SLP Against HC Order Rejecting Review Petition Cannot be Heard When the Main Judgement Is Not Challenged: SC

IN THE CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITIONJUDGMENT ASHOK BHUSHAN J This special leave to appeal has been filed against the Division Bench judgment of the Kerala High Court dated 06.02.2020 rejecting the Review Petition No. 8018 filed by the petitioner in Writ Appeal No. 3914. Brief facts necessary to consider this special leave petition need to be noted. The petitioner was an employee of Kuruppampady Service Co operative Bank. Petitioner was suspended and disciplinary inquiry was conducted by the Bank The Bank vide order dated 20.03.2003 dismissed the petitioner consequent to domestic enquiry. There has been series of litigation between the petitioner and the Bank and thereafter Cooperative Arbitration Court by order dated 18.08.2010 gave award by which punishment of dismissal was modified as reduction to a lower rank. Against the order dated 18.08.2010 both the petitioner as well as the Bank filed Appeal No 78 of 2010 and No. 81 of 2010 respectively. The Cooperative Tribunal vide its judgment dated 16.08.2011 disposed of both the appeals by which the punishment of compulsory retirement on 20.03.2003 was imposed with terminal benefits subject to liability if any duly assessed. Against the order of the Cooperative Tribunal a writ petition was filed by the petitioner before the learned Single Judge of the Kerala High Court which writ petition was dismissed by judgment dated 31.07.2013 against which judgment Writ Appeal No. 13113 was filed by petitioner before the Division Bench. The Division Bench of the High Court vide its judgment dated 11.03.2015 dismissed the writ appeal filed by the petitioner Aggrieved by the Division Bench judgment dated 11.03.2015 the petitioner filed a Special Leave Petition No. 24231 of 2015 before this Court which was dismissed by order dated 21.08.2015 which is as follows: We do not see any merit in this special leave petition which is hereby dismissed.” After dismissal of special leave petition a Review Petition No. 1521 of 2016 was filed in this Court which too was dismissed on 02.03.2016. The petitioner also filed a Curative Petition No. 2416 which also was dismissed on 12.05.2016. After the aforesaid proceedings in this Court the petitioner filed a Review Petition R.P. No. 8018 in Writ Appeal No.399 of 2014 which review petition has been dismissed by the High Court vide its judgment dated 06.02.2020. Aggrieved with the judgment dated 06.02.2020 this special leave petition has been filed. Learned counsel for the petitioner challenging the order on the review submits that earlier dismissal of the special leave petition on 21.08.2015 shall not operate as res judicata. He further submits that the petitioner was dismissed on petty charges due to political vendetta. He further contends that Cooperative Arbitration Court which has imposed punishment of reduction in rank was wrongly substituted by compulsory retirement by the Cooperative Tribunal. Learned counsel for the petitioner has also referred to judgment of this Court in Kunhayammed and Ors. Vs. State of Kerala and Anr. 6 SCC 359 We have heard learned counsel for the petitioner and have perused the records. The earlier Special Leave PetitionNo. 24231 of 2015 was filed by the petitioner challenging the Division Bench judgment dated 11.03.2015 by which his Writ Appeal was dismissed. The Review Petition No 805 of 2018 giving rise to this special leave petition has been filed to review the judgment dated 11.03.2015 of the Division Bench. A review petition as well as curative petition was filed by the petitioner after dismissal of his earlier special leave petition. The judgment of this Court in Kunhayammed and Ors. Vs. State of Kerala and Anr supra) laid down that where the special leave petition is dismissed there being no merger the aggrieved party is not deprived of any statutory right of review if it was available and he can pursue it. In paragraph 34 this Court made following observations: “34. ................But where the special leave petition is dismissed — there being no merger the aggrieved party is not deprived of any statutory right of review if it was available and he can pursue it. It may be that the review court may interfere or it may not interfere depending upon the law and principles applicable to The Division Bench of the High Court by the impugned judgment dated 06.02.2020 has not dismissed the review petition as not maintainable. The High Court proceeded to meticulously examine the question and after consideration came to the conclusion that there is no mistake or omission amounting to error apparent on the face of the record. In paragraphs 8 and 9 of the judgment High Court held: “8. This Court in paragraph Nos.11 and 12 of the judgment passed in writ appeal elaborately considered the conversion of punishment to compulsory retirement with sufficient reasonings and justified the Co operative Tribunal for setting aside the punishment of reduction to lower rank and imposing compulsory retirement. The aforesaid findings are made consciously after making due deliberations on the materials on record and the findings of the single Bench of this Court. The findings of this Court are supported by the decisions of the Apex Court in Hussain Sasansaheb Kaladgi v. State of Maharashtra and J.K.Synthetics Ltd. v. K.P.Agarwal and Another(2) SCC 433]. 9. So there is no omission to consider the legality or correctness of the punishment or power of the Co operative Tribunal to impose such a punishment of compulsory retirement. There is no mistake or omission amounting to error apparent on the face of the record as contended by the revision petitioner In view of the legal proposition laid down by the Supreme Court in the decisions referred above this Court is not inclined to rehear or reconsider the above findings as the review is not an appeal in disguise. Hence the review petition fails and is dismissed The review petition filed by the petitioner thus was rejected on merits. 10. The first question which need to be considered is as to whether the present special leave petition challenging the above review order dated 06.02.2020 is maintainable when the Division Bench judgment dated 11.03.2015 has neither been challenged nor can be challenged in this special leave petition. The consequence of the rejection of the review petition is that the High Court has refused to review the judgment of the Division Bench dated 11.03.2015 passed in Writ Appeal No. 399 of 2014. As noted above the Division Bench judgement dated 11.03.2015 was questioned by petitioner by special leave petition in this Court which was dismissed on 21.08.2015. When the Special Leave Petition No 24231 of 2015 challenging the earlier judgment has already been dismissed such dismissal has become final between the parties. In this special leave petition the petitioner cannot challenge the earlier order dated 11.03.2015 against which he unsuccessfully has earlier filed the special leave petition. When the order dated 11.03.2015 is unassailable by the petitioner in this special leave petition no relief can be granted to petitioner which may have effect in any manner diluting modifying or reversing the earlier judgment dated 11.03.2015. 11. This Court had earlier considered the question as to whether the special leave petition challenging the order rejecting review petition is maintainable when the main judgment of the High Court is not under challenge. We may refer to judgment of this Court in Municipal Corporation of Delhi Vs. Yashwant Singh Negi 2 SCR 550. In the above case a special leave petition was preferred against an order rejecting the review petition. A preliminary objection was raised that special leave petition is not maintainable since the main judgment is not challenged. In paragraph 1 of the judgment facts have been noticed which are to the following “1. This special leave petition has been preferred against the order dated 11.09.2009 passed by the High Court of Delhi in Review Petition No. 709 in LPA No. 1233 of 2006. Mr. Nidhesh Gupta learned senior counsel appearing for the Respondent raised a preliminary objection that the special leave petition is not maintainable since the main judgment rendered by the High Court on 5.11.2008 in LPA No. 1233 of 2006 was not challenged.” 12. This Court after considering the earlier judgment of this Court held that special leave petition is not maintainable. In paragraphs 3 and 4 following was laid down: “3. We find ourselves unable to agree with the views expressed by this Court in Eastern Coalfields Limited1 SCC 520 wherein this Court has taken the view that once the review petition is dismissed the doctrine of merger will have no application whatsoever. This Court in DSR Steel Limited v. State of Rajasthan6 SCC 782 also examined the various situations which might arise in relation to the orders passed in review petitions. Reference to paragraphs 25 25.1 25.2 and 25.3 is made which are extracted below for “25. Different situations may arise in relation to review petitions filed before a court 25.1. One of the situations could be where the review application is allowed the decree or order passed by the court or tribunal is vacated and the Limitedand applying the 3rd situation referred to therein in paragraph 25.3 we are inclined to dismiss this special leave petition. We find force in the contention made by the learned senior counsel appearing for the respondent that this SLP is not maintainable since the main order was not challenged but only the order passed in the review petition alone was challenged in this SLP. Hence the SLP is therefore not maintainable and the same is dismissed 13. We may also notice another elaborate judgment of this Court in Bussa Overseas and Properties Private Limited and Anr. Vs. Union of India and Anr. Ltd. v. Union of Indiawhereby the High Court while dealing with an application of review has declined to condone the delay of 129 days in preferring the application for review and also opined that the application for review was totally devoid of merit The expression of the said view led to dismissal of the application for 14. In the above case this Court noticed several earlier judgments and accepting the preliminary objection held that the special leave petition is not maintainable. Following was held in paragraphs 29 to “29. Needless to state that when the prayer for review is dismissed there can be no merger. If the order passed in review recalls the main order and a different order is passed definitely the main order does not exist. In that event there is no need to challenge the main order for it is the order in review that affects the aggrieved 30. The decisions pertaining to maintainability of special leave petition or for that matter appeal have to be seemly understood. Though in the Nale v. Shiolalsing Gannusing Rajput 1994) 2 SCC 753] the two Judge Bench referred to Order 47 Rule 7 of the Code of Civil Procedure that bars an appeal against the order of the court rejecting the review it is not to be understood that the Court has curtailed the plenary jurisdiction under Article 136 of the Constitution by taking recourse to the provisions in the Code of Civil Procedure. It has to be understood that the Court has evolved and formulated a principle that if the basic judgment is not assailed and the challenge is only to the order passed in review this Court is obliged not to entertain such special leave petition The said principle has gained the authoritative status and has been treated as a precedential principle for more than two decades and we are disposed to think that there is hardly any necessity not to be guided by the 31. In this context we may profitably reproduce a passage from State of A.P. v. A.P. Jaiswal1 SCC 748 wherein a three Judge Bench has observed thus:5 SCR 174] is not correct Consequently the appeal being not maintainable stands dismissed. There shall be no order as to costs.” 15. The rationale for not entertaining a special leave petition challenging the order of High Court rejecting the review petition when main order in the writ petition is not challenged can be easily comprehended. Against the main judgment the SLP having been dismissed earlier the same having become final between the parties cannot be allowed to be affected at the instance of petitioner. When the main judgment of the High Court cannot be effected in any manner no relief can be granted by this Court in the special leave petition filed against order rejecting review application to review the main judgment of the High Court. This Court does not entertain a special leave petition in which no relief can be granted. It is due to this reason that this Court in Bussa Overseas and Properties Private Limited and Anr supra) has held that principle of not entertaining special leave petition against an order rejecting the review petition when main judgment is not under challenge has become a precedential principle. We reiterate the above precedential principle in this 16. The special leave petition against the Division Bench judgment dated 11.03.2015 having been dismissed by this Court earlier on 21.08.2015 and the review petition filed by the petitioner to review the judgment having been dismissed by the impugned judgment we see no reason to entertain this special leave petition. The special leave petition is accordingly dismissed. ( ASHOK BHUSHAN R. SUBHASH REDDY M.R. SHAH New Delhi October 05 2020

Summary: In the case of T.K. David v. Kuruppampady Service Co-operative Bank Ltd. &amp; Ors., ( Special Leave Petition no. (C)NO.10482 Of 2020), the Supreme Court in the judgment dated 5-10-2020,  had laid down that Special Leave Petition, when filed against a High Court order, which rejected the review order, cannot be entertained when the main judgment is not challenged. The brief facts of the case is that the petitioner was an employee of Kuruppampady Service Co-operative Bank. He was suspended and a disciplinary inquiry was conducted by the Bank. The Bank vide order dated 20.03.2003 dismissed the petitioner consequent to the domestic enquiry. Consequently following these occurrences, the Cooperative Arbitration Court by order dated 18.08.2010 gave award by which punishment of dismissal was altered as decrease to a lower rank. In view of the order (dated 18.08.2010) both the petitioner just as the Bank filed Appeal No. 78 of 2010 and No. 81 of 2010 respectively. The Cooperative Tribunal concerning its judgment (dated 16.08.2011) discarded both the advances by which the punishment of compulsory retirement (on 20.03.2003) was forced with terminal advantages or benefits subject to liability, assuming any, appropriately surveyed or duly assessed. Against the request for the Cooperative Tribunal, a writ petition was filed by the petitioner before the learned Judge of the Kerala High Court, in which writ petition was dismissed by judgment (dated 31.07.2013) against which judgment Writ Appeal No. 1313 of 2013 was filed by the petitioner before the Division Bench. The Division Bench of the High Court vide the judgment (dated 11.03.2015) dismissed the writ appeal filed by the petitioner. Then again he filed a Special Leave Petition, consecutively a review petition and a curative petition was also filed, which was also dismissed. Following the above proceeding, the petitioner had filed a Review Petition High Court through a judgment dated 06.02.2020. Aggrieved with the judgment dated 06.02.2020, this special leave petition has been filed. The judges in this case consisted of Justice Ashok Bhushan, R. Subhash Reddy, M.R. Shah. “This Court had earlier considered the question as to whether the special leave petition challenging the order rejecting review petition is maintainable when the main judgment of the High Court is not under challenge. We may refer to judgment of this Court in Municipal Corporation of Delhi Vs. Yashwant Singh Negi, (2013) 2 SCR 550. In the above case, a special leave petition was preferred against an order rejecting the review petition. A preliminary objection was raised that special leave petition is not maintainable since the main judgment is not challenged. In paragraph 1 of the judgment, facts have been noticed, which are to the following effect:- “1. This special leave petition has been preferred against the order dated 11.09.2009 passed by the High Court of Delhi in Review Petition No. 79 of 2009 in LPA No. 1233 of 2006. Mr. Nidhesh Gupta, learned senior counsel appearing for the Respondent raised a preliminary objection that the special leave petition is not maintainable since the main judgment rendered by the High Court on 5.11.2008 in LPA No. 1233 of 2006 was not challenged.” “The rationale for not entertaining a special leave petition challenging the order of High Court rejecting the review petition when main order in the writ petition is not challenged can be easily comprehended. Against the main judgment the SLP having been dismissed earlier the same having become final between the parties cannot be allowed to be affected at the instance of petitioner. When the main judgment of the High Court cannot be effected in any manner, no relief can be granted by this Court in the special leave petition filed against order rejecting review application to review the main judgment of the High Court. This Court does not entertain a special leave petition in which no relief can be granted. It is due to this reason that this Court in Bussa Overseas and Properties Private Limited and Anr. (supra) has held that principle of not entertaining special leave petition against an order rejecting the review petition when main judgment is not under challenge has become a precedential principle. We reiterate the above precedential principle in this case again.”