Co-operative Agricultural Rural Development Bank Ltd. and Another vs Smt. Basanti Swain and Others

A.K. Patnaik, J.—This is an application for review of our judgment dated 28.8. 2002 in O.J.C. No, 10429 of 2000 filed by the Co-operative Agricultural Rural Development Bank Limited, Jagatsinghpur (for short, ''the CARD Bank'') and its Secretary. By the said judgment dated 28.8.2002 the writ petition filed by Smt. Basanti Swain (hereinafter referred to as ''the writ petitioner'') was allowed.

The facts relevant for the purpose of disposal of the review petition briefly are that by an order dated 27.7.1998 of the President of CARD Bank, the writ petitioner was appointed as Junior Assistant in the CARD Bank temporarily with effect from 27.7.1998. Pursuant to the said appointment, the writ petitioner joined as Junior Assistant and was paid Rs. 2000/- on 11.1.1999 and Rs. 5000/- on 31.3.1999. With effect from 1.6.2000, she was not allowed to sign the daily attendance register. She submitted a representation dated 5.6.2000 before the Secretary, CARD Bank making a grievance that she was not allowed to sign the attendance register. When her representation did not yield any result, she filed the writ petition O.J.C. No. 10429 of 2000 on 20.10.2000 for directing the Opp. parties in the writ petition to release the arrear and current salary due and outstanding from 27.7.1998 after deducting a sum of Rs. 7000/- already paid to her. A counter affidavit was filed in the said O.J.C. No. 10429 of 2000 by the CARD Bank and its Secretary contending, inter alia, that the writ petitioner was appointed without any selection by the then President of CARD Bank and without approval of the higher authorities and the appointment was made by manipulation with oblique purpose to give illegal gain to the writ petitioner and to cause financial loss to the CARD Bank. In the said counter affidavit, it was further stated that an enquiry was conducted by the Sub-Assistant Registrar of Co-operative Societies, CARD Bank, Jagatsinghpur pursuant to the direction of the Assistant Registrar of Co-operative Societies, CARD Bank, Jagatsinghpur and the Sub-Assistant Registrar of Co-operative Societies, CARD Bank, Jagatsinghpur had submitted an enquiry report. A copy of the said enquiry report had been annexed to the counter affidavit as Annexure-1/4. The enquiry report revealed the manipulations and frauds committed with regard to the appointment of the writ petitioner and her attendance. In the said counter affidavit of the CARD Bank and its Secretary it was also stated that the attendance register of CARD Bank of 1999 was missing and the attendance registers from the year 2000 and 2001 did not reveal any entry of the name of the writ petitioner.

The Court after considering the said averments in the writ petition and the counter affidavit and after hearing Mr. M. Sinha, learned counsel for the writ petitioner and Mr. Maheswar Satapathy, learned counsel for the CARD Bank and its Secretary held in the judgment dated 28.8.2002 in O.J.C. No. 10429 of 2000 that the findings in the enquiry report submitted by the Sub-Assistant Registrar, CARD Bank, Jagatsinghpur would show that the writ petitioner was, in fact, appointed as Junior Assistant in the CARD Bank in the scale of pay of Rs. 950/- to Rs. 1500/- with affect from 27.7.1998 pursuant to the order passed by the President of the CARD Bank. The Court, however, found that there were some objections to the proposed appointment of the writ petitioner without prior approval of the Registrar of Co-operative Societies but notwithstanding the said objections, the President issued the order of appointment of the writ petitioner as Junior Assistant in the CARD Bank with effect from 27.7.1998 and the said appointment was confirmed by the Board of the CARD Bank in its meeting on 30.6.1999. The Court, however, held in the said judgment that if the appointment of the writ petitioner was found to be irregular or illegal or as one which was manipulated, it was open for the authorities of the CARD Bank to have cancelled the said appointment issued in favour of the writ petitioner in accordance with law. But no steps were taken to cancel the appointment of the writ petitioner as Junior Assistant of the CARD Bank and so long as the appointment of the writ petitioner as Junior Assistant is not cancelled in accordance with law, she was entitled to continue as Junior Assistant of the CARD Bank. The Court further held that it was clear from the findings of the said enquiry report of the Sub-Assistant Registrar, CARD Bank, Jagatsinghpur that the writ petitioner had signed the attendance register regularly upto 31.12.1998 and this position was also admitted in paragraph-14 of the counter affidavit filed on behalf of the CARD Bank and its Secretary with the rider that the ink in which the signature of the writ petitioner had been put on all the days are one and the same ink. The Court also found that the attendance register of the CARD Bank revealed the signatures of the writ petitioner for the period from 27.7.1998 to 31.12.1998. On these facts as found on the available materials, the Court held that unless it is established before a Court or any other competent authority that the signatures of the writ petitioner in the attendance register for the period from 27.7.1998 to 31.12.1998 did not reflect the attendance to duties by the writ petitioner by oral evidence or otherwise, the signatures of the writ petitioner in the attendance register for the period from 27.7.1998 to 31.12.1998 will have to be taken by the Court as correctly reflecting the attendance to duties by the writ petitioner as Junior Assistant in the CARD Bank and hence, the writ petitioner was entitled to her salary for the period from 27.7.1998 to 31.12.1998. For the period after 31.12.1998, the Court found from the aforesaid enquiry report that the attendance register for the period from 1.1.1999 to 31.3.2000 was not available and the attendance register for the period from 1.4.2000 to the date of enquiry did not reveal the name of the writ petitioner in it. In the absence of any material before the Court that the writ petitioner did attend to her duties as Junior Assistant in the CARD Bank for the period from 1.1.1999 till she approached this Court by filing the writ petition, the Court declined to issue any direction to pay the salary of the writ petitioner for the period from 1.1.1999 till the date of filing of the writ petition. But since the writ petitioner had filed the writ petition on 20.10.2000 making a grievance that she was not allowed to sign the attendance register and since the Court had held that the writ petitioner was entitled to continue as Junior Assistant in the CARD Bank on the basis of her appointment order dated 27.7.1998 issued by the President of the CARD Bank, the Court held that the writ petitioner would be entitled to the salary for the period from 20.10.1998 onwards in accordance with her appointment order dated 27.7.1998.

The aforesaid judgment of the Court is sought to be reviewed on the ground that certain documents which were in the custody of the CARD Bank and its Secretary could not be brought into the record and certain relevant propositions of law which a rose for consideration could not also be placed for consideration of the Court. Dr. M. R. Panda, learned counsel for the review applicants-CARD Bank and its Secretary, submitted that the documents annexed to the review petition as Annexure-1 series would show that various circulars have been issued by the Government of Orissa in the Co-operation Department to the Co-operative Banks not to go for fresh recruitment to any post without the approval of the competent authority. He further submitted that Section 33-A read with Section 123-A of the Orissa Co-operative Societies Act, 1962 conferred power on the Government to issue such instructions and circulars prohibiting the Co-operative Societies to make any appointment. Hence, any appointment made contrary to the said instructions/circulars of the Government issued in exercise of the statutory power are illegal and inoperative in the eye of law. Dr. Panda submitted that the judgment dated 28.8.2002 in O.J.C. No. 10429 of 2000 is silent on this point of law and thus, the Court should review the said judgment and reconsider the legality and correctness of the appointment of the writ petitioner as Junior Assistant in the CARD Bank. He further submitted that the enquiry report submitted by Shri C. S. Das, Branch Manager, OSCARD Bank, Cuttack Branch would show that the very appointment of Basanti Swain, the writ petitioner, was irregular and illegal and this document could not be produced before the Court before the hearing of the writ petition despite due diligence on the part of the review applicants. He argued that the aforesaid enquiry report also indicates that the writ petitioner never worked in the CARD Bank even for a day and her appointment is shrouded in mischief, Dr. Panda vehemently argued that since the initial order of appointment was illegal, no right or benefit can flow from it and though this plea was available, the same has not been considered by the Court. Dr. Panda further submitted that this Court has inherent power to review its decision under Article 226 of the Constitution and relied on the decisions of the Supreme Court in Babboo alias Kalyandas and Others Vs. State of Madhya Pradesh, and Ajit Kumar Rath v. State of Orissa and Ors. AIR 2000 SC 85 in support of his aforesaid submissions.

Mr. M. Sinha, learned counsel for Smt. Basanti Swain-writ petitioner, on the other hand, submitted that the contentions now raised in the review petition were also raised in the counter affidavit filed by the CARD Bank and its Secretary in the writ petition O.J.C. No. 10429 of 2000 and no new plea has been advanced by the review applicants. He submitted that the said pleas have been considered by the Court and negatived in the judgment dated 28.8.2002 passed by this Court in O.J.C. No. 10429 of 2000. He vehemently submitted that the said judgment dated 28.8.2002 passed by this Court in O.J.C. No. 10429 of 2000 is binding on the review applicants and the principles of res judicata in Section 11 of the CPC and explanations IV and VII thereof relating to the rule of constructive res judicata are squarely applicable to the present ease. Mr. Sinha cited the decision of the Supreme Court in Prahlad Singh Vs. Col. Sukhdev Singh, and the decision of the Full Bench of this Court in Rajkishore Mohanty and Another Vs. Kangali Moharana and Others, in support of his aforesaid submissions.

In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma (supra), the Supreme Court considered the scope and power of review in respect of the judgment and order passed by the High Court under Article 226 of the Constitution and held :

"...It is true as observed by this Court in Shivdeo Singh v. State of Punjab (AIR 1963 SC 1909) there is nothing in Article 226 of the Constitution to preclude a 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".

Thus, as per the aforesaid decision of the Supreme Court, the power of review 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 limits to the exercise of such power of review. It can 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 can also be exercised where some mistake or error apparent on the face of the record is found or on some other analogous ground. But it cannot be exercised on the ground that the decision was erroneous on merits because that would be within the province of a Court of appeal and will not be within the scope of review. In the aforesaid case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma (supra), the Judicial Commission had reviewed, his predecessor''s order on two grounds. The first ground was that the predecessor had over-looked two important documents Exhibits A/1 and A/3 which showed that the respondents were in possession of the sites even in the year 1948-49 and that the grants must have been made even by them. The second ground was that there was a patent illegality in permitting the appellant to question, in a single writ petition, settlement made in favour of the different respondents. The Supreme Court held that both the aforesaid grounds were hardly grounds for review. The two documents which were part of the record were not considered by the Court at the time of issue of writ under Article 226 of the Constitution and cannot be a ground for review specially when the two documents were not even relied upon by the parties in the affidavits filed before the Court in the proceeding under Article 226 of the Constitution. That several instead of one writ petition should have been filed was a mere question of procedure which certainly would not justify a review. The Supreme Court, therefore, held that the Judicial Commissioner acted without jurisdiction in allowing the review.

In Ajit Kumar Rath v. State of Orissa and others (supra) the Supreme Court held that the power of review available to the Administrative Tribunal is the same as has been given to a Court u/s 114 read with Order 47, CPC and is not absolute and is hedged in by the restrictions indicated in Order 47, CPC. The restrictions on power of review, which have been discussed in the said judgment are quoted herein below:

"...The power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression "any other sufficient reason" used in Order 47, Rule 1 means a reason sufficiently analogous to those specified in the rule".

Thus, as per the aforesaid judgment, a review cannot be claimed or asked for correction of an erroneous view taken earlier and can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. The Supreme Court further held in the aforesaid judgment in Ajit Kumar Rath v. State of Orissa and Ors. (supra) that any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of the liberty given to the Tribunal under the Act to review its judgment. The power of review of an order or judgment under Article 226 of the Constitution thus has definite limits and High Court can allow review only on discovery of new and important matter or evidence which, after due diligence, was not within knowledge of the applicant or which he could not produce at the time the order was passed, and can also be exercised to correct any error apparent or some similar ground. But the High Court cannot rehear the writ petition on any point of law or fact nor correct any erroneous decision on merits which are within the domain of appeal.

Bearing in mind the aforesaid principles relating to the power of review of the High Court in respect of a judgment or an order under Article 226 of the Constitution, we may now examine the grounds of review in the present case. The first ground is that the instructions/circulars of the Government of Orissa in Co-operation Department in Annexure-1 series to the review petition are statutory instructions issued by the Government in exercise of its power under Sections 33-A and 123-A of the Orissa Co-operative Societies Act and appointment of Smt. Basanti Swain, the writ petitioner contrary to the said statutory instructions/circulars were illegal and hence, no benefit would flow from such appointment to the writ petitioner. In our judgment dated 28.8.2002 in O.J.C. No. 10429 of 2000, we have considered the said contention of the CARD Bank and its Secretary and yet, we have held that if the appointment of the writ petitioner as Junior Assistant of the CARD Bank by order dated 27.7.1998 is found to be irregular and illegal or as one which was manipulated, it was open for the authorities of the CARD Bank to have cancelled the said, appointment issued in favour of the writ petitioner in accordance with law. But as no steps were taken to cancel the appointment of the writ petitioner as Junior Assistant of the CARD Bank, she was entitled to continue as Junior Assistant in the CARD Bank. If according to the review applicants, the correct position of law was that even without cancellation of the appointment of the writ petitioner as Junior Assistant by order dated 27.7.1998, the appointment being irregular or illegal, no right will flow to the writ petitioner from the same, it was open to the review applicants to challenge the said conclusions of this Court in the judgment dated 28.8.2002 in O.J.C. No. 10429 of 2000 in appeal and this Court in exercise of its power of judicial review cannot enter into the domain of the appellate court or rehear the contention of the parties on this point of law afresh.

The next ground for review in this review petition is that the review applicants despite their due diligence could not produce before the Court the enquiry report submitted by Shri C. S. Das, Branch Manager, OSCARD Bank, Cuttack Branch which would go to show that the writ petitioner''s appointment was shrouded in mischief and she never worked in the bank even for a day. But the case of the review applicants, CARD Bank and its Secretary, in their counter affidavit filed in O.J.C. No. 10429 of 2000 was that the appointment of the writ petitioner as Junior Assistant in the CARD Bank by the order dated 27.7.1998 of the President of the CARD Bank was irregular and illegal and without the approval of the higher authorities and that the writ petitioner did not attend to her duties as such Junior Assistant after such appointment and in support of the said case in the counter affidavit, the review applicants had annexed a copy of the enquiry report of Shri B.C. Mohanty, Sub-Assistant Registrar, CARD Bank, Jagatsinghpur. After considering the said enquiry report annexed as Annexure-1/4 to the counter affidavit filed by the review applicants in the said O.J.C. No. 10429 of 2000, the Court held in its judgment dated 28.8.2002 that if the appointment of the writ petitioner was found to be irregular or illegal or as one which was manipulated, it was open for the authorities of the CARD Bank to have cancelled the said appointment and so long as the appointment of the writ petitioner was not cancelled, she was entitled to continue as Junior Assistant in the CARD Bank. Again after considering the said report, the Court held in its judgment dated 28.8.2002 that the writ petitioner had attended to her duties as Junior Assistant for the period from 27.7.1998 to 31.12.1998 and was entitled to her salary for the said period. If the CARD Bank and its Secretary wanted to rely on the report of Shri C. S. Das, Branch Manager, OSCARD Bank, Cuttack Branch which was now produced before the Court, they should have produced the said report before the Court at any time before the judgment dated 28.8.2002 was delivered by the Court in O.J.C. No. 10429 of 2000. The said report of Shri C. S. Das is pursuant to an enquiry held on 9.5.2000, whereas O.J.C. No. 10429 of 2000 was heard and decided on 28.8.2002, more than two years thereafter. It is only stated in the review petition that the review applicants had no knowledge about the said report before 28.8.2002 as the said report was a confidential report. But soon after the judgment was delivered on 28.8.2002 in O.J.C. No. 10429 of 2000, the review applicants have produced a copy of the said report before the Court. We have no doubt in our mind that if the review applicants were diligent, they could have produced before the Court the aforesaid report of Shri C. S. Das, Branch Manager, OSCARD Bank, Cuttack Branch. It is therefore difficult to believe that despite due diligence, the said report of Shri C. S. Das, Branch Manager, OSCARD Bank, Cuttack Branch was not within the knowledge of the CARD Bank and its Secretary or could not be produced by them at the time before O.J.C. No. 10429 of 2000 was heard and decided on 28.8.2002.

We, therefore, hold that the review applicants have not made out any ground for review of our judgment dated 28.8.2002 passed in O.J.C. No. 10429 of 2000 and we dismiss the review petition. Considering the facts and circumstances of the case, the parties shall bear their own costs.

M. Papanna, J.

I agree.