T.K. David vs Kuruppampady Service Co … on 5 October, 2020


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Supreme Court of India

T.K. David vs Kuruppampady Service Co … on 5 October, 2020

Author: Ashok Bhushan

Bench: Ashok Bhushan, R. Subhash Reddy, M.R. Shah

                                                    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.

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
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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
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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
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.



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