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.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C)NO.10482 OF 2020
T.K. DAVID ...PETITIONER (S)
VERSUS
KURUPPAMPADY SERVICE
CO-OPERATIVE BANK LTD. & ORS. ...RESPONDENT(S)
J U D G M E N T
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. 805 of 2018 filed by the petitioner in
Writ Appeal No. 399 of 2014.
2. Brief facts necessary to consider this special
leave petition need to be noted.
3. The petitioner was an employee of Kuruppampady
Service Co-operative Bank. Petitioner was suspended
2
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. 1313 of 2013 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.
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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:-
“Heard.
Delay condoned.
We do not see any merit in this special
leave petition which is hereby dismissed.”
4. 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. 245 of
2016, which also was dismissed on 12.05.2016. After
the aforesaid proceedings in this Court, the
petitioner filed a Review Petition, R.P. No. 805 of
2018 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.
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5. 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., (2000) 6 SCC 359.
6. We have heard learned counsel for the petitioner
and have perused the records.
7. The earlier Special Leave Petition (C) No. 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
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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
interference in the
review..................”
8. 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
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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 [AIR 1987 SC 1627] and
J.K.Synthetics Ltd. v. K.P.Agarwal and
Another [(2007) (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
accordingly.”
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9. 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
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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, (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
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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.”
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 Limited (supra).
In our view, once the High Court has
refused to entertain the review petition
and the same was dismissed confirming
the main order, there is no question of
any merger and the aggrieved person has
to challenge the main order and not the
order dismissing the review petition
because on the dismissal of the review
petition the principle of merger does
not apply. In this connection reference
may be made to the Judgment of this
Court in Manohar S/o Shankar
Nale v. Jaipalsing S/o Shivlalsing
Rajput (2008) 1 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 (Private) Limited v. State
of Rajasthan (2012) 6 SCC 782 also
examined the various situations which
might arise in relation to the orders
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passed in review petitions. Reference to
paragraphs 25, 25.1, 25.2 and 25.3 is
made, which are extracted below for
ready reference:
“25. Different situations may
arise in relation to review
petitions filed before a court
or tribunal.
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 [pic]appeal/proceedings in
which the same is made are
reheard and a fresh decree or
order passed in the same. It is
manifest that in such a
situation the subsequent decree
alone is appealable not because
it is an order in review but
because it is a decree that is
passed in a proceeding after the
earlier decree passed in the
very same proceedings has been
vacated by the court hearing the
review petition.
25.2. The second situation that
one can conceive of is where a
court or tribunal makes an order
in a review petition by which
the review petition is allowed
and the decree/order under
review is reversed or modified.
Such an order shall then be a
composite order whereby the
court not only vacates the
earlier decree or order but
simultaneous with such vacation
of the earlier decree or order,
passes another decree or order
or modifies the one made
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earlier. The decree so vacated
reversed or modified is then the
decree that is effective for the
purposes of a further appeal, if
any, maintainable under law.
25.3. The third situation with
which we are concerned in the
instant case is where the
revision petition is filed
before the Tribunal but the
Tribunal refuses to interfere
with the decree or order earlier
made. It simply dismisses the
review petition. The decree in
such a case suffers neither any
reversal nor an alteration or
modification. It is an order by
which the review petition is
dismissed thereby affirming the
decree or order. In such a
contingency there is no question
of any merger and anyone
aggrieved by the decree or order
of the Tribunal or court shall
have to challenge within the
time stipulated by law, the
original decree and not the
order dismissing the review
petition. Time taken by a party
in diligently pursing the remedy
by way of review may in
appropriate cases be excluded
from consideration while
condoning the delay in the
filing of the appeal, but such
exclusion or condonation would
not imply that there is a merger
of the original decree and the
order dismissing the review
petition.”
4. We are in complete agreement with the
principle laid down by this Court in DSR
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Steel (Private) Limited (supra) and
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., (2016)
4 SCC 696. In the above case also special leave
petition was filed against the Division Bench
judgment of the High Court rejecting the review
petition. Facts have been noticed in paragraph 1,
which is to the following effect:-
“...............The present appeal is
directed against the judgment and order
dated 14-9-2004 passed by the Division
Bench of the High Court of Judicature
at Bombay in Bussa Overseas &
Properties (P) Ltd. v. Union of
India [Notice of Motion No. 62 of 2004,
decided on 14-9-2004 (Bom)] whereby 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.
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The expression of the said view led to
dismissal of the application for
review.”
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
32:-
“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
party.
30. The decisions pertaining to
maintainability of special leave
petition or for that matter appeal have
to be seemly understood. Though in the
decision in Shanker Motiram
Nale [Shanker Motiram
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
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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
said precedent.
31. In this context, we may profitably
reproduce a passage from State of
A.P. v. A.P. Jaiswal [(2001) 1 SCC 748]
wherein a three-Judge Bench has
observed thus: (SCC p. 761, para 24)
“24. Consistency is the
cornerstone of the
administration of justice. It
is consistency which creates
confidence in the system and
this consistency can never be
achieved without respect to
the rule of finality. It is
with a view to achieve
consistency in judicial
pronouncements, the courts
have evolved the rule of
precedents, principle of stare
decisis, etc. These rules and
principle are based on public
policy….”
32. In view of the aforesaid analysis,
the submission of Mr. Gulati that all
the subsequent judgments are per
incuriam as they have not taken into
consideration the decision rendered
in Thungabhadra Industries
Ltd. [Thungabhadra Industries
Ltd. v. State of A.P., AIR 1964 SC 1372
: (1964) 5 SCR 174] is not correct.
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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
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reiterate the above precedential principle in this
case again.
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.
......................J.
( ASHOK BHUSHAN )
......................J.
( R. SUBHASH REDDY )
......................J.
( M.R. SHAH )
New Delhi,
October 05, 2020.
