Special Officer Vs R.M. Rajarathinam and Others

@JUDGMENTTAG-ORDER

V.M. Velumani, J.@mdashHeard Mr. S.Seenivasagam, learned counsel for the petitioner; Mr. V.R. Venkatesan, learned counsel appearing for the first respondent and Mr. N.Manoharan, learned Special Government Pleader appearing for respondents 2 to 4.

2. The appellant in W.A.(MD) No. 502 of 2009 has come up with this Review Application seeking to review the judgment dated 29.07.2013 passed by this Court in the said appeal.

3. The review applicant was the fourth respondent in W.P.(MD) No. 4636 of 2004 filed by the first respondent herein. The first respondent filed the said writ petition seeking a Writ of Mandamus to direct the respondents therein to forthwith disburse all retirement benefits that are due to him on the date of attaining his superannuation with interest @ 19% p.a.

4. The first respondent was working as a Secretary of the review applicant Society. He was allowed to retire on 31.10.2002 on his attaining the age of superannuation on 30.10.2002. While so, a charge memo was initiated against him on 21.11.2002 alleging misconduct in advancing a loan to a Doctor contrary to the Standing Instructions of the Society. According to the first respondent, his share of liability in respect of the loan advanced was arrived at Rs.1,90,000/- and he paid the said amount. He also contended that after his superannuation, no charge memo can be issued and no disciplinary proceedings can be proceeded against him. The review applicant Society in their counter denied the share of the first respondent''s liability at Rs.1,90,000/- and submitted that the first respondent on his own deposited the said amount. In the surcharge proceedings initiated against the first respondent and six others, after enquiry under Section 81 of Tamil Nadu Co-operative Societies Act, a sum of Rs.8,00,000/- together with 19% interest from 27.03.1997 was arrived at, being the loss caused to the review applicant Society. A criminal complaint was also lodged against the first respondent and others and the said criminal case is pending.

5. At the time of hearing of the writ petition, the learned counsel appearing for the review applicant Society has not disputed the first respondent''s liability arrived at Rs.1,90,000/- and payment of the same by him. Learned counsel also agreed that there is no impediment for the first respondent in receiving the terminal benefits. In view of the admitted facts and following the judgment reported in G. Manoharan Vs. The Registrar of Cooperative Societies, The Addl. Registrar of Cooperative Societies (Credit), Chairman, Common Cadre Authority and Villupuram District Central Cooperative Bank, , the learned Single Judge quashed the charge memo dated 21.11.2002 and directed the review applicant to settle the retirement benefits due to the first respondent within a period of four weeks from the date of receipt of a copy of that order.

6. Aggrieved over the same, the review applicant filed Review Application (MD)No.53 of 2007 to review the order dated 26.07.2007 passed by the learned Single Judge in W.P.(MD) No. 4636 of 2004. The said review application was dismissed on 12.12.2007, holding that the review application filed by changing the Advocate is clear abuse of process of Court.

7. Challenging the dismissal order dated 12.12.2007 passed in the above Review Application, the review applicant herein filed a Writ Appeal in W.A.(MD) No. 526 of 2008 and a Division Bench of this Court dismissed the said Writ Appeal on 26.08.2008, holding that the appeal is not maintainable and the review applicant ought to have filed the appeal against the order passed in W.P.(MD) No. 4636 of 2004.

8. Pursuant thereto, the review applicant filed W.A.(MD) No. 502 of 2009 challenging the order passed in W.P.(MD) No. 4636 of 2004. A Division Bench of this Court, by a judgment dated 29.07.2013, dismissed the said writ appeal on the ground that the review applicant has not disputed the entitlement of the first respondent to receive the terminal benefits and hence, he cannot argue the Writ Appeal on merits.

9. The present Review Application is to re-consider the order, dated 29.07.2013 passed in W.A.(MD) No. 502 of 2009.

10. From the records, it is seen that the review applicant did not contest the claim of the first respondent on merits in the writ petition. On the other hand, the learned counsel for the review applicant admitted the contentions of the first respondent. Based on the said admission only, an order was passed in the writ petition. The review application and the writ appeal filed by the review applicant herein were dismissed as not maintainable. W.A.(MD) No. 502 of 2009 filed against the order dated 26.07.2007 passed in W.P.(MD) No. 4636 of 2004, was dismissed by a Division Bench of this Court, holding that the review applicant is not entitled to agitate the issue on merits. It is well settled that the scope of review is very limited. The review applicant cannot re-argue and he is not entitled for re-hearing on merits.

11. The scope of review was considered by the Hon''ble Apex Court in a judgment reported in Lily Thomas, Vs. Union of India and Others, , wherein, in paragraph 52, it was held as under:

"52. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi and Others Vs. Shri Pradyumansinghji Arjunsinghji, held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error......"

(emphasis supplied)

12. A Division Bench of this Court in a judgment reported in 2014 (3) TLNJ 245 (Civil) [M. Jai Kavitha Vs. The Authorised Officer, Syndicate Bank, Regional Office, Chennai - 1 and others], in which, one of us [V.DHANAPALAN, J.] is a party, has considered the scope of judicial review, wherein the decision of the Honourable Apex Court was noted with approval. Paragraph No. 9 of the said Judgment reads as under:

"9. The power of review under Order 47 Rule 1 of CPC can be exercised by a court of law, if the order in question comprises a mistake or an error apparent on the face of record. Once an order is pronounced, it should not be altered, unless there is an apparent error. Law is well settled that erroneous finding is not a ground for review, so also improper consideration for that matter. In review application, the court does not sit in appeal over its own judgment and the said application cannot be treated as an appeal. This position has been ruled by the Supreme Court in Lily Thomas, Vs. Union of India and Others, . Therefore, in the absence of any error apparent on the face of record, we are not inclined to interfere with the order in question, except to the extent of deleting of the portions in paragraphs 14 and 15 of the impugned order, with which the applicant is concerned as to having an impact on the proceedings pending before the tribunal, as stated in the foregoing paragraph."

(emphasis supplied)

13. The above two decisions were also followed by us in Review Application (MD) No. 142 of 2014, dated 25.11.2014, wherein it has been held that a person in review is not entitled for re-hearing of the issue.

14. In the light of the dicta laid down by the Honourable Apex Court as well as by the Division Benches of this Court, we are of the considered view that the earlier order of the Court can be reconsidered only if there is an error apparent on the face of record and in that event, the said error can be rectified. Otherwise, a Review Application is not at all maintainable. In the present case on hand, the Review Applicant failed to raise any ground, reason or cause, warranting interference at the hands of this Court.

15. Therefore, we do not find any error apparent on the face of record in the judgment, dated 29.07.2013 passed by this Court in W.A. (MD) No. 502 of 2009. Accordingly, the Review Application fails.

16. In the result, the Review Application is dismissed. No costs. However, we make it clear that the dismissal of the review application will not be an impediment for recovery of any amount due from the first respondent as per the order passed in surcharge proceedings. It is also open to the review applicant to implement the order passed in the surcharge proceedings as per law, if so advised.