JUDGMENT
J. Bhattacharya, J.
1. In this application the applicant has prayed for review and/or recall of the Judgment and/or order dated 14th June, 2005 passed by the Division Bench of this Court in the instant Mandamus Appeal being MAT No.009 of 2005.
2. Before entering into the merit of this application for review I must keep in mind that the Court cannot be oblivious about the scope of review of its own order and/or Judgment under section 114 read with Order 47 Rule 1 of the Code of Civil Procedure.
3. Review cannot be equated at par with the appeal. The scope and/ or ambit of interference in appeal is much more wider than that of review. In appeal, the Appellate Court is absolutely free to consider the legality and/or validity of the order impugned in the appeal. Both mistake of law and fact can be rectified in appeal. But the power of the Court to reivew its own Judgment is circumscribed by limitation as prescribed under section 114 read with Order 47 of the Code of Civil Procedure.
4. An application for review under Order 47 Rule 1 of the Code of Civil Procedure will be maintainable not only upon discovery of a new and important piece of evidence but also when there exists an error apparent on the face of the record. Review can also be made, if the same is necessitated, on account of some mistake or for any other sufficient reason.
5. Here in the instant case the review has been sought for by the applicant on the ground that an error apparent on the face of the record exists in the instant case and as such the said error is required to be rectified by way of review.
6. Let me consider as to whether the error which is pointed out by Mrs. Anjili Nag, learned Advocate for the applicant, constitutes an error apparent on the face of the record for which review may be necessitated.
7. For appreciation of the merit of this application short background of this case is given below:-
8. Admittedly, the service condition of the applicant, who was Serang at the relevant time, was regulated by the FR & SR Rules. It is also an admitted fact that pursuant to the notice inviting option issued by the Director of Shipping Services in terms of the order passed by the learned single Judge of this Court on 22nd May, 2002 in W.P. No.65 of 2002 (Inter- Island Seamen Union & Anr. v. UOI & Ors.), the applicant exercised his option to opt for the terms and conditions under the M.S. Act, 1958.
9. A dispute arose between the parties when the respondent authority refused to provide the same wages to the applicant, which is given to the employees of other M.S. vessels as per Merchant Shipping Act. 1958. According to the concerned authority, the benefit, which the applicant is claiming cannot be given to him in terms of his option as the claim of the applicant exceeds the benefits which the concerned authority decided to give to its employees who opt for the benefits as per the notice inviting option. In fact, the benefits, which the authority proposed to give to its employees opting for such change, have been specifically mentioned in the notice inviting option.
10. It is an admitted position that the benefits, which the concerned authority proposed to give in terms of the notice inviting such option, have been given to the applicant herein.
11. The applicant, however, claims that the option, which the applicant exercised, was a conditional option. The applicant further claims that while exercising the option the applicant never accepted the terms contained in the said notice inviting option. On the contrary, the applicant claims that he exercised the said option for getting the same wages, which is given to the employees of other MS Vessels as per Merchant Shipping Act, 1958. According to the applicant, when the conditional option, which was given by the applicant was accepted by the concerned authority, the said authority cannot deny the grant of such benefits to the applicant, after its acceptance.
12. The applicant further claims that the said dispute however could not be sorted out between the parties amicably as the parties could not come to a consensus. As such, the applicant ultimately applied for withdrawal of the said option, which also was disallowed by the concerned authority on the ground that the option once exercised is final and is not retrievable.
13. Accordingly, a writ petition was filed by the applicant before the learned single Judge of this Court inter alia praying for issuance of a direction upon the respondent authorities to provide same wages which is given to the employees of other MS vessels as per the Merchant Shipping Act or alternatively to allow the petitioner to withdraw his option and to quash the notices dated 9th December, 2002 and 31st March. 2004.
14. The said writ petition was disposed of by a well-reasoned order passed by the learned single Judge of this Court on 11th March. 2005. The effect of submission of such conditional option by the applicant and the acceptance thereof by the concerned authority and the subsequent execution of the agreement by the parties, were all considered by the learned Trial Judge in the said Judgment. The alleged reduction of pay and rank of the applicant as a consequence of acceptance of such option by the concerned authority was also taken into consideration by the learned Trial Judge in the said order. The applicant’s claim for allowing him to withdraw his option was also considered by the learned single Judge in the said Judgment. Considering all these aspects, the learned Trial Judge, by his said order dated 11th March, 2005 refused to give the benefit to the applicant as prayed for by him in the said writ petition.
15. Challenging the propriety of the said order, the instant appeal was filed by the applicant herein which was dismissed on contest by a Division Bench of this Court by taking note of the effect of signing the agreement between the employer and/or employee in or about May, 2004 during the pendency of the writ petition.
16. The said order passed by the Division Bench of this Court, is sought to be reviewed in this application.
17. Mrs. Nag, learned advocate appearing for the applicant submitted before this Court that the execution of the agreement between the parties during the pendency of the writ petition cannot destroy the right of the applicant which the applicant is otherwise entitled to in view of the interim order passed by the learned single Judge on 6th May, 2004 in the writ petition being WP No. 8132 (W) of 2004.
18. Since Mrs. Nag placed strong reliance upon the said interim order which, according to her, is the protector of the applicant’s right, I feel it necessary to set out the relevant part from the said order hereunder:-
I find that the issues in the writ petition make out a prima facie case for admission of the writ petition. Hence the writ petition is admitted for hearing on affidavits. I find that there is no scope to grant any interim relief to the petitioner. However, it goes without saying, if he succeeds, all reliefs to which he may be found entitled would be given to him inspite of the fact that at the present moment he is working on the basis of the option already exercised by him.
19. Let me consider how far the rights of the applicant, were protected by the said interim order.
20. Admittedly, the agreement was entered into between the parties during the pendency of the writ petition, and without obtaining any leave from the Court. There is nothing on record to show that the applicant was compelled to execute the said agreement under compulsion and/or duress. The applicant also did not pray for any relief for avoiding said agreement in the writ petition. Thus, in the absence of any challenge with regard to the validity, legality and/or executability of the said agreement, the terms contained in the said agreement bind the parties until it is avoided through the process of law.
21. It is also an admitted position that the benefits under the said agreement were also availed of by the applicant. The applicant, however, claims that the applicant received the said benefit as per the agreement, under protest. The applicant further claims that even he executed the said agreement by reserving his right to get the benefits, which he is claiming in the writ petition. It was further alleged by the applicant that since the said agreement was executed during the pendency of the writ petition, the relief which he is otherwise entitled to, cannot be refused for execution of such agreement.
22. But in my view, the acceptance of such benefits under protest and/or execution of such agreement with such reservation of rights, cannot improve the applicant’s right as the applicant never challenged the validity and/or legality of such agreement till date. As such whatever rights the applicant was claiming by virtue of the exercise of conditional option and/or the alleged acceptance thereof by the concerned authority, all stood extinguished with the execution of the said agreement, as the agreement puts an end to the negotiation between the parties. The offer, counter-offer and the acceptance thereof by the parties to the agreement culminate into a contract between the parties with execution of the agreement. After execution of such agreement the parties are bound by the contract and thus the scrutiny with regard to claim and counter claim of the parties relating to offer, counter offer and acceptance thereof, becomes insignificant in the absence of allegation of fraud, misrepresentation etc. in the process of execution of the said agreement. Such allegations are conspicuously absent in the instant writ petition.
23. Mrs. Nag further submitted that at least the alternative prayer of the applicant to allow him to withdraw his option, should have been allowed by this Court as the applicant applied for such withdrawal before the acceptance of such option.
24. Mrs. Nag relied upon a decision of the Hon’ble Supreme Court in the case of Bank of India & Ors. v. O.P. Swaranakar etc. reported in 2003(1) All India Service Law Journal 253, to show that the concerned authority acted illegally by not allowing the writ petitioner to withdraw his option before acceptance thereof Mrs. Nag submitted before this Court that though the said point was very much canvassed before the Appellate Court, but the learned Appellate Court did not consider the said submission of the appellant as will be apparent from the order dated 14th June, 2005, which is totally silent about such contention of the applicant.
25. According to Mrs. Nag, non-consideration of the material part of the submission of the petitioner by the Court itself is a ground for review in view of the decision of the Hon’ble Supreme Court in the case of Indian Church Chrome Ltd. v. Union of India, .
26. In my view, even the non-consideration of the said part of the submission of the petitioner cannot be a ground for review in the facts of the instant case as the execution of the agreement and the acceptance of benefit thereof by the applicant, put an end to the dispute and as such it was rightly held by the Division Bench of this Court that the reliefs which were claimed by the petitioners in the writ petition cannot be given after execution of the Said agreement.
27. In any event an erroneous order and/or an incorrect decision cannot be corrected by way of review. Review can only be made when the mistake is apparent on the face of the record. Similarly mere possibility of two views on the subject is also not a ground for review. Review can only be made to correct those mistakes which are apparent on the face of the record which is not required to be fished out and/or searched by the Court.
28. The scope for review under Order 47 of the Code of Civil Procedure, was considered by the Hon’ble Supreme Court in the case of Lily Thomas v. Union of India, reported in AIR 2000 SC 1650, wherein the Hon’ble Supreme Court held that error contemplated under the rule must be such which is apparent on the face of the record and not an error w hich is to be fished out and/or searched.
29. In another decision of the Hon’ble Supreme Court in the case of ParSion Devi v. Sumitrt Devi, , the Hon”ble Supreme Court held as follows:-
9. Under Order 47 Rule 1 CPC a Judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be ‘reheard and corrected’. A review petition, it must be remembered has a limited purpose and cannot be allowed to be ‘an appeal in disguise.
30. Keeping in mind the aforesaid principles enunciated by the Hon’ble Supreme Court, I have no hesitation to hold that this is not a case in which the order passed by the Division Bench of this Court on 14th June, 2005 in the instant appeal is required to be reopened by way of review.
31. Before concluding I must discuss the other submission of Mrs. Nag who ultimately, contended that when the learned Trial Judge discussed all the points of dispute raised in the writ petition, the learned Appeal Court also should have considered the said appeal on all points, particularly when the correctness of the findings of the learned Trial Judge on all points were urged before the Appeal Court.
32. It is true that in case of reversal the Appeal Court is required to give its own reasoning on all points in support of its conclusion. But in case of affirmance detailed discussion on each and every finding of the learned Trial Court, by the Appeal Court is not necessary.
33. On perusal of the entire order and/or Judgment of the Appeal Court, it does not appear to me that the merit of the Judgment of the Trial Judge was not substantially taken into consideration by the Appeal Court. The Appeal Court recorded its own finding to support its conclusion and I do not find any error apparent on the face of the record in drawing up such conclusion by the Appeal Court in its Judgment and/ or order dated 14th June, 2005.
34. Before parting with, I must mention that I do not find any substance in the submission of Mrs. Nag to the effect that the rights of the applicant were protected by the interim order passed in the writ petition as aforesaid. It was simply mentioned in the said interim order, that if the petitioner ultimately succeeds in the writ petition, the reliefs to which he may be found, entitled to, would be given to him, inspite of the fact that at the present moment he is working on the basis of the option already exercised by him.
35. On plain reading of the said interim order it appears to me that the rights of the writ petitioner is protected provided he succeeds in the writ petition. Since the writ petitioner failed to succeed in the writ petition, no relief can be given to the petitioner by virtue of such interim order.
Thus, I hold that this application for review deserves no merit for consideration.
The application for review thus stands rejected.
A. Talukdar, J.
36. I agree