REVIEW 49-10 1 YBG IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION REVIEW PETITION NO.49 OF 2010 M/s.Dave Brothers .. Petitioners Versus Balu Sitaram Karad .. Respondent Mr.Arshad Shaikh i/b. G.K.Tripathi for petitioners Mr.N.M.Ganguli for respondent. CORAM: S.C. DHARMADHIKARI, J. DATE : 23rd AUGUST, 2010. P.C. 1] This is a review petition by the employer original petitioner in Writ Petition No.1007 of 1999. 2] The said petition came to be dismissed by a detailed judgement and order dated 4th June 2008. 3] Aggrieved thereby, the petitioner appellant preferred an appeal being Appeal No.289 of 2010 and on 16th June 2010, the said appeal came to be withdrawn with liberty to adopt appropriate proceedings. 4] According to Mr.Shaikh, learned Counsel for petitioner, pursuant to the liberty this review petition has been filed. 5] The only contention raised before before me by Mr.Shaikh is that the judgement under review is erroneous because it confirms the Award of the REVIEW 49-10 1 labour court in proceedings under section 33(c)(2) of the Industrial Disputes Act, 1947 (ID Act for short), even to the extent of claim of interest of respondent employee. In the submission of Mr.Shaikh the law is clear that in proceedings under section 33(c)(2), apart from computation and calculation of the amounts due and payable to the workman no amount of interest can be awarded on such ascertained sum. Even in equity such a claim of interest cannot be allowed. The award has been confirmed by this court and the same includes interest and, therefore, to that extent the judgement under review suffers from an error apparent on the face of record. In such circumstances, according to the learned Counsel, the review petition be allowed and the claim of the workman be reduced accordingly. This be done by partly modifying the award which was the subject matter of challenge in the petition of the employer, thereby, the petition should be partly allowed. It is then urged that the judgement under review suffers from an apparent error to the extent it allows the claim of the respondent – workman on the basis of the settlements with the Union. Those benefits were not admissible to him. Hence, the Court should consider the objections of the employer in that regard. There is a omission to do so, hence the error apparent on the face of the record. 6] It is not possible to accept these contentions of Mr.Shaikh for obvious reasons. The review jurisdiction is extremely limited. This is not a case where an error apparent on the face of the judgement has been brought to my notice. It is a case where the case is sought to be reopened by the petitioner employer by seeking to challenge the award of the labour court and consequently the judgement of this court on the ground that the claim for interest has been erroneously awarded. In law such claim could not have been granted even by the labour court. Therefore, the award could not have been confirmed by this Court is the submission. Neither in the petition nor REVIEW 49-10 1 during the course of the oral argument before me, did the petitioner employer ever raise the plea that the claim of the workman before the labour court included component of interest and that could not have been granted in law. Such a plea does not appear to have been raised even before the labour court. Even during the course of proceedings before me, such an argument was not raised nor any material shown in that behalf. Even the memo of petition does not indicate any such ground being raised. The contention that the error is apparent and on the face of the record is unacceptable. On the own showing of the petitioner, reference will have to be made to the original application filed before the labour court and segregating therefrom the claim of interest. Further, attention of the Court is sought to be invited to the rulings of Division Bench and Single Judges of this Court on the power to grant interest on a claim laid under section 33C(2) of the I.D.Act, 1947. Thus, it will be nothing but rehearing of the petition. Further, the pleas based on the settlements were raised earlier. They may have been dealt with erroneously but that is no ground for reviewing the judgement. Review jurisdiction is not to be equated with appellate power. This jurisdiction is to be exercised sparingly and only on the touchstone of Section 114 read with Order 47 Rule 1 of C.P.C. In A.I.R. 2006 S.C. 1634 (Haridas Das Vs. Usha Rani Banik and Ors), the Supreme Court considered the ambit and scope of the power of review and held thus:- “13. In order to appreciate the scope of a review, section 114 of the CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the Court since it merely states that it “may” make such order thereon as it thinks fit. The parameters are prescribed in Order XLVII of the CPC and for the purposes of this lis, permit the defendant to press for a rehearing “on account of some mistake or error REVIEW 49-10 1 appaent on the face of the records or for any other sufficient reason.” The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the explanation in Rule 1 of the Order XLVII which states that the fact that the decision on a question of law on which the judgement 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 judgement. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection. This Court in M/s.Thungabhadra Industries Ltd. (in all the Appeals) Vs. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur (AIR 1964 S.C. 1372) held as follows:- “There is a distinction which is real though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by “error apparent”. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate argument one could point to the error and say here is REVIEW 49-10 1 a substantial point of law which stares one in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.” “14. In Meera Bhanja Vs. Smt. Nirmala Kumari Choudhary (A.I.R. 1995 S.C. 455) it was held that:- “It is well settled law that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1, C.P.C. In connection with the limitation of the powers of the Court under Order XLVII, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma speaking through Chinnappa Reddy, J. has made the following pertinent observations:- “It is true there is nothing in Article 226 of the Constitution to preclude the 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 matter of 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 REVIEW 49-10 1 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 merit. That would be in the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate Court to correct all manner of error committed by the subordinate court.” “15. A perusal of the order XLVII, Rule 1 show that review of a judgement or an order could be sought : (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of record or any other sufficient reason.” “17. The judgement in Aribam’s case (supra) has been followed in the case of Smt.Meera Bhanja (supra). In that case, it has been reiterated that an error apparent on the face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any long drawn process of reasoning. The following observations in connection with an error apparent on the face of the record in the case of Satyanarayan Laxminarayan Hegde Vs. Mallikarjun Bhavanappa Tiruymale (A.I.R. 1960 SC 137) were also noted:- “An error which has to be established by a long drawn process of reasoning on points where there REVIEW 49-10 1 may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue a writ.” “18. It is also pertinent to mention the observations of this Court in the case of Parsion Devi Vs. Sumiri Devi (1997(8) SCC 715). Relying upon the judgements in the cases of Aribam’s (supra) and Smt. Meera Bhanja (supra), it was observed as under:- “Under XLVII, Rule 1, CPC a judgement 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 exercise of the jurisdiction under Order XLVII, Rule 1 CPC it is not 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.” 7. When substantive Appeal was preferred to challenge the judgement under review, it was open for the petitioner to point out the errors, if at all, in REVIEW 49-10 1 the judgement. By withdrawing that appeal and seeking leave to adopt appropriate proceedings, such errors cannot be corrected, especially when they are not of the nature provided in section 114 read with Order 47 of the Code of Civil Procedure. In such circumstances, it is not possible to entertain this review petition and the same is accordingly dismissed. 8] The alternate request to extend the operation of the order dated 6th August 2010 on this review petition also cannot be acceded to. Mr.Ganguly, learned counsel for respondent rightly invites my attention to the fact that the judgement under review is dated 4th June 2007 the award of labour court is dated 14th October 1998. That was made on an application under section 33 (c)(2) of the I.D.Act. That was to seek the benefit of an award in favour of the respondent workman rendered sometime in 1992. The workman cannot be prevented from receiving the amounts which are legitimately due and payable to him. For all these reasons, the alternate prayer for extension of operation of the order also cannot be granted and the same is rejected. Mr.Ganguly is permitted to furnish note of appearance and the same be accepted. (S.C. DHARMADHIKARI, J.)