T. K. DAVID versus KURUPPAMPADY SERVICE CO-OPERATIVE BANK LTD. & ORS. on 5 October 2020

1. This special leave to appeal has been filed against the DivisionFBench judgment of the Kerala High Court dated 06.02.2020 rejectingthe Review Petition No. 805 of 2018 filed by the petitioner in Writ AppealNo. 399 of 2014.

2. Brief facts necessary to consider this special leave petitionneed to be noted.

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3. The petitioner was an employee of Kuruppampady ServiceCo-operative Bank. Petitioner was suspended and disciplinary inquirywas conducted by the Bank. The Bank vide order dated 20.03.2003dismissed the petitioner consequent to domestic enquiry. There has beenseries of litigation between the petitioner and the Bank and thereafter H

Cooperative Arbitration Court by order dated 18.08.2010 gave awardby which punishment of dismissal was modified as reduction to a lowerrank. Against the order dated 18.08.2010 both the petitioner as well asthe Bank filed Appeal No. 78 of 2010 and No. 81 of 2010 respectively.The Cooperative Tribunal vide its judgment dated 16.08.2011 disposedof both the appeals by which the punishment of compulsory retirementon 20.03.2003 was imposed with terminal benefits subject to liability, ifany, duly assessed. Against the order of the Cooperative Tribunal a writpetition was filed by the petitioner before the learned Single Judge of theKerala High Court, which writ petition was dismissed by judgment dated31.07.2013 against which judgment Writ Appeal No. 1313 of 2013 wasfiled by petitioner before the Division Bench. The Division Bench of theHigh Court vide its judgment dated 11.03.2015 dismissed the writ appealfiled by the petitioner. Aggrieved by the Division Bench judgment dated11.03.2015, the petitioner filed a Special Leave Petition No. 24231 of2015 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 ishereby dismissed.”

4. After dismissal of special leave petition, a Review Petition No.1521 of 2016 was filed in this Court, which too was dismissed on02.03.2016. The petitioner also filed a Curative Petition No. 245 of 2016,which also was dismissed on 12.05.2016. After the aforesaid proceedingsin this Court, the petitioner filed a Review Petition, R.P. No. 805 of 2018in Writ Appeal No.399 of 2014, which review petition has been dismissedby the High Court vide its judgment dated 06.02.2020. Aggrieved withthe judgment dated 06.02.2020, this special leave petition has been filed.

5. Learned counsel for the petitioner challenging the order on thereview submits that earlier dismissal of the special leave petition on21.08.2015 shall not operate as res judicata. He further submits that thepetitioner was dismissed on petty charges due to political vendetta. Hefurther contends that Cooperative Arbitration Court, which has imposedpunishment of reduction in rank was wrongly substituted by compulsoryretirement by the Cooperative Tribunal. Learned counsel for the petitionerhas also referred to judgment of this Court in Kunhayammed and Ors.Vs. State of Kerala and Anr., (2000) 6 SCC 359.

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[2020] 13 S.C.R.

A6. We have heard learned counsel for the petitioner and haveperused the records.

7. The earlier Special Leave Petition (C) No. 24231 of 2015 wasfiled by the petitioner challenging the Division Bench judgment dated11.03.2015 by which his Writ Appeal was dismissed. The Review PetitionBNo. 805 of 2018 giving rise to this special leave petition has been filed toreview the judgment dated 11.03.2015 of the Division Bench. A reviewpetition as well as curative petition was filed by the petitioner afterdismissal of his earlier special leave petition. The judgment of this Courtin Kunhayammed and Ors. Vs. State of Kerala and Anr. (supra)laid down that where the special leave petition is dismissed there beingCno merger, the aggrieved party is not deprived of any statutory right ofreview, if it was available and he can pursue it. In paragraph 34, thisCourt made following observations:-

“34. ................But where the special leave petition is dismissed— there being no merger, the aggrieved party is not deprived ofDany statutory right of review, if it was available and he can pursueit. It may be that the review court may interfere, or it may notinterfere depending upon the law and principles applicable tointerference in the review..................”

8. The Division Bench of the High Court by the impugned judgmentEdated 06.02.2020 has not dismissed the review petition as notmaintainable. The High Court proceeded to meticulously examine thequestion and after consideration came to the conclusion that there is nomistake or omission amounting to error apparent on the face of the record.In paragraphs 8 and 9 of the judgment, High Court held:-F“8.

“8. This Court in paragraph Nos.11 and 12 of the judgment passedin writ appeal, elaborately considered the conversion of punishmentto compulsory retirement with sufficient reasonings and justifiedthe Co-operative Tribunal for setting aside the punishment ofreduction to lower rank and imposing compulsory retirement. TheGaforesaid findings are made consciously after making duedeliberations on the materials on record and the findings of thesingle Bench of this Court. The findings of this Court are supportedby the decisions of the Apex Court in Hussain Sasansaheb Kaladgiv. State of Maharashtra [AIR 1987 SC 1627] and J.K.SyntheticsLtd. v. K.P.Agarwal and Another [(2007) (2) SCC 433].

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T.K. DAVID v. KURUPPAMPADY SERVICE CO-OPERATIVEBANK LTD. [ASHOK BHUSHAN, J.]

9. So there is no omission to consider the legality or correctnessof the punishment or power of the Co-operative Tribunal to imposesuch a punishment of compulsory retirement. There is no mistakeor omission amounting to error apparent on the face of the record,as contended by the revision petitioner. In view of the legalproposition laid down by the Supreme Court in the decisionsreferred above, this Court is not inclined to rehear or reconsiderthe above findings, as the review is not an appeal in disguise.Hence, the review petition fails and is dismissed accordingly.”

9. The review petition filed by the petitioner, thus, was rejected onmerits.

10. The first question, which need to be considered is as to whetherthe present special leave petition challenging the above review orderdated 06.02.2020 is maintainable when the Division Bench judgmentdated 11.03.2015 has neither been challenged nor can be challenged inthis special leave petition. The consequence of the rejection of the reviewpetition is that the High Court has refused to review the judgment of theDivision Bench dated 11.03.2015 passed in Writ Appeal No. 399 of 2014.As noted above, the Division Bench judgement dated 11.03.2015 wasquestioned by petitioner by special leave petition in this Court, whichwas 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 specialleave petition, the petitioner cannot challenge the earlier order dated11.03.2015 against which he unsuccessfully has earlier filed the specialleave petition. When the order dated 11.03.2015 is unassailable by thepetitioner in this special leave petition, no relief can be granted topetitioner, which may have effect in any manner diluting, modifying orreversing the earlier judgment dated 11.03.2015.

11. This Court had earlier considered the question as to whetherthe special leave petition challenging the order rejecting review petitionis maintainable when the main judgment of the High Court is not underchallenge. We may refer to judgment of this Court in MunicipalCorporation of Delhi Vs. Yashwant Singh Negi, (2013) 2 SCR 550.In the above case, a special leave petition was preferred against anorder rejecting the review petition. A preliminary objection was raisedthat special leave petition is not maintainable since the main judgment isnot challenged. In paragraph 1 of the judgment, facts have been noticed,which are to the following effect:- AB

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“1. This special leave petition has been preferred against the orderdated 11.09.2009 passed by the High Court of Delhi in ReviewPetition No. 79 of 2009 in LPA No. 1233 of 2006. Mr. NidheshGupta, learned senior counsel appearing for the Respondent raiseda preliminary objection that the special leave petition is notmaintainable since the main judgment rendered by the High Courton 5.11.2008 in LPA No. 1233 of 2006 was not challenged.”

12. This Court after considering the earlier judgment of this Courtheld that special leave petition is not maintainable. In paragraphs 3 and 4following was laid down:- “3. We find ourselves unable to agree with the views expressedby this Court in Eastern Coalfields Limited (supra). In our view,once the High Court has refused to entertain the review petitionand the same was dismissed confirming the main order, there isno question of any merger and the aggrieved person has tochallenge the main order and not the order dismissing the reviewpetition because on the dismissal of the review petition the principleof merger does not apply. In this connection reference may bemade to the Judgment of this Court in Manohar S/o ShankarNale v. Jaipalsing S/o Shivlalsing Rajput (2008) 1 SCC520 wherein this Court has taken the view that once the reviewpetition is dismissed the doctrine of merger will have no applicationwhatsoever. This Court in DSR Steel (Private) Limited v. Stateof Rajasthan (2012) 6 SCC 782 also examined the varioussituations which might arise in relation to the orders passed inreview petitions. Reference to paragraphs 25, 25.1, 25.2 and 25.3is made, which are extracted below for ready reference:

“25. Different situations may arise in relation to review petitionsfiled before a court or tribunal.

25.1. One of the situations could be where the reviewapplication is allowed, the decree or order passed by the courtor tribunal is vacated and the [pic]appeal/proceedings in whichthe same is made are reheard and a fresh decree or orderpassed in the same. It is manifest that in such a situation thesubsequent decree alone is appealable not because it is anorder in review but because it is a decree that is passed in aproceeding after the earlier decree passed in the very same T.K. DAVID v. KURUPPAMPADY SERVICE CO-OPERATIVEBANK LTD. [ASHOK BHUSHAN, J.]

proceedings has been vacated by the court hearing the reviewpetition.

25.2. The second situation that one can conceive of is where acourt or tribunal makes an order in a review petition by whichthe review petition is allowed and the decree/order under reviewis reversed or modified. Such an order shall then be a compositeorder whereby the court not only vacates the earlier decree ororder but simultaneous with such vacation of the earlier decreeor order, passes another decree or order or modifies the onemade earlier. The decree so vacated reversed or modified isthen the decree that is effective for the purposes of a furtherappeal, if any, maintainable under law.

25.3. The third situation with which we are concerned in theinstant case is where the revision petition is filed before theTribunal but the Tribunal refuses to interfere with the decreeor order earlier made. It simply dismisses the review petition.The decree in such a case suffers neither any reversal nor analteration or modification. It is an order by which the reviewpetition is dismissed thereby affirming the decree or order. Insuch a contingency there is no question of any merger andanyone aggrieved by the decree or order of the Tribunal orcourt shall have to challenge within the time stipulated by law,the original decree and not the order dismissing the reviewpetition. Time taken by a party in diligently pursing the remedyby way of review may in appropriate cases be excluded fromconsideration while condoning the delay in the filing of theappeal, but such exclusion or condonation would not imply thatthere is a merger of the original decree and the order dismissingthe review petition.”

4. We are in complete agreement with the principle laid down bythis Court in DSR Steel (Private) Limited (supra) and applyingthe 3rd situation referred to therein in paragraph 25.3, we areinclined to dismiss this special leave petition. We find force in thecontention made by the learned senior counsel appearing for therespondent that this SLP is not maintainable, since the main orderwas not challenged but only the order passed in the review petitionalone was challenged in this SLP. Hence, the SLP is, therefore,not maintainable and the same is dismissed.

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A13. We may also notice another elaborate judgment of this Courtin Bussa Overseas and Properties Private Limited and Anr. Vs.Union of India and Anr., (2016) 4 SCC 696. In the above case alsospecial leave petition was filed against the Division Bench judgment ofthe High Court rejecting the review petition. Facts have been noticed inparagraph 1, which is to the following effect:-B

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“...............The present appeal is directed against the judgmentand order dated 14-9-2004 passed by the Division Bench of theHigh Court of Judicature at Bombay in Bussa Overseas &Properties (P) Ltd. v. Union of India [Notice of Motion No. 62of 2004, decided on 14-9-2004 (Bom)] whereby the High CourtCwhile dealing with an application of review has declined to condonethe delay of 129 days in preferring the application for review andalso opined that the application for review was totally devoid ofmerit. The expression of the said view led to dismissal of theapplication for review.”

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14. In the above case, this Court noticed several earlier judgmentsand accepting the preliminary objection held that the special leave petitionis 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 themain order and a different order is passed, definitely the mainorder does not exist. In that event, there is no need to challengethe main order, for it is the order in review that affects the aggrievedparty.

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30. The decisions pertaining to maintainability of special leavepetition or for that matter appeal have to be seemly understood.Though in the decision in Shanker Motiram Nale [ShankerMotiram Nale v. Shiolalsing Gannusing Rajput, (1994) 2 SCC753] the two-Judge Bench referred to Order 47 Rule 7 of theCode of Civil Procedure that bars an appeal against the order ofthe court rejecting the review, it is not to be understood that theCourt has curtailed the plenary jurisdiction under Article 136 ofthe Constitution by taking recourse to the provisions in the Codeof Civil Procedure. It has to be understood that the Court hasevolved and formulated a principle that if the basic judgment isnot assailed and the challenge is only to the order passed in review, F

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this Court is obliged not to entertain such special leave petition.The said principle has gained the authoritative status and has beentreated as a precedential principle for more than two decades andwe are disposed to think that there is hardly any necessity not tobe guided by the said precedent.

31. In this context, we may profitably reproduce a passagefrom State of A.P. v. A.P. Jaiswal [(2001) 1 SCC 748] wherein athree-Judge Bench has observed thus: (SCC p. 761, para 24)

“24. Consistency is the cornerstone of the administration ofjustice. It is consistency which creates confidence in the systemand this consistency can never be achieved without respect tothe rule of finality. It is with a view to achieve consistency injudicial pronouncements, the courts have evolved the rule ofprecedents, principle of stare decisis, etc. These rules andprinciple are based on public policy….”

32. In view of the aforesaid analysis, the submission of Mr. Gulatithat all the subsequent judgments are per incuriam as they havenot taken into consideration the decision renderedin Thungabhadra Industries Ltd. [Thungabhadra IndustriesLtd. v. State of A.P., AIR 1964 SC 1372 : (1964) 5 SCR 174] isnot 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 petitionchallenging the order of High Court rejecting the review petition whenmain order in the writ petition is not challenged can be easilycomprehended. Against the main judgment the SLP having been dismissedearlier the same having become final between the parties cannot beallowed to be affected at the instance of petitioner. When the mainjudgment of the High Court cannot be effected in any manner, no reliefcan be granted by this Court in the special leave petition filed againstorder rejecting review application to review the main judgment of theHigh Court. This Court does not entertain a special leave petition inwhich no relief can be granted. It is due to this reason that this Court inBussa Overseas and Properties Private Limited and Anr. (supra)has held that principle of not entertaining special leave petition againstan order rejecting the review petition when main judgment is not underchallenge has become a precedential principle. We reiterate the aboveprecedential principle in this case again.

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AThe special leave petition against the Division Bench judgmentdated 11.03.2015 having been dismissed by this Court earlier on 21.08.2015and the review petition filed by the petitioner to review the judgmenthaving been dismissed by the impugned judgment, we see no reason toentertain this special leave petition. The special leave petition isaccordingly dismissed.B

Devika Gujral

Special Leave Petition dismissed

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