Good News For EPS 95 Pensioners: Kerala High Court Dismisses Review Petition Filed By EPFO & CBT, Kerala High Court Order

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Good News For EPS 95 Pensioners, IN THE HIGH COURT OF KERALA AT ERNAKULAM, PRESENT

THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

RP.No.267 OF 2021 IN WP(C). 26944/2019

AGAINST THE JUDGMENT IN WP(C) 26944/2019(P) OF HIGH COURT OF KERALA

REVIEW PETITIONER/RESPONDENTS 2 & 3 IN WPC:

1. BOARD OF TRUSTEES OF EMPLOYEES PROVIDENT FUND ORGANIZATION,  REPRESENTED BY THE CENTRAL PROVIDENT COMMISSIONER, BHAVISYA NIDHI BHAVAN, 14, BHIKAJI CAMA PALACE, NEW DELHI-110 066

2. REGIONAL PROVIDENT FUND COMMISSIONER, EPF ORGANISATION, SUB REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, KALOOR, COCHIN-682 017

BY ADV. SRI. SAJEEV KUMAR K.GOPAL

RESPONDENTS/PETITIONER 1 & RESPONDENTS 1 & 4 IN WPC:

1 T. RADHAKRISHNAN,  S/O. LATE THANKAPPAN ASARI, NEERCHALIL HOUSE, MANATHUPADOM ROAD, UNICHIRA, ERNAKULAM-682 033, (P.F.NO.KR/2729/175)(PPO NO.KR/ KCH/ 00083431)

2 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF LABOUR AND EMPLOYMENT, GOVERNMENT OF INDIA, SHRAM SHAKTI BHAVAN, RAFI MMARG, NEW DELHI-110 001

3 ERNAKULAM REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LTD. NO.E-150 (D), REPRESENTED BY ITS MANAGING DIRECTOR, HEAD OFFICE EDAPPALLY, COCHIN-682 024

SRI K SUDHINKUMAR, SC

THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 08.04.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

ORDER

This Review Petition is preferred seeking review of the judgment dated 18.2.2020 in W.P.(C) No.26944 of 2019.

2. I have heard Sri. Sajeev Kumar K. Gopal, the learned counsel appearing for the review petitioner and Sri. Prakash M.P., the learned counsel appearing for the party respondent.

3. It is by now settled that review of a judgment is permitted only when it is shown that the judgment suffers from any error apparent on the face of the record.




4. The contention advanced by the petitioner while seeking review of the judgment, is that though the challenge raised by the EPFO to the judgment of a Division Bench of this Court in Sasikumar P. V. Union of India and Ors.1 was repelled by the Apex Court in SLP(C) No.8658-8659 of 2019, a review petition filed against the judgment was entertained by the Apex Court and the same is pending. It is also submitted that the Central Government has also preferred an appeal and the same is pending. It is further submitted that their Lordships of the Division Bench in the judgment dated 21.12.2020 in W.A.No.944/2020 had expressed doubts about the correctness of Sasikumar (supra). According to the petitioner, as this Court in the judgment under Review placed profused reliance on Sasikumar (supra), due to the aforesaid reasons, the judgment is to be reviewed.

Good News For EPS 95 Pensioners: Kerala High Court Dismisses Review Petition Filed By EPFO & CBT

5. I have considered the submissions advanced.

6. 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 powers which may enable an appellate court to correct all manner of errors committed by the subordinate court.

7. In Haridas Das vs. Usha Rani Banik (Smt.) and Others2, while considering the scope and ambit of Section 114 CPC read with Order 47 Rule 1 CPC it is observed and the Apex Court had occasion to hold as follows in paragraph 13 to 18 as under:




“ 13. In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it ‘may make such order thereon as it thinks fit. The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing ‘on account of some mistake or error apparent on the face of the records or for any other sufficient reason’. The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 which states that the fact that the decision on a question of law on which then judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection.




14. In Meera Bhanja v. Nirmala Kumari Choudhury, [(1995) 1 SCC 170] it was held that:

“8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. In connection with the limitation of the powers of the court under Order 47 Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution, this Court, in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389 speaking through Chinnappa Reddy, J. has made the following pertinent observations:

‘It is true there is nothing in Article 226 of the Constitution to preclude the 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.’”

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15. A perusal of Order 47 Rule 1 shows that review of a judgment or an order could be sought: (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of the record or any other sufficient reason.




16. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047, this Court held that there are definite limits to the exercise of power of review. In that case, an application under Order 47 Rule 1 read with Section 151 of the Code was filed which was allowed and the order passed by the Judicial Commissioner was set aside and the writ petition was dismissed. On an appeal to this Court it was held as under: (SCC p. 390, para 3) “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 powers which may enable an appellate court to correct all manner of errors committed by the subordinate court.”




17. The judgment in Aribam case has been followed in Meera Bhanja. In that case, it has been reiterated that an error apparent on the face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any long drawn process of reasoning. The following observations in connection with an error apparent on the face of the record in Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137 were also noted: “An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.”




8. The petitioner has not been able to show that there is any error manifest on the face of the order. What is contended is that proceedings are pending before superior courts and in that view of the matter, the judgment ought to be reviewed. It is settled that while considering an application for review, the court must confine its adjudication with regard to the material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent. It is also settled that review is not maintainable on the basis of a subsequent decision/judgment of a co-ordinate or larger bench of the court or of a superior court. A review petition can by no means be an appeal in disguise.




Having considered the matter in all perspectives, I find that the petitioner has not made out any grounds for review. This review petition will stand dismissed.

Sd/-

RAJA VIJAYARAGHAVAN V

NS JUDGE

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