dated 22.08.2023 made in W.A.No.2230 of 2023 and
allow this Review Petition.
For Applicant : Mr.P.R.Thiruneelakandan
*****
JUDGMENT
The Review Application has been filed to review the judgment dated
22.08.2023 passed in W.A.No.2230 of 2023.
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2. In the Writ Petition filed by the Writ Petitioner in W.P.No.14381 of 2010,
this Court, on 19.11.2019, after considering the submissions made by the respective
parties, had allowed the Writ Petition, by holding as under:
"33. In the present case, the enquiry was conducted in
camera and during the enquiry in the presence of witnesses, the
second respondent-employee admitted the guilt. That being the
factum, there is no reason to arrive a conclusion that the enquiry
proceedings conducted is in violation of the principles of the
natural justice.
34. This being the facts and circumstances, this Court is
of the considered opinion that the Award of the Labour Court
dated 24.12.2009 passed in I.D.No.46 of 2005 stands quashed
and consequently, the writ petition stands allowed. However,
there shall be no order as to costs. Consequently, connected
miscellaneous petition is closed.”
3. Aggrieved by the order of the learned Single Judge, a Writ Appeal in
W.A.No.2230 of 2023 was preferred by the Review Applicant and the Division
Bench, by its order dated 22.08.2023, while upholding the order of the learned
Single Judge, held as follows:
"5. The main contention of the employee is that the
enquiry was not conducted in a fair and proper manner and none
was examined. Be it noted, the case being one involving moral
turpitude and given the fact that nearly 60% of the staff strength
of the Company constitute women, the entire enquiry was
conducted in camera and during enquiry, the employee had
admitted her guilt in the presence of witnesses, as has been
observed by the Single Bench in paragraph 33 of its order.
Superadded, in the opinion of this Court, the Single Bench, in
paragraph 29 of its order, has rightly held that when the employee
herself has admitted the charges in the enquiry, conduct of an
elaborate enquiry will only be an empty formality. In this context,
apropos would it be to refer to the judgment of the Supreme
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Court in Dharmarathmakara Raibahadur Arcot Ramaswamy
Mudaliar Educational Institution v Educational Appellate
Tribunal and another 1 , wherein, it was unequivocally held that
admission of guilt alone is sufficient for imposition of
punishment and a detailed enquiry is not required.
6 In view of the above discussion, we are of the opinion
that the employee is not entitled to the relief of reinstatement as
awarded by the Labour Court and accordingly, we confirm the
order impugned passed by the Single Bench.
In the result, this writ appeal fails and is accordingly
dismissed, however, sans costs."
The judgment dated 22.08.2023 made in the Writ Appeal has been sought to be
reviewed in this Review Application.
4. The foremost plea taken by the learned counsel for the Review Applicant /
Employee is that in the enquiry report (Ex.R5), it has been mentioned that based on
the admission in respect of the misconduct committed by the employee, she was
dismissed from service. Though the Labour Court had disbelieved the version,
learned Single Judge erroneously interfered with the Award of the Labour Court and
the same has been confirmed by the Division Bench. Learned counsel for the
Employee, by referring to the proceedings dated 28.08.2004 has submitted that the
Employee was placed under suspension after the so-called discreet enquiry, which,
according to him, cannot be taken into account for the purpose of passing an order
and the Division Bench proceeded on the basis that there was an admission. Learned
counsel for the Employee has further submitted that there was no initiation of
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enquiry with regard to the subsequent misconduct said to have been committed by
the employee.
5. This Court heard the learned counsel for the Review Applicant / Employee
and perused the material papers available on record.
6. In the present case on hand, a reading of Ex.R5 discloses the fact that
enquiry proceedings have been conducted and it is not an usual discreet enquiry, as
the affected person alone was examined and the employee was also cross-examined
in the enquiry. The words used therein were “secret domestic enquiry”, which would
mean that it was an “in-camera proceedings” conducted in the presence two other
women employees of the factory. Thus, it cannot be said that no enquiry was
conducted at all. Even though an argument was advanced on the side of the Review
Applicant / employee that there is no need to compulsorily place an employee under
suspension, a perusal of the suspension order dated 28.08.2004 clears doubts
persisting in the minds of the Court owing to her subsequent misconduct that she
had gone into the house of the complainant by climbing onto the compound wall
and threatened him to come out of the house, which necessitated the employer to
place her under suspension. Since the earlier misconduct itself had been proved, the
conducting enquiry on the subsequent misconduct would be a futile exercise,
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especially when there was a reference in respect of the subsequent misconduct in
the dismissal order. Therefore, we find no ground to review the judgment of this
Court.
7. It is now fairly well settled by a series of decision's of this Hon'ble Court
as also the Hon'ble Supreme Court that the scope of review is very minimal and it is
circumscribed by the provisions of the statute. It would be relevant to refer to few
Judgments of this Hon'ble Court as also the Hon'ble Supreme Court to understand
and appreciate the scope of review jurisdiction to find out if the petitioner has made
out a case for reviewing the order dated 01.09.2021 in W.A.No.2958 of 2021. A
Hon'ble Division Bench of this Court in the case of The Special Officer, Kallal Co-
operative Primary Agricultural and Rural Development Bank Ltd., Karaikudi,
Sivagangai District Vs. R.M.Rajarathinam and Others [Review Application (MD).
No.82 of 2013] decided on 04.02.2015, held as follows:
“10... It is well settled that the scope of review is very
limited. The review applicant cannot re-argue and he is not
entitled for re-hearing on merits.”
8. In another decision of the Division Bench of this Court in the case of
Dhanalakshmi Vs. M.Shajahan and others reported in AIR 2004 Madras 512, it
was opined that the power of review is not an appeal in disguise. The relevant
paragraphs of the said order are extracted below:
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"11. From the above judgments, it is seen that the law is
well settled inasmuch as the power of review is available only
when there is an error apparent on the face of the record and
not on erroneous decision. If the parties aggrieved by the
judgment on the ground that it is erroneous, remedy is only
questioning the said order in appeal. The power of review
under Order 47 Rule 1 C.P.C. may be opened inter alia only if
there is a mistake or an error apparent on the face of the record.
The said power cannot be exercised as is not permissible for an
erroneous decision to be "reheard and corrected". A review
application also cannot be allowed to be "an appeal in
disguise". Similarly, the error apparent on the face of the record
must be such an error, which must strikes one on mere looking
at record and would not require any long drawn process of
reasoning on points, where there may conceivably be two
opinions.”
9. Furthermore, in R.Mohala Vs. M.Siva and others in Review Petition
No.61 of 2018 and WMP.No.10818 and 10819 of 2018 decided on 25.04.2018, one
of us (SVNJ) elaborately discussed the scope of review and in Paragraph Nos.7 and
8, held as follows:
“7.The basic principle to entertain the review under Order 47
Rule 1 C.P.C. is to correct the errors but not to substitute a view. The
judgment under review cannot be reversed (or) altered taking away
the rights declared and conferred by the Court under the said
judgment; once a judgment is rendered, the Court becomes functus
officio and it cannot set aside its judgment or the decree; no inherent
powers of review were conferred on the Court; the review Court
cannot look into the trial Court judgment; it can look into its own
judgment for limited purpose to correct any error or mistake in the
judgment pointed out by the review petitioner without altering or
substituting its view in the judgment under review; the review court
cannot entertain the arguments touching the merits and demerits of
the case and cannot take a different view disturbing the finality of the
judgment; the review cannot be treated as appeal in disguise, as the
object behind review is ultimately to see that there should not be
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miscarriage of justice and shall do justice for the sake of justice only
and review on the ground that the judgment is erroneous cannot be
sustained.
8. It is settled law that even an erroneous decision cannot be a
ground for the Court to undertake review, as the first and foremost
requirement of entertaining a review petition is that the order under
review of which is sought, suffers from any error apparent on the
face of the order and in absence of any such error, finality attached to
the judgment/order cannot be disturbed.”
10. The Hon'ble Supreme Court in the case of Meera Bhanja Vs. Nirmala
Kumari Choudhury reported in (1995) 1 SCC 170, while considering the scope of
the power of review of the High Court under Order 47, Rule 1, C.P.C., held as
follows:
"The review proceedings are not by way of an appeal and have
to be strictly confined to the scope and ambit of Order 47, Rule 1
C.P.C. The review petition of error apparent on the face of the record
and not on any other ground. An error apparent on the face of the
record must be such an error which must strike one on mere looking
at the record and would not require any longdrawn process of
reasoning on points where there may conceivably be two opinions.
The limitation of powers on court under Order 47, Rule 1, C.P.C. is
similar to jurisdiction available to the High Court while seeking
review of the orders under Article 226."
11. In the case in Parsion Devi Vs. Sumitri Devi, reported in 1997 (8) SCC
715, the Hon'ble Apex Court held as follows:
"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 the jurisdiction under Order 47, Rule 1, CPC, it is not
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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."
12. From a reading of the above referred Judgments, it can be fairly
discerned that:
1.Review is not an appeal in disguise.
2.The review proceedings are not by way of an appeal
and have to be strictly confined to the scope and ambit of
Order 47, Rule 1 C.P.C.
3.A wrong exposition of the law or a wrong application
of the law and failure to apply the correct law cannot be a
ground for review.
4.The power to review is a restricted power given
through a Court to go through the Judgment only to correct it
or improve it, on the basis of some material which ought to
have been considered, escaped consideration or failed to be
placed before it for any other reason, but not to substitute a
fresh or a second Judgment.
5.The power of review cannot be invoked to correct the
erroneous Judgment and the finality attached to a Judgment
cannot be disturbed.
6.Only errors which are apparent on the face of the
record in the sense that errors which strike on mere looking at
record can only be corrected and not those that require long
drawn process of reasoning on point.
13. The above are some of the basic principles on which the power to review
rests. The said principles are not exhaustive but only illustrative.
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14. To review a Judgment / Order, the Applicants need to satisfy three basic
requirements of Order 47 Rule 1 of C.P.C., which are as under:
(i) From discovery of new and important matter or evidence
which after exercise of due diligence was not within his knowledge
(or) could not be produced by him at the time when the decree was
passed (or) order made;
(ii) There is some mistake (or) error apparent on the face of the
record in the judgment under review; and
(iii) or any other sufficient reasons.”
15. In the present case, the core grounds raised on which the review petition
rests, in our considered opinion are beyond the scope of the provisions of Order 47
Rule 1 CPC and the law laid down by the Hon'ble Supreme Court and the Hon'ble
High Court. The Review Applicant in the guise of the Review Petition wants this
Bench to rewrite its Judgment, which is not possible under review jurisdiction. As
already stated above review is not an appeal in disguise and there is no error
apparent on the face of the record. Therefore, the Division Bench rightly confirmed
the order of the learned Single Judge, which does not warrant any review. For all the
above reasons, we find no merits in the review application and the same deserves to
be dismissed.
16. Accordingly, this Review Petition stands dismissed.
(S.V.N.J.,) (K.R.S,J.,)
05.12.2023
Index: Yes / No
Internet: Yes / No
ar
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S.VAIDYANATHAN,J.
and
K.RAJASEKAR,J.
ar
To
The Presiding Officer,
Labour Court,
Puducherry.
Review Application No.214 of 2023
05.12.2023
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
