Deputy General Manager, Syndicate Bank v. P. Babu (Review Petition No. 173 of 2010 in Writ Appeal No. 1766 of 2002)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 RP.No. 173 of 2010() -------------------AGAINST THE JUDGEMENT/ORDER IN WA.1766/2002 .................... REVIEW PETITIONER: APPELLANT --------------------------------------------------- THE DEPUTY GENERAL MANAGER, SYNDICATE BANK, ZONAL OFFICE, THIRUVANANTHAPURAM, REP. BY THE POWER OF ATTORNEY HOLDER, DEPUTY GENERAL MANAGER, SYNDICATE BANK, REGIONAL OFFICE, SHANMUGHAM ROAD, ERNAKULAM. BY ADV. SRI.M.P.ASHOK KUMAR RESPONDENT: RESPONDENT ------------------------------------------- P.I.BABU, PUTHENPEEDIKAYIL HOUSE, KOOTHATTUKULAM. ADV. SRI.P.RAMAKRISHNAN FOR R THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 25/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## APPENDIX ## PETITIONER'S EXHIBITS: ANNEXURE A1 : PHOTOCOPY OF THE JUDGMENT IN R.P.NO.544/2007 DT.28.11.2008 ANNEXURE A2 : PHOTOCOPY OF THE JUDGMENT IN R.P.NO.544/074 DT.28.11.2008 RESPONDENT'S EXHIBITS : ANNEX.R-1(a) : TRUE COPY OF LETTER DT.23.3.2009 SUBMITTED BY THE RESPONDENT BEFORE THE PETITIONER. ANNEX.R-1(b) : TRUE COPY OF SAID JUDGMENT DT.28.5.2002 IN OP.13836/97 // TRUE COPY// PA TO JUDGE ## **K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** Review Petition No. 173 of 2010 in Writ Appeal No.1766 of 2002 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 25[th ] day of August, 2011 ## **ORDER** ## K.M. Joseph J., The review petitioner is the appellant in the Writ Appeal. The writ Appeal was filed by the employer, challenging the judgment in the writ petition. The learned Single Judge interfered in the disciplinary proceedings against the respondent and found that the proceedings were not proper or fair and therefore the appellant bank was directed to re-consider the matter. In the Appeal, this Court took note of the fact that the respondent was convicted. Therefore this Court held that conviction and sentence Review Petition No. 173 of 2010 **==> picture [14 x 9] intentionally omitted <==** in the criminal case by itself will be a ground for dismissal from service and so much so the findings in the disciplinary proceedings independently initiated and concluded was of no consequence. Accordingly the Writ Appeal was closed holding that the dismissal already ordered can be treated as dismissal based on such conviction. Of course, in case the appeal against conviction is modified or annulled, the Bank will be free to initiate further action either as directed by the learned Single Judge or in terms of Clause 11 of the Syndicate Officer Bank Employees Regulations, it was ordered. 2. The petitioner had filed a review petition as R.P. No. 544 of 2007. The same was heard and disposed of on 28.11.08. Therein this Court noted that, it will be open to the Bank to file Review Petition as and when conviction is interfered with. Therefore the said RP was closed without considering the Review Petition on merits, but clarifying the judgment as above and leaving freedom to the Review petitioner to file fresh RP, if situation arises. It is accordingly that the petitioner has filed the present Review Petition. Review Petition No. 173 of 2010 **==> picture [14 x 9] intentionally omitted <==** 3. According to the petitioner, this Court has interfered with the conviction in Cr.Appeal No.900 of 1999 and set aside the conviction of the respondent and therefore it became necessary to review the judgment. The contention is that on the same set of facts disciplinary proceedings were initiated and the standard of proof required in criminal proceedings and in departmental proceedings is totally different. It is also pointed out that the respondent was guilty in another case and he was not convicted as no sanction was there. Reliance is also placed on Clause 11 of the Syndicate Bank Officer Employees Regulations 1976. 4. The learned counsel appearing on behalf of the employee pointed out that no ground exists for review. There is delay in the matter. It is pointed out that by Ext.R1(a) the bank was informed of the judgment in Criminal Appeal No. 900 of 1999. Thereafter, the review petition was filed only in February 2010. There is inordinate delay, it is contended. 5. There is no requirement of filing an affidavit by the petitioner for condonation of delay for a review under writ proceedings, it is submitted. It is pointed out that the review in a Review Petition No. 173 of 2010 **==> picture [14 x 9] intentionally omitted <==** proceeding under Article 226 is maintainable by virtue of the fact that there is inherent power of review with the writ Court. He relied on the judgment of this Court reported in **Secretary, Ministry of Health & F.W.D. v. Aswathy Elsa Mathew** (2008(2) KLT 670). Therein inter-alia it is held as follows: “While an application to condone the delay and an application for review within the formal of the provisions of the CPC and the Limitation Act may not be necessary, an application for review of an order passed under Articles 226 or 227 filed after a long delay of time, say more than the normal period fixed for similar purposes by the Limitation Act, it is not only appropriate, but necessary, that reasons are disclosed, establishing sufficient cause for the delay. In the normal course, a Writ Petition has to be filed within a period of 90 days. It is appropriate that an application for review of an order passed in a writ proceedings has to be filed within a further period of 30 days, subject to exceptions as could be claimed on principles of justice. Inordinate delay thereafter has to be explained to the satisfaction of the Court. But, this does not mean that there should be a separate Review Petition No. 173 of 2010 **==> picture [14 x 9] intentionally omitted <==** application to condone the delay or an application for review in the form, prescribed by the C.P.C.” 6. While application to condone the delay may not be necessary, when review is not filed within a period 30 days, the reason for the delay must be explained. 7. Learned counsel for the petitioner has filed an affidavit to explain the reason for delay. Counter affidavit was also filed. We heard the learned counsel. It is no doubt pointed out by the learned counsel for the petitioner that even in the counter affidavit the facts are not correctly stated. 8. The averment in paragraph 8 is emphasised, namely, it is contended that it is incorrectly stated that the petitioner applied for a copy of the judgment and it was obtained in the 2[nd] week of June 2009. It is pointed out that the judgment produced as Annex.A2 is the judgment sent by the writ petitioner along with Ext.R1(a). It is further contended that at least till October 2009 there was a duty to explain delay. In fact, it is pointed out that the petition though prepared in October 2009, was actually filed in Feb 2010. Learned Review Petition No. 173 of 2010 **==> picture [14 x 9] intentionally omitted <==** counsel for the respondent also contended that actually the matter was considered by the Bench. 9. It is true that there is delay. We have perused paragraphs 8 and 9 of the Affidavit. Learned counsel for the petitioner seeks to explain the statement in paragraph 8, by saying that he had only applied for a copy and not for a certified copy. We take note of the fact that the petitioner had filed an earlier petition to review where liberty was given to the petitioner to file review petition. We further notice that in the writ appeal this Court is not seen to have considered the contention of the appellant. In the facts of this case we would think that the interests of justice would be sub served if we allowed the Review Petition. 10. Accordingly we allow the Review Petition subject to the condition that the writ petitioner will pay a sum of Rs.3,000/- to Kerala State Legal Services Authority and another sum of Rs.3,000/- to the learned counsel for the respondent within a period of 10 days from today and produce a memo to that effect. If the cost is paid as aforesaid, the Review Petition will stand allowed and the Writ Appeal will be restored and listed for hearing. Review Petition No. 173 of 2010 **==> picture [14 x 9] intentionally omitted <==** In case, the cost is not paid, the Review Petition will stand dismissed. ## **Sd/-** **K.M.JOSEPH, (JUDGE)** **Sd/M. L. JOSEPH FRANCIS, (JUDGE)** dl/ // TRUE COPY // PA TO JUDGE