Madras High Court
Mariappan ... Review vs The State Rep. By on 16 October, 2024
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
Rev.Aplc(MD) No.26 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date: 16.10.2024
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
and
THE HON'BLE MS.JUSTICE R.POORNIMA
Rev.Aplc(MD) No.26 of 2021
Mariappan ... Review petitioner/ Respondent
Vs
1. The State rep. By
The Additional Chief Secretary,
Commercial & Registration (A1) Department,
Secretariat, Chennai – 9.
2. The Commissioner,
Sales Tax Department,
Elizhaham, Cheppakkam,
Chennai -5.
3. The Joint Commissioner,
Commercial Tax,
Reserve Line Road,
Palayamkottai,
Tirunelveli – 2. ..... Respondents / Appellants
PRAYER: Review Application filed under Order XLVII Rule 1 and 2
r/w. Section 114 of the Code of Civil Procedure, to review the order
dated 18.03.2021 in W.A.(MD)No.576 of 2020.
1/18
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Rev.Aplc(MD) No.26 of 2021
For Review Petitioner : Mr.R.Lakshmanan
For Respondents : Mr.Veerakathiravan
Additional Advocate General
Assisted by Mr.J.K.Jeyaseelan
Government Advocate
ORDER
The respondent in W.A.(MD)No.576 of 2020 has filed the present
Review Application, seeking review of the judgment of a co-ordinate
Division Bench (M.M.Sundresh,J. (as His Lordship then was) and
S.Ananthi,J.) dated 18.03.2021.
2. As a matter of fact, the Division Bench had pronounced a
common order not only in Writ Appeal (MD)No.576 of 2020, but, in a
string of other Writ Appeals, viz., W.A.(MD)Nos.578,580-582,
593,595,597,599-601,603 and 605 of 2020. We have not been placed by
any record to show that the respondent in the other Writ Appeals have
expressed grievance over the common judgment passed by the Division
Bench and had filed similar Review applications.
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3. The only ground, which is urged, is that the learned counsel for
the review applicant had placed reliance on the judgment of the Hon'ble
Supreme Court reported in 2017-1-SCC-148 (State of Punjab and other
V. Jagjit Singh and others) and that though the Division Bench had
referred to that particular Judgment and had also extracted paragraphs of
that particular judgment, formulated their opinion on the basis of that
particular judgment, three paragraphs of that judgment which were
advantageous to the review applicant, namely, paragraph Nos.56, 57, 58
were not relied on by the Division Bench.
4. It is contended on behalf of the review applicant that if those
three paragraphs had been taken into consideration, then, probably, the
Division Bench would have considered the concept of “equal pay for
equal work” and might have granted the same special time scale of pay
to the review applicant, who was employed in the Commercial Tax and
Registration Department, as is paid to similarly placed employees in the
Education Department. It is thus the argument of the learned counsel for
the review applicant that though the Division Bench had referred to the
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above judgment in Jagjit Singh (referred supra), a few paragraphs of the
judgment alone had been referred to and not other paragraphs.
5. Before proceeding further to consider whether such a ground
can be raised to review a judgment of the Division Bench, it would only
be appropriate to scope of review in accordance with the Madras High
Court Writ Rules 2021.
6. In the Madras High Court Writ Rules 2021, which equally
applies to the Madurai Bench also, Rule No.29 provides for Review of
an order. Rule 29 is as follows:
“29. Review
(1) The Court may review its orders but no
petition for review will be entertained except on the
grounds mentioned in Order XLVII, Rule 1 of the Code
of Civil Procedure, 1908.
(2) A petition for review shall be duly supported
by an affidavit and shall be filed within 30 days from
the date of the order sought to be reviewed and shall
clearly set out the grounds for review. However, the
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Court may entertain a review petition filed thereafter,
for sufficient cause.
(3) A petition for review shall be disposed of, as
far as practicable, by the same Judge who delivered the
order sought to be reviewed. The Court may either
dismiss the petition or direct notice to the respondents.
(4) No petition to review an order made on a
petition for review or on an order made in the main
petition consequent to a review being allowed shall be
entertained.”
7. A plain reading of the aforementioned stipulation, would
indicate that no petition for review will be entertained, except on the
grounds mentioned in Order 47 Rule 1 of the Code of Civil Procedure,
1908.
8. This naturally necessitates examination of the stipulations in
Order 47 Rule 1 of the Code of Civil Procedure.
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9. Even before examining Order 47 Rule 1 of the Code of Civil
Procedure, it would only be appropriate to examine Section 114 of the
Code of Civil Procedure.
10. Section 114 of the Code of Civil Procedure is as follows:
“114. Review:
Subject as aforesaid, any person considering
himself aggrieved
(a) by a decree or order from which an appeal is
allowed by this Code, but from which no appeal has been
preferred,
(b) by a decree or order from which no appeal is
allowed by this Court, or (c) by a decision on a reference
from a Court of Small Causes, may apply for a review of
judgment to the Court which passed the decree or made
the order, and the Court may make such order thereon as
it thinks fit.”
11. Order 47 Rule 1 of the Code of Civil Procedure is as follows:
“1. Application for review of judgment.
(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal
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is allowed, but from which no appeal has been
preferred, (b) by a decree or order from which no
appeal is allowed, or
(c) by a decision on a reference from a Court of
Small Causes, and who, from the discovery of new
and important matter or evidence which, after the
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, or
on account of some mistake or error apparent on the
face of the record of for any other sufficient reason,
desires to obtain a review of the decree passed or
order made against him, may apply for a review of
judgment to the Court which passed the decree or
made the order.
(2) A party who is not appealing from a decree
or order may apply for a review of judgment
notwithstanding the pendency of an appeal by some
other party except where the ground of such appeal is
common to the applicant and the appellant, or when,
being respondent, he can present to the Appellate
Court the case on which he applies for the review.
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Explanation-
The fact that the decision on a question of law
on which the judgment of the Court is based has been
reversed or modified by the subsequent decision of a
superior Court in any other case, shall not be a
ground for the review of such judgment.”
12. A plain reading of the aforementioned provisions makes it
clear that a review would lie against a decree or order, against which, no
appeal had been preferred or a decree or order from which no appeal is
allowed or a decision of a reference of a Court of Small Cases on the
following grounds:
(i) discovery of new and important matter of evidence, which was
not produced at the time when the order was made;
(ii) on account of some mistake or error apparent on the face of
record; and
(iii) any other sufficient reason.
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13. The Hon'ble Supreme Court had examined in extensio the
scope of review vis-a-vis the scope of an appeal. It had been laid down
by the Hon'ble Supreme Court that when application of mind is required
to examine whether the decision under review was right or wrong or
when an alternate view is possible or even when records already
available had not been referred, review would not lie. To correct the
order in such instances, an appeal alone would lie.
14. With respect to the only ground taken in this application,
namely, that though the judgment of the Hon'ble Supreme Court in Jagjit
Singh (referred supra) had been relied by the Division Bench, portions
which, according to the learned counsel for the review applicant were
advantages to the review applicant had not been referred to it would be
useful to examine the dictum of law laid down by the Hon'ble Supreme
Court in Aribam Tuleshwar Sharmma v. Aribam Pishak Sharma and
others (1974) 4 SCC 389.
15. In that case, the Hon'ble Supreme Court had very clearly
stated that merely because a document which formed part of the record
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was not considered at the time of deciding the case, it cannot be
catagorized as a mistake or error apparent on the face of record. The
Hon'ble Supreme Court had held as follows:
“....The Judicial Commissioner gave two reasons
for reviewing his predecessor's order. The first was that
his predecessor had overlooked two important
documents Exs. A-1 and A-3 which showed that the
respondents were in possession of the sites even in the
year 1948-49 and that the grants must have been made
even by then. The second was that there was a patent
illegality in permitting the appellant to question, in a
single writ petition, settlement made in favour of
different respondents. We are afraid that neither of the
reasons mentioned by the learned Judicial
Commissioner constitutes a ground for review. It is true
as observed by this Court in Shivdeo Singh v. State of
Punjab [AIR 1963 SC 1909] there is nothing in Article
226 of the Constitution to preclude a High Court from
exercising the power of review which inheres in every
court of plenary jurisdiction to prevent miscarriage of
justice or to correct grave and palpable errors
committed by it. But, there are definitive limits to the
exercise of the power of review. The power of review
may be exercised on the discovery of new and important
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matter or evidence which, after the exercise of due
diligence was not within the knowledge of the person
seeking the review or could not be produced by him at
the time when the order was made; it may be exercised
where some mistake or error apparent on the face of the
record is found; it may also be exercised on any
analogous ground. But, it may not be exercised on the
ground that the decision was erroneous on merits. That
would be the province of a court of appeal. A power of
review is not to be confused with appellate powers
which may enable an appellate court to correct all
manner of errors committed by the subordinate court.”
(emphasis supplied)
16. In the above case, it had been observed by the Hon'ble
Supreme Court that though it was complained that two important
documents, Ex.A1 and A3, which reflected possession had not been
considered in the judgment, the Hon'ble Supreme Court had held that
even if the decision was erroneous, it could only be set aside by filing an
appeal and could not be subjected to review.
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17. In the instant case, the Division Bench while examining the
concept of 'equal pay for equal work', had as a matter of fact, observed
in paragraph No.12, which is as follows:
“12. The principle of equal pay for equal work
can only apply if there is complete and whole sale
identity between two groups. Even, if the employees in
the two groups doing identical work they cannot be
granted equal pay, if there is no complete and
wholesale identity. Pay scale can be different, if
nature of jobs, responsibilities, experience, method of
recruitment are different as per Judgement reported in
2007 (8) SCC 279 in S.C. Chandru Vs. State of
Jharkhand.”
18. Further, in paragraphs Nos. 13 and 14, the Division Bench had
observed and held as follows:
“13. Fixation of pay scale is a delicate
mechanism which requires various consideration
including financial capacity, responsibility,
educational qualification, mode of appointment, etc.
14. Further, subject, posts persons have to
prove that they are doing all works what the reference
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posts persons doing and also they are having same
responsibilities. Except, a letter dated, 29.01.2020 no
other evidence to show that they are performing equal
work. The respondents have not established that the
duties and responsibilities of the posts held by them
are similar, equivalent to those of the reference
posts.”
19. There had been a specific reference to the judgment of the
Hon'ble Supreme Court reported in 2017-1-SCC-148 (State of Punjab
and others V Jeggit Singh and others), in paragraph No.17 of the order,
which is as follows:
” 17. The Judgment reported in 2017, SCC, 148, State of
Punjab and others Vs. Jeggit Singh and others, clearly
hold that equal work to be established by the subject
posts with reference posts. In the case on hand no
pleadings. In the case on hand, no pleadings and no
proof for equal work and responsibilities are proved by
the respondents/petitioners.”
20. It is thus seen that the issue now canvassed on behalf of the
review applicant had actually been considered by the Division Bench.
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The Division Bench had after referring to the judgment referred by the
learned counsel for the review applicant thought it fit to pass a particular
order. It is not that they had omitted to refer to the said judgment. They
had referred to the passages, which, according to the Division Bench
were relevant to the facts and circumstances of the case. The argument
that further paragraphs or further observations should have been relied
on is a hypothetical argument and cannot be countananced in a review
application.
21. In paragraph No.19, the Division Bench had also held as
follows:
“19. Each and every case should be decided on
its own merits. In the case on hand, the Writ
petitioners have not proved the main criteria that is
they are doing equal work. Only the employer has
rights to decide the salary. However, the Government
can consider the representations of the writ petitioners,
considering the present cost of living. Though, the
learned Single Judge of this Court gone through the
Judgment of Apex Court and pass an Order in favour
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of the Writ petitioners, the ratio and principles are not
applicable to this case.”
22. The learned counsel for the review applicant stated that since
notice had been directed earlier in the Review Application, the Review
Application must automatically be allowed. We are not able to agree
with such a contention.
23. The Division Bench had very categorically held that each and
every case should be decided on its own merit. They had also observed
that the writ petitioners who also include the review applicant herein had
not proved the main criteria that they are doing equal work. The learned
counsel for the review applicant vehemently argued that the review
applicant is also doing the same work as those who are employed in
Education Department. That is an issue on fact which has to be
examined and cannot be presumed or assumed.
24. The one analogy which this Court can draw is the work
discharged by a Steno-Typist or Personal Assistant to the District
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Judiciary / the High Court, wherein, judgments are dictated and taken
down in shorthand in pages after pages. A Steno-Typist in the office of a
Collector would only be engaged in taking down dictation of letters of a
few pages in a whole day. They cannot be said to discharge the same
work, though they could be placed in the same category and same
position. The work done is totally different. One is exhaustive, whereas
the other is not so exhaustive. Therefore, there cannot be comparison of
work of employees in two separate Departments.
25. No other point had been urged by the learned counsel for the
review applicant. We do not agree that this is a fit case for review.
26. Accordingly, this Review Application stands dismissed.
No costs.
(C.V.K., J.) (R.P, J.)
16.10.2024
Index : Yes
Internet : Yes
NCC : Yes
LS
https://www.mhc.tn.gov.in/judis
To
1. The Additional Chief Secretary,
Commercial & Registration (A1) Department,
Secretariat, Chennai – 9.
2. The Commissioner,
Sales Tax Department,
Elizhaham, Cheppakkam,
Chennai -5.
3. The Joint Commissioner,
Commercial Tax,
Reserve Line Road,
Palayamkottai,
Tirunelveli – 2.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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C.V.KARTHIKEYAN, J.
and
R.POORNIMA, J.
LS
16.10.2024
https://www.mhc.tn.gov.in/judis
