Full Judgement
Delhi High Court
Mukesh Sain & Ors. vs Pragati Power Corporation Limited & ... on 19 January, 2024
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order : 19th January, 2024
+ REVIEW PET. 23/2024 & CM APPL. No.3595/2024 in
W.P.(C) 16086/2022
MUKESH SAIN & ORS. ..... Petitioners
Through: Mr. Pramod Dayal, Mr. Rakesh
Kumar and Mr. Dalip Singh,
Advocates
versus
PRAGATI POWER CORPORATION LIMITED & ORS
..... Respondents
Through: Mr. Vinay Kumar Garg, Sr. Adv. with
Mr. Parv Garg, Mr. Pawas
Kulshrestha, and Mr. K.S. Rekhi,
Advocates for R-4-26
Ms. Aakanksha Kaul, Ms. Rhea
Borkotoky, Advocates for R-2/UOI
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
CHANDRA DHARI SINGH, J (Oral)
1. The petitioner vide the present review petition filed under Section 114 read with Order XLVII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter "CPC") seeks the following reliefs:
"a) To review the order dt.20.12.2023 issue an appropriate writ or order quashing and setting aside the „combined seniority list‟
Signature Not Verified Digitally Signed REVIEW PET. 23/2024 in W.P.(C) 16086/2022 Page 1 of 11 By:GAURAV SHARMA Signing Date:31.01.2024 17:35:35 and „combined list of posts‟ maintained by the Respondents No.1 & 2;
b) Any other and further Order(s) which this Hon'ble Court may deems fit and proper may also be passed in favour of plaintiff and against the defendants."
2. The respondent no. 1, i.e., Pragati Power Corporation Limited (hereinafter "PPCL"), and the respondent no. 2, i.e., Indraprastha Power Generation Company Limited (hereinafter "IPGCL") are power generation companies against whom the petitioners had filed W.P (C) No. 16086/2022 in which they had challenged the unified promotion rules, wherein, a combined seniority list for promotions to a combined list of posts was effectuated.
3. The said writ petition was dismissed by this Court vide judgment dated 20th December, 2023 (hereinafter "impugned judgment") on the grounds of the same being barred by doctrine of delay and laches, and also estoppel, as it was filed after a delay of 10 years and petitioners had also taken benefit of the promotional scheme challenged therein.
4. Learned counsel appearing on behalf of the petitioners submitted that impugned judgment is contrary to the judgment dated 7th April, 2015 passed by the Coordinate Bench of this Court in W.P (C) no. 579/2013, titled as MK Saini v. Indraprastha Power Generation Co. Ltd. and since the same is binding upon this Court, the impugned judgment is liable to be set aside under the review jurisdiction of this Court.
Signature Not Verified Digitally Signed REVIEW PET. 23/2024 in W.P.(C) 16086/2022 Page 2 of 11 By:GAURAV SHARMA Signing Date:31.01.2024 17:35:35
5. It is submitted that one of the employee namely M.K. Saini working with the IPGCL, his services were unilaterally transferred to PPCL The said transfer was challenged under W.P (C) no. 579/2013.
6. It is further submitted that in the above said writ petition, it was held by the Coordinate Bench of this Court that till the merger is complete in terms of statutory process, M.K. Saini will continue to be an employee of his employer company which was IPGCL and his services cannot be transferred to a separate employer, i.e., PPCL. Accordingly, the transfer order was set aside and the writ petition was allowed and attained finality when the LPA No. 940/2015 filed by IGPCL was dismissed as withdrawn.
7. It is submitted that this Court proceeded to decide the writ petition on the premise that the combined seniority list has taken effect long back in the year 2012, and that the same cannot be challenged belatedly. This factual premise itself is erroneous in law, inasmuch as, the combined seniority list could not have been prepared, acted upon and given effect in light of the judgment passed in W.P (C) no. 579/2013.
8. It is submitted that this Court has wrongly noted the contention of the respondent companies that they are well within their rights in effectuating the contended promotional scheme of 2012, despite the incontrovertible facts that 244 representations were received against the scheme of 2012.
9. It is submitted that the process of two legal entities to merge with each other is a well-defined process under Sections 391-394 of the Companies Act, 1956. There is no order of merger having been placed on record of this
Signature Not Verified Digitally Signed REVIEW PET. 23/2024 in W.P.(C) 16086/2022 Page 3 of 11 By:GAURAV SHARMA Signing Date:31.01.2024 17:35:35 Court, hence the alleged combined seniority list could not have been acted upon.
10. It is submitted that this Court erroneously held that the writ petition suffers from 'delay and latches' and since, the policy impugned in the writ petition was manifestly illegal, null and void, and non-est, the alleged delay ought not to have been taken into consideration.
11. It is submitted that there is an error apparent on the face of record wherein this Court in its impugned judgment has failed to appreciate that the respondent organisations are two legal entities and that their legal existence is independent of each other.
12. Therefore, in view of the foregoing submissions, it is submitted that the present review petition may be allowed in terms of the reliefs sought.
13. Per Contra, the learned senior counsel appearing on behalf of the respondent nos. 4 to 26 and the learned counsel appearing for the remaining respondents vehemently opposed the instant review petition submitting to the effect that the same is liable to be dismissed being devoid of any merits.
14. It is submitted that the there is no force in the arguments advanced by the petitioners and they have been unable to bring forth any contention to make the present petition amenable to be entertained under the review jurisdiction of this Court.
15. In view of the foregoing submissions, the learned senior counsel submitted that the present review petition, being devoid of any merits, is liable to be dismissed.
Signature Not Verified Digitally Signed REVIEW PET. 23/2024 in W.P.(C) 16086/2022 Page 4 of 11 By:GAURAV SHARMA Signing Date:31.01.2024 17:35:35
16. Heard the learned counsel appearing on behalf of the parties and perused the record.
17. Before delving into the merits of the instant case, it is pertinent to narrate the law settled behind the scope of powers of this Court under its review jurisdiction and to ascertain the extent of intervention thereunder.
18. The power of review is exercised in cases where there is an error apparent on the face of the record and in such an event the order or judgment can be corrected or set aside. A Court cannot act as an appellate Court for its own judgments, nor can it allow the petitions for review based only on the claim that one of the parties believes the judgment has wronged him. If matters that the Court has already decided on could be reopened and reheard, the same would be detrimental to the public interest.
19. The Hon'ble Supreme Court in its judgment titled as Kamlesh Verma v. Mayawati, (2013) 8 SCC 320, has carved out the essential grounds qua review. The relevant paragraph of the said judgment is reproduced hereunder:
"..20.1. When the review will be maintainable:
(i) Discovery of new and important matter of evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any Sufficient reason.
The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki and approved by this Court
Signature Not Verified Digitally Signed REVIEW PET. 23/2024 in W.P.(C) 16086/2022 Page 5 of 11 By:GAURAV SHARMA Signing Date:31.01.2024 17:35:35 in Moran Mar Basselios Catholics v. Most Rev. Mar Poulose Athanasius to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd.
20.2 When a review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent of the face of record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived..."
Signature Not Verified Digitally Signed REVIEW PET. 23/2024 in W.P.(C) 16086/2022 Page 6 of 11 By:GAURAV SHARMA Signing Date:31.01.2024 17:35:35
20. This Court is of the view that a review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order or judgment does not call for review. The mistake apparent on record means that the mistake is self-evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise as it does not permit rehearing of the matter on merits. In order to appreciate as to what constitutes an error apparent on the face of the record, the observations of the Hon'ble Supreme Court in Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale, 1959 SCC OnLine SC 10, has been reproduced hereunder:
"17. ...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....."
21. This Court is of the view that the power of review is distinct from the Court's power to hear appeals, i.e., the appellate jurisdiction. The said power is neither the inherent power of this Court, nor the review is a covert appeal. Nothing would prevent the Court from correcting the error if it is determined that the error raised in the review petition was merely the consequence of an error and that the earlier decision would not have been rendered, but for an incorrect assumption, that in fact did not exist.
22. Now adverting to the instant petition.
Signature Not Verified Digitally Signed REVIEW PET. 23/2024 in W.P.(C) 16086/2022 Page 7 of 11 By:GAURAV SHARMA Signing Date:31.01.2024 17:35:35
23. The primary contention of the petitioner revolves around the point that a Coordinate bench of this Court, in its judgment dated 7th April, 2015 passed in W.P (C) no. 579/2013, titled as MK Saini v. Indraprastha Power Generation Co. Ltd., has stated that en employee therein, namely M.K Saini was working with the IPGCL and his services were transferred to the PPCL. The said transfer was assailed in the above stated writ petition.
24. It has been submitted that the Coordinate Bench of this Court in the above said writ petition held that till the merger of IPGCL and PPCL is complete in terms of the statutory process, M.K. Saini, i.e., the petitioner therein, will continue to be an employee of his employer company, i.e., IPGCL. The petitioner herein has further submitted that in the above said writ petition, the Coordinate Bench also held that M.K. Saini's services cannot be transferred to a separate employer, i.e., the PPCL and accordingly the transfer order was set aside. It further attained finality when the LPA No. 940/2015, was filed by the IGPCL and was later dismissed as withdrawn.
25. The secondary part of the contentions advanced on behalf of the petitioners is that in the impugned judgment, this Court had dismissed the captioned writ petition due to delay and laches. It has been submitted that this factual premise itself is erroneous in law as the combined seniority list could not have been prepared, acted upon and given effect by the respondents in the light of the judgment passed in W.P (C) no. 579/2013.
26. Lastly, it has been submitted by the petitioners that they have placed on record various documents and among other there is a letter dated 7th October, 2015, issued by the Government of India, Ministry of Corporate
Signature Not Verified Digitally Signed REVIEW PET. 23/2024 in W.P.(C) 16086/2022 Page 8 of 11 By:GAURAV SHARMA Signing Date:31.01.2024 17:35:35 Affairs inter alia stating that it has not been found feasible to process the applications seeking approval for the scheme of amalgamation of IPGCL with PPCL.
27. One such other document is a letter dated annual report of PPCL for the year 2019-2020 inter alia showing its separate legal existence. Relying upon the said various documents, it has been argued that this Court has failed to take into consideration that the respondents organization are distinct legal entities and hence, the combined seniority list cannot be effectuated, thereby, making the impugned judgment liable to review.
28. This Court is of the view that in the instant case, the petition for review requires a long drawn process of reasoning. It requires advertence on merits which is in the province of the appellate Court. As per the observations made by this Court qua the legal propositions with respect to the scope of review, the Courts must not get into the re-appreciation of facts and evidence.
29. As far as the facts of the instant petition is concerned, the petitioners have not been able to make out a case for review as all the arguments and contentions advanced by them clearly seem to be the grounds for appeal and the said contentions cannot be entertained under the review jurisdiction of this Court. In this regard, this Court finds that only errors that are apparent on record may be reviewed and errors required to be discovered through a process of reasoning cannot be entertained under the review jurisdiction.
30. Hence, the present review petition lack merits as no essential grounds as observed in the judgment of Kamlesh Verma (Supra) can be drawn out of
Signature Not Verified Digitally Signed REVIEW PET. 23/2024 in W.P.(C) 16086/2022 Page 9 of 11 By:GAURAV SHARMA Signing Date:31.01.2024 17:35:35 the plea of review. This Court is of the considered view that the petitioners by way of the present review petition seems to repeat their old and overruled arguments which is not enough to re-open the concluded case. There is neither any discovery of new evidence nor there is any error apparent on the face of the record. The factual errors as contended on behalf of the petitioners are also absent and any arguments thereto are baseless.
31. Furthermore, even if it is presumed that there is any error in the impugned judgment, the same cannot be considered hereunder given the limited scope of intervention imposed upon this Court under its review jurisdiction and in light of the settled law, review proceedings cannot be equated with the original hearing of the case.
32. Accordingly, this Court is inclined to hold that the present review petition is liable to be dismissed since there is no material error manifest on the face of the impugned judgment, and in the event the petitioners' arguments are accepted, the same would lead to undermine the impugned judgment's soundness or might even result in miscarriage of justice. The contentions of the petitioner touch upon the merits of the case, which cannot be examined, as the petitioners cannot be permitted to re-argue their case. Therefore, the premise of the instant review does not disclose any fundamental error apparent on the face of record, which would merit allowing the present review petition.
33. In light of the above discussions of facts and law, the petitioners have failed to point out any ground for review in the instant petition and it is held
Signature Not Verified Digitally Signed REVIEW PET. 23/2024 in W.P.(C) 16086/2022 Page 10 of 11 By:GAURAV SHARMA Signing Date:31.01.2024 17:35:35 that there is no irregularity in the impugned judgment dated 20th December, 2023 that requires intervention of this Court by way of review.
34. Therefore, this Court does not find any merit in the instant petition. Accordingly, the same stands dismissed, along-with pending applications, if any.
35. The order be uploaded on the website forthwith.
CHANDRA DHARI SINGH, J JANUARY 19, 2024 SV/RYP/AV
Click here to check corrigendum, if any
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