- (1.) R. A. Sharma, J. Sri Lalji Srivastava, who was Clerk in Allahabad District Co-operative Bank Ltd. , Allahabad (hereinafter referred to as the Bank), filed a writ petition before the learned Singles Judge, challenging the order of his retirement at the age of 58 years. This writ petition was allowed by learned Single Judge on 28-9- 1993. Being aggrieved by it the Bank filed special appeal which was dismissed on May 7, 1994 by a Division Bench of which one of us (R, A. Sharma, J.) was a member. The Bank thereafter filed review application before learned Single Judge, who has allowed the writ petition of Sri Lalji Srivastava This application was rejected by the learned Judge. The Bank thereafter filed review application in the Special Appeal. Two more applications for condonation of delay and for staying the operation of the judgment dated May 17,1994 passed in Special Appeal, have also been filed,
(2.) WE have heard learned counsel for both the parties. Learned counsel for respondent has stated that it is not necessary to file any counter-affidavit and the review application can be decided without it. WE have condoned the delay in filing the review application and have allowed the application under Section 5 of Limitation Act. ,, This Court has power to review its judgment given under Article 226 of the Constitution, provided ground for such a review is made out. In this connection reference may be made to A, T, Sharma v. A. P. Sharma, AIR 1979 SC 1047 wherein it was laid down as under : "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 definite limits to the exer cise 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 basking 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 Court to correct all manner of errors committed by the Subordinate Court. " The grounds on which this Court can review its judgment under Article 226 of the Constitution, are almost the same which have been set out in Rule 1 of Order XLVII of Coda of Civil Procedure (hereinafter referred to as the Code ). In fact Supreme Court in Meera Bhznja v. Nirmal Kumar Chaudhury, 1995 (1) SCC 178 : 1995 (1) JCLR 97 (SC), has relied upon the case of A. T. Sharma v. A. P. Sharma (supra) while considering the scope of review under Order XLVII, Rule 1 of the Code, As regards the ground of error apparent on the face of the record for reviewing the judgment Supreme Court has laid down that such an error must be an error "which must strike one on mere looking at the record and would not require any long-drawn process of reasoning of points where there may conceivably be two opinions". Therefore, unless the Bank makes out a ground for review as laid down by Supreme Court in the aforesaid two cases, this application cannot be entertained. Sri A. Kumar, learned counsel for the Bank has made three, submis sions in support of review application, viz. (i) learned Single Judge could not have allowed the writ petition of the respondent, because it was cognizable by a Division Bench ; (ii) the respondent, who filed writ petition, is guilty of concealment of relevant facts and the writ petition was liable to be dismissed on this ground alone ; and (iii) relevant statutory provisions have not been placed before the Court ; hence the judgments are erroneous. Sri R. N. Singh, learned counsel for the respondent has disputed the above contentions and has also raised objection about maintainability of review application,
(3.) IN support of first plea learned counsel submitted that although petitioner is workman within the meaning of INdustrial Disputes Act, but he is Class II employee of the Bank and the writ petition filed by such a person was liable to be decided by a Division Beech and the learned Single Judge, as such, did not have jurisdiction to allow the writ petition. IN support of this contention learned counsel has placed reliance on a decision of this Court in Competent Authority v. L. J. Jhonson, Special Appeal No. 16 of 1970, decided on May 19, 1978. This contention cannot be accepted for four reasons, viz, (i) Bank did not raise such a plea before the learned Single Judge. It has also not raised this plea before the Division Bench which has decided Special Appeal. Not only that the Bank has not raised such a plea earlier, but it has also not given plausible reasons as to why such a plea was not raised. Nor mally a judgment cannot be reviewed on a ground which could have been raised but was not raised, at the time of hearing of the case. No plausible explanation for not raising this plea earlier before the learned Single Judge as well as before Special Appeal Bench has bee a given, (ii) Every case which is filed in this Court is processed by Stamp Reporter of the Court who gives his report about limitation, sufficiency of stamps as well as on the question as to whether the case is cognizable by Single Judge or by a Division Bench. IN the instant case the Stamp Reporter's report mentions that this case is cognizable by a Single Judge. Stamp Reporter's report could have been challenged by any of the parties to the case before learned Judge. But this was not done. After the case has been decided such a plea cannot be raised for getting the judgment reviewed ; (iii) Class to which the petitioner, Laiji Srivastava, belongs has not been specifically pleaded in the original affidavit writ petition against the order concerning service conditions of a workman is normally cognizable by Single Judge ; and (iv) Even on merits such a plea cannot be sustained. Division Bench in the case of The Competent Authority v. L. J. Jhonson (supra) although set aside the judgment of a learned Single Judge on the ground that he has no jurisdiction to decide the petition, because the same was cognizable by a Division Bench, but did not dismiss the writ petition and merely directed that same be heard and disposed of by a Bench of two Judges. A similar objection raised in Pargana Adhikari v. Ramesh Chandra Verma, 1994 RD 174, was negatived by a Division Bench on the ground that Special Appeal Bench also exercise the same power which has been exercised Single Judge under Article 226 of the Constitution. Relevant extract from the above decision is reproduced herein below : "we are-also of the opinion that it will mean only duplication of proceedings inasmuch as while sitting in Special Appeal against the decision given by the learned Single Judge, we are exercising the same which Article 226 of the Constitution for the purposes of the disposal of the Special Appeal, We have, therefore, proceeded to decide the controversy raised in this Special Appeal on merits. " Another Division Bench in U. P. State Road Transport Corporation v. A. A'. Mishra, 1995 (1) UPLBEC 21 ; 1995 (1) LBESR 208 (All) (LB) has rejected the similar objection as has been raised in the instant case, by holding as under: "that apart, allowing Special Appeal on this ground will only result in duplication of proceeding, because while sitting in Special Appeal we exercise same power under Article 226 of the Consti tution. " As regards the second submission of the learned counsel for the Bank it has been stated that Sri Lalji Srivastava has succeeded in the writ petition on the basis of settlement of 1966 which was superseded by Joshi Award of 1971, but this fact was not disclosed in the writ petition. This submission also deserves rejection. The Bank being a party to the writ petition, it should have disclosed the fact of supercession of the settlement of 1966 by Joshi Award of 1971. But it did not do so, although it was party to the Joshi Award and had full knowledge of it. Why such a plea was not raised by the Bank before the learned Single Judge, has not been explained. Bank itself has filed Special Appeal against the judgment of learned Single Judge, but no such plea was raised even before the Bench hearing the Special Appeal. Why Joshi Award of 1971 was not placed before the Court by the Bank and why such a plea was not taken by it earlier, has not been explained. A judgment can be reviewed only on limited ground. A review on the basis of additional evidence can be allowed only when such an evidence could not be discovered by the applicant after exercising due diligence. IN the instant case that is not the position. The Bank was party to Joshi Award and it has full knowledge of it, but even then it neither brought it on record of the writ petition nor raised any plea in connection therewith. There is also no allegation that the Pairokars of the Bank were in collusion with the respondent. There is no such plea to that effect. The judgment, therefore, cannot be reviewed on the basis of evidence which was within the knowledge of a party, but was not brought on record by it before or at the time of hearing of the writ petition or the Special Appeal. Learned counsel for the respondent, in this connection, has submitted that although Joshi Award has fixed the retirement age of workman as 58 years, but it has saved the existing benefits or emoluments which are available to the existing employees and it was for this reason that neither the Bank nor the respondent placed on record of the writ petition the Joshi Award, although the Bank was a party to that Award. At page 56 of Joshi Award it is men tioned that existing benefits or emoluments to the employees of the Bank, at the time of Award will not be affected by the Award and such benefits or emoluments will be personal to such employees. Prima facie the contention of the learned counsel for the respondent appears to be correct. But it is not necessary to express any final opinion on this issue, because no ground for review has been made out by the Bank. The second argument, therefore, has to be rejected.;