T.K. David vs Kuruppampady Service Co-operative Bank Limited and Others

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. Signature Not Verified Digitally signed by MEENAKSHI KOHLI Date: 2020.10.05 16:29:07 IST Reason:

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. 3

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.

4

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 5

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 6

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.” 7

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 8

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 9

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 10

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 11

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 12

Steel (Private) Limited (supra) and rd applying the 3 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. 13

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 14

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. 15

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 16

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.