1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Review Petition Nos. 6 and 7 of 2000. Date of decision: 30.3.2010 D.L. Gupta. …Petitioner Vs State Bank of India and others …Respondents. Coram The Hon’ble Mr.Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. R.B.Misra, Judge. Whether approved for reporting?1 For the Petitioner : Mr.Surender Sharma, Advocate. For the Respondents: Mr. K.D. Sood, Advocate. Justice R.B. Misra, J (Oral) Civil review petition No. 6 of 2000 has been preferred for reviewing the order dated 11.8.1999 passed in Civil Writ Petition No. 719 of 1992 (D.L. Gupta Versus State Bank of India and others) and another Review Petition No.7 of 2000 has been preferred for reviewing order dated 11.8.1999 passed in Civil Writ Petition No. 270 of 1992 (D.L. Gupta Versus State Bank of India and another). The above two Review Petitions have since been preferred against a common order, therefore, these shall also be adjudicated together. 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 2. The writ petition No. 270 of 1992 was filed by the writ petitioner with a prayer to quash the proceedings dated 15.10.1990 and order dated 24.1.1991 seeking direction to the respondent bank namely State Bank of India to consider his claim for promoting him as M.M.G.S.- III w.e.f. 1.8.1985. An another Writ Petition No. 719 of 1992 was preferred by the writ petitioner for quashing the orders dated 17.8.1985 and 12.2.1991, seeking direction to the respondents to withdraw the punishment order and grant the writ petitioner all consequential benefits including the promotion. 3. After considering the submissions of the writ petitioners and rival contentions of the respondents and after careful scrutiny of the records, this High court by a common order dated 11.8.1999, has been pleased to dismiss both the above writ petitions. 4. The writ petitioner has inter-alia made here similar submissions as were made in both the writ petitions and inter-alia has also contended that the writ petitioner was eligible to be promoted as Officer of M.M.G.S.III w.e.f. 1.8.1985, whereas, this High court has erroneously treated a different date i.e. 27.5.1987 as the date of consideration of promotion and has illegally dismissed the writ petition in derogation to the settled principles of law, ignoring the averments and contentions made in the writ petitions. 3 5. In Review Petition No. 7 of 2000, the writ petitioner has tried to impress that this court while adjudicating the Writ Petition No. 719 of 1992 has not appreciated the contents of the charge sheet and has failed to appreciate the material on record. There was non- application of mind on the part of the disciplinary authority and appropriate opportunity was not afforded to the writ petitioner to defend his case before the inquiring officer. Besides this, the inquiry report was not supplied to the writ petitioner, as such, the impugned order of this court is illegal and contrary to the law, therefore, the Review Petition is to be allowed and the order dated 11.8.1999 passed in both the above writ petitions is to be rectified and modified accordingly as per the averments, pleadings, grounds and prayers made therein. 6. It is necessary to see as to whether the prayers made in the present Review Petitions may be brought within the permissible parameters and the relevant provisions of review provided in the relevant statute or not. (A) Before proceeding further, it may be necessary to reproduce hereunder the relevant provisions of review provided in Civil Procedure Code. “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. 4 (b) by a decree or order from which no appeal is allowed by this Code 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.” ORDER 47 RULE 1 OF CPC 1. Application for review of judgment (1) Any person considering himself aggrieved- (a) by a decree or order from which an appeal 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, or 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 5 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. (B) In respect of review it is relevant to mention that in AIR 1980 Supreme Court 674( M/s Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi), it was held by the Supreme Court that the review is not for the purpose of a re-hearing or for making a fresh decision. The normal principle is that the judgment pronounced by the Court is final. The Supreme Court has observed in para 8 which reads as below:- “8 It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. Sajjan Singh v. State of Rajasthan, (1965) 1 SCR 933 at p. 948. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will revise its judgment. G.L. Gupta v. D. N. Mehta, (1971) 3 SCR 748 at p. 760. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. O. N. Mohindroo v. Dist. Judge, Delhi, (1971) 2 SCR 11 at p. 27. Power to review its judgments has been conferred on the Supreme Court by Art. 137 of the Constitution, and that power is subject to the provisions of any law 6 made by Parliament or the rules made under Art. 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in O. XLVII, Rule 1 of the Code of Civil Procedure and in a criminal proceeding on the ground of an error apparent on the face of the record. (Order XL, R.1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except 'where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility'. Chandra Kanta v. Sheikh Habib, (1975) 3 SCR 933. 7. In (1975) 3 SCR 933 ( Chandra Kanta Vs. Sheikh Habib), the Supreme Court has held that the review cannot be equated with the original hearing of the case, and it could be exercised only where a glaring omission or patent mistake has occurred in the order. 8. In (1995) 1 SCC 170 ( Meera Bhanja (Smt). Vs. Nirmala Kumari Choudhury (Smt), it was held that the review is to be made when there is error apparent on the face of the record. 9. In Meera Bhanja (Smt.) (supra) , the Supreme Court has observed in para-8 as below: “8. It is well settled 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, Rule 1, C.P.C. In connection with the limitation of the powers of the Court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders 7 under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma,(1979) 4 SCC 389. AIR 1979 SC 1047, speaking through Chinnappa Reddy, J., has made the following pertinent observations (SCC p.390, para-3). " It is true as observed by this Court in Shivdeo Singh Vs. State of Punjab 2 AIR 1963 SC 1909, 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 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 power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court," 10. The Supreme Court has observed in the case of Satyanarayan Laxminarayan Hegde Vs. Mallikarjun Bhavanappa Tirumale 3 AIR 1960 SC 137: (1960) 1 SCR 890, wherein K.C. Das Gupta, J., speaking for the Supreme Court has made the following observations in connection with an error apparent on the face of the record: 8 "An error which has to be established by a long drawn process of reasoning on points where there 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 such a writ." 11. Relying on the above judgments the Supreme Court in (1995) 1 SCC 170 Meera Bhanja (Smt) Vs. Nirmala Kumari Choudhury (Smt). has held as below:- “ 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 has to be entertained only on the ground of error apparent on the face of the record and not on any other ground. An error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. The limitation of powers of 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.” 12. In (1997) 8 SCC 715 ( Parsoan Devi and others Vs. Sumitri Devi and others), the Supreme Court has indicated that the error which is self evident and not to be detected by process of reasoning can hardly be a matter of review. 13. In this case, the Supreme Court has observed in para-7 which reads as below: 9 “review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 Civil Procedure Code. In Thungabhadra Industries Ltd. v. Govt. of Andhra Pradesh AIR 1964 SC 1372: (1964) 5 SCR 174 (SCR at page 186) the Supreme Court opined: "What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an 'error apparent on the face of the record). The fact that on the earlier occasion the court held on an identical state of facts that a substantial question of law arose would not perse be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for 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 characterized 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". 14. The Supreme Court in (1997) 8 SCC 715 (Parsion Devi and others Vs. Sumitri Devi and others), has held: “Under Order 47 Rule 1 Civil Procedure Code 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 Civil Procedure Code. In exercise of the jurisdiction under Order 47 Rule 1 Civil Procedure Code it is not permissible for an erroneous decision to be "reheard and corrected". There is a clear distinction 10 between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be “an appeal in disguise.” 15. In AIR 2000 Supreme Court 1650( Lily Thomas Vs. Union of India and others), the Supreme Court has held that the mistake apparent on the face of the record cannot mean error which has to be fished out and searched. The words “ any other sufficient reasons” has been elaborated and it means that “a reason sufficient on grounds at least analogous to those specified in the rule” and it was observed in para 52, para 55 and para 57 which reads as below:- “52 The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273 held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or 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 miscarriage 11 of justice nothing would preclude the Court from rectifying the error. This Court in S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595 held : "Review literally and even judicially means re- examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the Courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest Court indicating the circumstances in which it could rectify its order the Courts culled out such power to avoid abuse of process or miscarriage of justice. In Prithwi Chand Lal Choudhury v. Sukhraj Rai, AIR 1941 FC 1 the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae Vs. Bijai Govind Singh (1836) 1 Moo PC 117 that an order made by the Court has final and could not be altered. ". . . . . . . .nevertheless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common Law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in. . . . . The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or 12 have reconciled inconsistencies.' Basis for exercise of the power was stated in the same decision as under : 'It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevaling to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.' ‘Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Art. 137 of the Constitution. Our Constitution makers who had the practical wisdom to visualise the efficacy of such provision expressly conferrred the substantive power to review any judgment or order by Art. 137 of the Constitution. And Cl. (c) of Art. 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order 40 had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order 47 Rule 1 of the Civil Procedure Code. The expression, 'for any other sufficient reason' in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order 40, Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest in justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice." 13 The mere fact that two views on the same subject are possible is no ground to review the earlier judgment passed by a Bench of the same strength. 55. It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of co-ordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Art. 136 or Art. 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment. 57. Otherwise also no ground as envisaged under O. 40 of the Supreme Court Rules read with O. 47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the judgment in Sarla Mudgal's case (1995 AIR SCW 2326 : AIR 1995 SC 1531 : 1995 Cri LJ 2926). It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal's case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which is to be fished out and 14 searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting S. 494 amounted violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words "any other sufficient reason appearing in O. 47, Rule 1, C.P.C." must mean "a reason sufficient on grounds at least analogous to those specified in the rule," as was held in Chhajju Ram v. Neki Ram, AIR 1922 PC 112 and approved by this Court in Moran Mar Bassellos Catholics v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526. Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T. C. Basappa v. Nagappa, AIR 1954 SC 440 this Court held that such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233 it was held (para 23): ". . . . . . . . . . .it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in