IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 RP.No. 884 of 2007() -------------------- AGAINST THE JUDGEMENT IN WA.1473/2004 Dated 29/09/2004 .................... REVIEW PETITIONERS/ APPELLANTS 1 & 2 IN THE WA ------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY (FINANCE), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF TREASURIES, DIRECTORATE OF TREASURIES, THIRUVANANTHAPURAM. BY SPL. G.P. SRI. N. MANOJ KUMAR FOR FINANCE RESPONDENTS/RESPONDENTS IN WA: --------------------------------- C.SWARNAPPAN, JUNIOR SUPERINTENDENT, SUB TREASURY, VIZHINJAM & RESIDING AT RAJ COTTAGE, CHAMAVILA, POOVACHAL P.O., KATTAKADA, THIRUVANANTHAPURAM. ADV. SRI.L.MOHANAN FOR R1 THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 23/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & THOMAS P. JOSEPH, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.P.No.884 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of January, 2009 O R D E R Basheer,J: This review petition which is at the instance of the State and the Director of Treasuries is directed against the judgment in a writ appeal which was disposed of about 4 years ago. However, considering the aftermath of the decision in the writ appeal, we had condoned the delay of 1028 days in filing the review petition. 2. The parties are being referred to in this order as they were arrayed in the writ petition. Petitioner, while he was working as Junior Superintendent in the Treasury Department was placed under suspension on July 31, 1997 in connection with a case involving fraudulent encashment of Rs.35,15,000/= by some of the employees of Allachalkonam Harijan Girijan Handloom Weavers Co-operative Society. The specific allegation against the petitioner was that he had in his capacity as Junior Superintendent, fraudulently authenticated 7 treasury cheques of the Society for a total sum of Rs.9,55,000/=. Anyhow, indisputably petitioner faced 2 RP.NO.884/07 departmental proceedings in connection with the above charge. Simultaneously, vigilance enquiry was also instituted in respect of the above charge. 3. In February 2004, after a lapse of about seven years, petitioner preferred W.P.(C)No.5347/2004 before this Court with the following prayers: (a) “to issue a writ of certiorari or other appropriate order or direction calling for the records leading to the disciplinary proceedings pending against the petitioner evidenced by Ext.P2 and to quash the same as illegal. (b) in the alternative to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to complete disciplinary proceedings against the petitioner, if any, immediately. ( c) to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to assess suitability of the petitioner to the higher post and a finding reached. (d) to grant such other relief that the petitioner may ask for and those which this Hon’ble Court deems fit and necessary in the interests of justice.” (emphasis supplied) 3 RP.NO.884/07 4. The above writ petition was disposed of by a learned Single Judge of this Court at the stage of admission itself on February 26, 2004. The relevant portion of the judgment is extracted hereunder: “2. Government Pleader was heard in the matter. He submits that the concerned respondents will take steps to give the matter a finality. He further submits that Vigilance investigation has been going on in respect of three persons including the petitioner and in view of the retirement of the other persons, thee was some lethargy in the matter. It is further submitted that the disciplinary action will be expedited. 3. Sri. Mohan, learned counsel appearing for the petitioner submits that no First Information Report had been lodged in the matter and there were no vigilance case pending against him. 4. Because of the passage of almost seven years, I think it will be really difficult to follow up the matter by way of vigilance enquiry. Therefore, I direct that such enquiries need not be proceeded further. But, departmental proceedings against the petitioner might be possible in view of the memo of charges, which has been issued to him. It has to be completed. Such proceedings is to be finalised within a period of four months from today. It is also made clear that the right of the petitioner for promotion will also have to be appropriately considered thereafter.” 4 RP.NO.884/07 5. The above judgment was challenged by the State and the Director of Treasuries before a Division Bench of this Court in W.A.No.1473/2004. 6. The Division Bench disposed of the writ appeal holding that the learned Single Judge was justified in directing the department not to continue with the vigilance enquiry against the petitioner. However, it was directed that the departmental enquiry against the petitioner shall be completed on or before November 30, 2004. It was made clear that in case such enquiry was not completed within the aforesaid period, the petitioner would be entitled for consequential benefits including promotions from the date when his juniors were promoted. 7. The above judgment rendered by the Division Bench is sought to be reviewed by the State and the Director of Treasuries in this review petition. 8. Sri. Manoj, learned Special Government Pleader for Finance, submits that the petitioner had obtained an order from this Court which he had never bargained for or even pleaded in the writ petition. He points out that the primary prayer in the writ petition was to quash the departmental disciplinary proceedings pending against the petitioner. In the alternative, petitioner had prayed that the respondents be directed to complete the disciplinary proceedings pending against him (emphasis supplied). 9. But, the learned Single Judge while disposing of the 5 RP.NO.884/07 writ petition had held that because of the passage of time, it would be really difficult to complete the vigilance enquiry and therefore, the learned judge had ordered that the vigilance enquiry need not be proceeded with further. 10. Sri. Manoj contends that in the writ appeal, the State had specifically adverted to this aspect in Ground G of the Appeal Memorandum. It was further pointed out that the petitioner had never challenged the proceedings in the vigilance case initiated against him and no relief had been sought for stopping investigation of the vigilance case. It was also pointed out in Ground C of the appeal memorandum that the Vigilance and Anti Corruption Wing had already informed the Government that investigation of the vigilance case had been completed and that the report would be furnished soon. The Government was waiting for the report from the Vigilance Department at that time. But, the writ appeal was disposed of by the Division Bench without adverting to the above contentions raised by the Government, it is contended by the learned Government Pleader. 11. Having carefully perused the the papers relating to the writ petition and the writ appeal, we are satisfied that there is considerable force in the above contentions raised by the learned Government Pleader. Indisputably, the petitioner had never questioned or challenged the vigilance enquiry that was reportedly pending against him at the time when the writ petition was filed. It is true that petitioner has now 6 RP.NO.884/07 raised a contention that at the time of filing the writ petition he had not received any notice of enquiry from the Vigilance Department, and thus he had no occasion to refer to the vigilance enquiry in the writ petition. 12. As mentioned by us earlier, the writ petition was disposed of by the learned Single Judge at the admission stage itself. More importantly, the Director of Vigilance or any of the officers of the Department were not impleaded in the writ petition. Still further, there was not even a whisper about the vigilance enquiry in the writ petition. Petitioner had never asked for either stopping or quashing the vigilance enquiry pending in the matter. Admittedly vigilance had registered the crime way back in 1998 itself (Cr.No.V.C.11/98/TVM dated 26.6.98) though final report was filed only in 2006. Therefore, in our view there is considerable force in the contention raised by the learned Government Pleader that the learned Single Judge had granted a relief which was not even asked for. Similarly, in the writ appeal also the above aspect was not adverted to by the Division Bench. Therefore, there is no merit in the contention raised by the State on this aspect. 13. The next question that may arise for consideration is whether this Court would be justified in exercising its power of review at this distance of time. Learned counsel for the petitioner contends that the obvious attempt of the State is to challenge the correctness of the judgment passed by the Division Bench in the writ appeal. He submits that there is no 7 RP.NO.884/07 error apparent on the face of the record. If at all the State is aggrieved by the judgment of the Division Bench, the remedy lies before the superior court. The power of review can never be resorted to by the State as a substitute for an appeal. It is further contended by the learned counsel that if at all the learned single Judge had committed any apparent mistake in the judgment, the State ought to have sought for review of the said judgment. Lastly, it is pointed out by the learned counsel that the petitioner had retired from service in the year 2005 and if the entire issue is reopened, it will lead to manifest injustice resulting in his prosecution in pursuance of the vigilance enquiry. 14. In this context, it is brought to our notice that the proceedings/enquiry initiated by the vigilance against the petitioner had been quashed by a Division Bench of this Court in Crl.M.C.No.485/2007 relying on the judgment of the Division Bench in the writ appeal referred to above. It is also contended by the learned counsel that applying the principle of issue estoppal, the review petition cannot be entertained. 15. In support of the above contention, learned counsel for the petitioner has placed reliance on the following decisions of the apex court in Meera Bhanja (Smt) v. Nirmala Kumari Choudhry (Smt) (1995 (1) SCC 170), Parsion Devi and Others v. Sumitri Devi and Others (1997 (8) SCC 715) and Lilly Thomas and Others v. Union of India and Others (2000 (6) SCC 224) 8 RP.NO.884/07 16. But Sri. Manoj, learned Government Pleader, has cited the following decisions before us in support of his contentions: Delta Foundations & Constructions v. Kerala State Construction Corporation Ltd. (2003 (1) KLT 626), M.M. Thomas v. State of Kerala (2000(1) KLT 799 (SC), V.K. Majotra v. Union of India and Others (2003 (8) SCC 40) and Chandigarh Administration v. Laxman Roller Flour Mills Pvt. Ltd. (1998 (8) SCC 326). 17. In Meera Bhanja’s case (supra) the apex court held that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule1, CPC. It was further held that 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 two opinions. The limitation of powers of the court under Order 47 Rule 1, CPC is similar to the jurisdiction available to the High Court while seeking review of the orders under Article 226. 18. In Lilly Thomas’ case (supra) also, the above principle was reiterated. Similarly in Parsion Devi’s case also the apex court re-iterated the principle that “misstate or error apparent on the face of the record is one which is self evident and does not require a process of reasoning, distinct from erroneous decision. So rehearing the matter for detecting an error in the earlier decision and then correcting 9 RP.NO.884/07 the same do not fall within the ambit of review jurisdiction. Review jurisdiction cannot be used as appellate jurisdiction. In the decisions cited by the learned Government Pleader also the same principle had been reiterated. 19. As has been noticed already, the learned Single Judge in his judgment had ordered that vigilance enquiry need not be proceeded with further. This order was issued even in the absence of such a plea in the writ petition. The above view was confirmed in writ appeal by the Division Bench. In Chandigargh Administration’s case (supra) the apex court held that unless specific averments are made and a relief to that effect is prayed for in the writ petition, the High Court is not justified in issuing any order in exercise of the relief prayed for in the writ petition. 20. It is contended by the learned counsel for the petitioner that the State now cannot attempt to put the clock back since it is the admitted position that another Division Bench of this Court had quashed the FIR registered by the vigilance against the petitioner relying on the decision of the Division Bench in the writ appeal. The case of the petitioner is that the State being a party not only to the writ appeal but also to the Crl.M.C, it cannot now turn round and contend for the position that quashing of the FIR cannot be sustained in the eye of law on the plea that the decision in the writ appeal was passed on an erroneous premise. In other words, the contention of the learned counsel appears to 10 RP.NO.884/07 be that what is now sought to be corrected or reviewed is not some error which is apparent on the face of the record; but what is attempted to be rectified is something which is the core of the issue namely whether the Division Bench was justified in confirming the decision of the learned Single Judge to terminate the vigilance enquiry. Learned counsel submits that applying the principle of issue estoppal also, the State cannot contend for the position that what was corrected in the judgment is an error apparent on its face. 21. However, we have no hesitation to hold that the above contention raised by the learned counsel is totally misconceived. In Lilly Thomas’ case (supra) the apex court had yet again reminded that the power of review is not an inherent power. It must be conferred by law. A review petition is also not an appeal in disguise. The court further held thus: “ It cannot be denied that justice is a virtue which transcends all barriers and the rules of procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice, nothing would preclude the court from rectifying the error”. 11 RP.NO.884/07 22. Similarly in M.M. Thomas’ case the apex court held that High Court being a Court of Record, as envisaged in Art.215 of the Constitution, must have inherent powers to correct the records. A Court of Record envelopes all such powers whose acts and proceedings are to be enrolled in a perpetual, memorial and testimony. “A Court of Record is undoubtedly a superior Court which is itself competent to determine the scope of its jurisdiction. The High Court, as a Court of Records, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders favoured by it, the High Court has not only power, but a duty to correct it. The High Court’s power in that regard is plenary”. The apex court further held that if such power of correcting its own record is denied to the High Court when it is brought to its notice, the consequence would be that the superior status of the High Court will dwindle down. Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of record. 23. Having carefully perused the writ petition and writ appeal papers, we are satisfied that the apparent error that had crept in while the Division Bench had disposed of the writ appeal is liable to be corrected especially since the fact that the petitioner had not sought to quash the vigilance enquiry which was not brought to the notice of either the learned 12 RP.NO.884/07 Single Judge or the Division Bench. 24. It is true that the Division Bench concurred with the view taken by the learned Single Judge. Though in the Appeal Memorandum, the State had specifically contended that learned Single Judge had granted some reliefs which the petitioner had never bargained for, the said contention was not specifically urged before the Division Bench for some obscure reasons by the learned Government Pleader. It may be argued that in such a situation, the State may not be entitled to take recourse to the review jurisdiction of this Court. 25. But in the peculiar facts and circumstances of this case, we are satisfied that the majesty of the system is to be preserved. 26. No person can be allowed to escape from the clutches of law by default. No court can be privy to such a calamitous consequence either through accidental inadvertence or sheer oversight. Therefore, we have no hesitation to hold that the petitioner could not have been granted some relief which he did not ask for. In that view of the matter we are inclined to hold that the mistake which is apparent on the face of the record has to be rectified. 27. Therefore, the review petition is allowed. We are of 13 RP.NO.884/07 the opinion that the appeal has to be heard on its merit and a fresh decision has to be taken in the matter. The review petition is allowed. (A.K.BASHEER, JUDGE) (THOMAS P. JOSEPH, JUDGE) cl 14 RP.NO.884/07