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MCA/3269/2010 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL APPLICATION - FOR
REVIEW No. 3269 of 2010
In
LETTERS
PATENT APPEAL No. 528 of 2010
In
SPECIAL
CIVIL APPLICATION No. 3669 of 2010
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE K.M.THAKER
=========================================================
KOLLI
MADHAV SAIRAM REDDY - Applicant(s)
Versus
UNION
OF INDIA & 2 - Opponent(s)
=========================================================
Appearance
:
MR
MUKUL SINHA for
Applicant(s) : 1,
MR PS CHAMPANERI for Opponent(s) : 1,
NOTICE
SERVED BY DS for Opponent(s) : 2 - 3.
MRS VD NANAVATI for
Opponent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 10/05/2011
CAV
JUDGMENT
(Per:HONOURABLE
MR JUSTICE K.M.THAKER)
1. The
application on hand has been titled and described by the applicant as
“application for review of the judgment and order dated
29.10.2010.”
2. The
applicant is the original petitioner and appellant and present
opponents are original respondents.
3. The
applicant is one of the students of opponent No.2 institute in
present application.
4. The
respondent No.2-institute had, on the charge that the petitioner was
involved in act of ragging, imposed certain penalty on the petitioner
and other five students, vide circular/order dtd.1.2.2010
5. Aggrieved
by the said order, the applicant herein had preferred a writ petition
being Special Civil Application No.3669 of 2010 which was rejected by
learned single Judge vide order dated 25th March, 2010.
Against the said order rejecting the petition, the petitioner
preferred Letters Patent Appeal No.528 of 2010 which was decided by
judgment and order dated 29th October, 2010. As the title
of the application suggests, the applicant seeks review of the order.
However, the reliefs prayed for in the application read thus;
“4.
(A) This Hon’ble Court may be pleased to admit and allow this
application.
(B) This
Hon’ble Court may be pleased to quash and set aside the report of
ILARC and further be pleased to set aside the impugned order of
punishment.
(C) This
Hon’ble Court may be pleased to direct the respondent Institute to
restore the status ante and permit the applicant to take examinations
of the last semesters by way of special examinations such that the
applicant does not lose the two semesters of 2010.
(D) Be
pleased to grant any other and further reliefs, as the nature and
circumstances of the present case may require.”
6. Mr.Sinha,
learned advocate has appeared on behalf of applicant. Mr.Shelta,
learned senior counsel with Ms.Nanavati, learned advocate has
appeared for respondents Nos. 2 and 3.
7. We
have heard learned counsel for contesting parties and considered the
submissions.
8. Mr.Sinha,
learned advocate has submitted that the Court, by virtue of the
judgment and order dated 29.10.2010, prospectively (with effect from
the date of the judgment) set aside the order dated 1st
February, 2010 imposing penalty. However, since the penalty imposed
on the petitioner by the respondents was for the period of two
semesters, and even after the judgment in the appeal, the petitioner
would not get the benefit and that, therefore, the directions by the
Court may be appropriately reviewed. He, particularly, requested that
the finding by the Court that entire punishment cannot be set aside
may be reviewed. He reiterated the submissions (as recorded in para:4
of the judgment dated 29.10.2010) which were raised by the
appellant-petitioner against the institute’s order dated 1st
February, 2010 and again submitted that the institute’s order
deserves to be set aside.
9. The
application is contested by the respondents and it is, inter alia,
submitted that the applicant is
not entitled to relief as claimed for in the application. The
respondents have also contended, relying on decision of the Apex
Court (in the case of Aribam
Tuleshwar Sharma vs. Aribam Pishak Sharma and Ors.)
reported in AIR 1979 SC
1047, that
the power of review can be exercised where some mistake or error
apparent on the face of the record is found, whereas in present
matter no such case is made out and that, therefore, the application
is not maintainable and does not deserve to be entertained.
10. We
have noted the averments and contentions made by the applicant in the
application.
11. If
the averments made and contentions made by the applicant in the
application memo and more particularly in paras: (1.f) to (1.n) are
examined, it emerges that they are essentially, in the nature of
appeal against the judgment and do not make out ground for review of
the judgment i.e. do not demonstrate any error apparent on the face
of record. The power of review cannot be exercised for entertaining
and considering the said contentions. In this context reference may
be made to the decision in the case of Gujarat University vs.
Miss Sonal P. Shah and ors., reported in 1982 (1) GLR 171
wherein the Full Bench, with regard to power of review observed
thus;
” 33.
The review applications are quite incompetent as what is
sought by them is to practically set aside the order of the Division
Bench and remodulate the reliefs so as to meet the alleged exigencies
of the situation, as according to the review petitioners the decision
has an engulfing effect on the careers and asperations of the
students who are already promoted of course without examination. This
is nothing but an attempt to circumvent the path of approaching the
Supreme Court by way of an appeal for which leave is already granted.
Though the Plenary jurisdiction of this Court in review is not very
much circumscribed there are definitive limits as held in Shivdeo
Singh’s case (AIR 1963 SC 1909). Of course, this judgment was
prior to the amendment of Civil Procedure Code by which under
sec.141, the provisions of Civil Procedure Code are not made
applicable to the proceedings under Article 226 of the Constitution
of India. The restrictions under Order 47 of the Civil Procedure Code
are not directly applicable, and this Court can exercise the powers
on a wider canvass on any analogous ground; still the scope for
review has it s own restrictions and may not be exercised in the
manner in which the powers can be exercised in an appeal.
34.
A review of a judgment is a serious step and reluctant resort to
it is proper only where a glaring omission or patent mistake or like
grave error has crept in earlier by judicial fallibility. A mere
repetition through different counsel of old and overruled arguments
cannot create a ground for ‘review’ (vide Krishna Iyer, J., AIR 1975
SC 1500-Sow. Chandra Kanta v. Sheik Habib). Hence, these
review applications have no scope.”
The
Hon’ble Apex Court, in the decision in the case of 1980 (Supp) SCC
562 in the case of Col. Avtar Singh Sekhon vs. Union of
India and Ors., has observed, in para:12 that;
“12. A
review is not a routine procedure. Here we resolved to hear Shri
Kapil at length to remove any feeling that the party has been hurt
without being heard. But we cannot review our earlier order unless
satisfied that material error, manifest on the face of the order,
undermines its soundness or results in miscarriage of justice. In Sow
Chandra Kante v. Sheikh Habib this Court observed : (SCC p.675,
para1)
A
review of a judgment is a serious step and reluctant resort to it is
proper only where a glaring omission or patent mistake or like grave
error has crept in earlier by judicial fallibility….. . The present
stage is not a virgin ground but review of an earlier order which has
the normal feature of finality.”
Subsequently, while referring to the decision in the case of Col.
Avtar Singh Sekhon (supra), the Hon’ble Apex Court in the
case between Promoters and Builders Association of Pune vs.
Pune Municipal Corporation and ors. reported in
(2007) 6 SCC 143, wherein, in para:13, the Hon’ble Court
observed thus;
“13.
As was observed by this Court in Col. Avtar Singh Sekhon v.
Union of India review is not a routine procedure. A review of an
earlier order is not permissible unless the Court is satisfied that
material error, manifest on the face of the order undermines its
soundness or results in miscarriage of justice. A review of judgment
in a case is a serious step and reluctant resort to it is proper only
where a glaring omission or patent mistake or like grave error has
crept in earlier by judicial fallibility…….. The stage of review
is not a finality. This view has been reiterated in Devender
Pal Singh v State, NCT of Delhi (SCC para 16). This being the
legal position, there is absolutely no ground for review of the
judgment and order dated 5-5-2004. The review petitions are,
therefore, liable to be dismissed.”
12. So
far as the issue about keeping the term is concerned, it is necessary
to note that at the outset of the hearing of the appeal, it was
inquired from the respondent institute about possibility as to
whether appellant would be in position to keep the term. In response
to the said query made at the outset of the hearing, an affidavit was
filed on behalf of the respondent institute wherein it was clarified
that in view of the regulations and the applicable time frame such
alternative was not feasible. The aforesaid aspect would be clear
from para:8 of the judgment wherein response given by the respondent
institute has been taken into account. It has been observed in para:8
of the judgment that;
” 8. At
this stage, we should refer to the relevant averments in the further
affidavit by Dr. G.J.Joshi, Assistant Professor. The said affidavit
has been made pursuant to the suggestion made to the respondent
university to reconsider the matter with regard to the penalty of
rustication of the petitioner for two semesters. It comes out from
the said affidavit that the
mandatory
requirement
regarding continuous evaluation of appellant’s academic performance,
has not been undertaken and it would not be possible to allow the
appellant to keep the term at this stage. In the affidavit, it has,
inter alia, been stated thus:-
“3. xxx xxx xxx
3.1 The
petitioner and other alike students have not completed required
course work/labouratory work during the remaining period of the even
(spring) semester 2009-2010. they are required to undergo work for 13
weeks out of 17 weeks. They have not undergone continuous
evaluation of their academic performance for the semester as a
mandatory requirement.
4. The
petitioner will
be allowed registration in even semester in December, 2010
so that he can fulfill minimum academic requirement for his studies.
The other
punishment i.e.
at Item Nos.2 to 5 awarded in category A shall be reviewed by the
Institute sympathetically
after his joining for the even semester of the academic year
2010-2011.”
(emphasis supplied)”
13. So
far as the issue regarding the proceedings and report of ILARC is
concerned, it is necessary to note that in the application memo, the
applicant-appellant has averred that after the order rendered by the
learned single Judge (which was subject matter of the appeal) the
present applicant-appellant had preferred appeal before the Chairman
of the respondent Institute.
14. Now
it is pertinent to also note that the said factual aspect was not
made available before the Court and was not stated when the appeal
was heard and came to be decided by the judgment dated 29.10.2010.
15. Now,
in the present application, the applicant-appellant has come out
stating that after the judgment of the learned Single Judge he had
also preferred an appeal before the Chairman of the respondent
institute. It is also now averred by the applicant-appellant (which
was not stated and placed before the Court at the time of hearing of
the appeal and thereafter until the date of decision) that the appeal
was taken up for hearing by the competent authority. The details
mentioned by the applicant-appellant in para: (1.n) (of the present
application memo) were also not before the Court at the time of
hearing of the appeal or thereafter until the date of the judgment.
It is now admitted by the appellant that, “since the appeal was
pending before the Chairman and since no response was given, the
applicant had not submitted the copy of the appeal before this Court
and is therefore enclosing the same in this review application.
……”. In the present application, applicant has come out
with the factual aspects narrated in para:(1.n) of the application
whereas the said aspects ought to have been stated during the hearing
of the appeal.
The
applicant-appellant prosecuted the said remedy simultaneously, and
that too without disclosing in the Letters Patent Appeal or during
the hearing of the said Letters Patent Appeal before us.
16. Be
that as it may, the said aspects are, now, at this stage, not
relevant after the judgment in the appeal which is already rendered.
17. So
far as the proceedings before the and the report of the ILARC are
concerned, the Court had, at that stage, noted the relevant factual
aspects, as observed in para:10.7(a) to (h) of the judgment and
having regard to the said factual aspects, the Court had taken into
consideration the observations by the Apex Court in the case of Ajit
Kumar Nag vs General Manager (PJ)., Indian Oil Corporation Ltd.,
Haldia and Ors., [reported
in (2005) 7 SCC,
p.764] and
then observed in para: 10.8 that;
” 10.8 When
the credence and credibility of the committee/members is not
impeached and when the conclusions of the ILARC also are not assailed
on the ground that they are without any supporting evidence and/or
contrary to evidence and the material/evidence on record before the
ILARC
also is also not impeached, when any allegation of bias and
victimization against the committee or the students is not made, then
in view of the aforesaid aspects and in light of the observations of
the Hon’ble Apex Court, we are not inclined to upturn the ILARC’s
unanimous recommendation and/or to invalidate the entire hearing –
proceedings by the ILARC against the petitioner (who is found to be
involved in serious infraction of conduct viz. act of ragging) on the
ground that the composition of ILARC did not conform the
recommendation of the Raghavan Committee and Apex Court’s direction
or the UGC regulations. We order accordingly.”
18.
Having regard to the said clarification made by the respondent
institute at the early stage that it was considered appropriate, in
the facts of the case, to set aside the order dated 1st
February, 2010 imposing the penalty prospectively with effect from
the date of the judgment.
19. In
the facts of the case and in light of the above noted clarification
by the respondent institute (which was made at the outset in response
to Court’s suggestion) any other direction would have resulted into
the direction to respondent institute to ignore or breach its
regulations regarding the requirement to be fulfilled by the students
for keeping semester/term, which the Court could not have passed
while exercising jurisdiction under Article 226 of the Constitution
of India.
20. On
this ground also, we do not think that the applicant-appellant has
made out any ground for review of the order.
20.1 The
applicant has now, in present application, raised contention of such
nature which can not be considered and which would not fall within
the purview of “detection of some mistake or error apparent on
face of record” but are such that they relate to the merits of
the case and, as observed by the Hon’ble Apex Court, would be “in
the province of Court of Appeal”. We may here refer to the
observation by the Apex Court in para:3 of the decision in the case
of Aribam Tuleshwar Sharma (supra);
” ….
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.”
21. In
the affidavit filed by the respondent institute in response to
present application, the respondent institute has also averred that;
” 7.4
The semester examination for the academic year 2009-2010 was held
on 8.5.2010. The supplementary examination is for those students
who have registered for the corresponding semester, completed
mandatory academic requirement of course work and laboratory work but
have obtained either II, EE or FF grade at the end of the semester,
after the end of semester examination. According to the regulation
for B.Tech. Programme the petitioner and other students cannot appear
for supplementary examination for the even semester, 2010.”
“7.5
The petitioner will be allowed registration in even
semester in December, 2010 so that he can fulfill minimum academic
requirement for his studies. The other punishment i.e. at Item Nos.2
to 5 awarded in category A shall be reviewed by the Institute
sympathetically after his joining for the even semester of the
academic year 2010-2011. Annexed hereto and marked as ANNEXURE-I
is a copy of the minutes of the meeting of the Committee. All the
students including petitioner are intimated for registration.
(ANNEXURE-II).
I
also produce herewith an extract of the Regulation governing course
of study and examination for the B.Tech. students, is annexed hereto
and marked as ANNEXURE-III to
this affidavit.”
22. It
was upon having regard to the response given by the Registrar in his
affidavit (as recorded in para:8 of the order dtd.29.10.2010) that
the direction in the judgment dated 29.10.2010 came to be passed.
Now, having regard to the stipulations made by the respondent
institute in aforesaid para:7.5 of the affidavit dtd.10th
January, 2011, all that can be observed and clarified, is that the
incident and the order dated 1st
February, 2010 may not be cited by the respondent institute in the
results or the record of the applicant-appellant and/or in the
certificates, if any, which may be issued to the applicant-appellant
so that applicant-appellant may not have any difficulty or may not
have to face any complications in his future career including further
studies.
23. As
noted above, the applicant has failed to make out any case
demonstrating any apparent error on the face of the record. The
submissions made in application, which are in the nature of
contentions on merits, cannot be raised and/or entertained in
application for review.
Therefore,
on overall consideration of the application, the application fails.
Any case for review is not made out, hence the application is
rejected.
[S.J.MUKHOPADHAYA,
CJ.]
[K.M.THAKER,
J.]
Amit
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