RP No. 821 of 2022 in OP(CAT) No. 102 of 2020 (Union of India & others v Sam Divanni & others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **FRIDAY, THE 21[ST] DAY OF OCTOBER 2022 / 29TH ASWINA, 1944** **RP NO. 821 OF 2022** **OP (CAT) 102/2020 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/PETITIONERS** 1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF RAILWAYS, RAIL BHAVAN, NEW DELHI, PIN - 110001 2 THE GENERAL MANAGER, SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN P.O., CHENNAI – 600 003 3 THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION, TRIVANDRUM 695014 BY ADV T.C.KRISHNA ## **RESPONDENTS/RESPONDENTS** 1 SAM DIVANNI, SENIOR ASST.LOCO PILOT, CCRC OFFICE, SOUTHERN RAILWAY, TRIVANDRUM, RESIDING AT AMBIYAYAM, NORTH ARYAD PO, ALAPPUZHA 688538 2 B.AJIKRISHNAN SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN RAILWAY, TRIVANDRUM, RESIDING AT DEVARAGAM, VALIYAKULANGARA, OCHIRA, PIN - 690526 3 G. VINOD SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN RAILWAY, TRIVANDRUM, RESIDING AT RESIDING AT DAKSHINA, NEDUMGOLAM, PARAVUR, KOLLAM, PIN - 691334 4 M.S. SANTHOSH KUMAR SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN RAILWAY, TRIVANDRUM, RESIDING AT SANTHOSH BHAVAN, PERAYAM, MULVANA, KOLLAM, PIN - 691503 RP 821/2022 2 |5|R. RAVIKUMAR| |---|---| ||SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN| ||RAILWAY, TRIVANDRUM, RESIDING AT CHEMPAKAM,| ||KARIPOOR, MALAINKEEZHU, TRIVANDRUM, PIN - 695571| |6|S. MANOJ KUMAR| ||SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN| ||RAILWAY, TRIVANDRUM, RESIDING AT ARCHANA,| ||NEDUNGOLAM PO, PARAVOOR, KOLLAM, PIN - 691334| |7|T.A.SAFEER| ||SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN| ||RAILWAY, TRIVANDRUM, RESIDING AT THANDIYAKKADA| ||HOUSE, ELOOR NORTH, UDYOGAMANDAL, ERNAKULAM, PIN| ||- 683501| |8|K. ANILKUMAR| ||SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN| ||RAILWAY, TRIVANDRUM, RESIDING AT KRISHNAVENI,| ||ALANCHERI, YEROOR PO, KOLLAM, PIN - 691312| |9|G. KISHOR KUMAR| ||SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN| ||RAILWAY, TRIVANDRUM, RESIDING AT RENJINI HOUSE,| ||CHAMPAKARA, KARUKACHAL, KOTTYAM, PIN - 686540| |10|K.B. VENU GOPALAN| ||SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN| ||RAILWAY, TRIVANDRUM, RESIDING AT CHERANALLOOR,| ||NEAR SOUTH NADA, BHAGAVATHY TEMPLE, ERNAKULAM,| ||PIN - 683544| |11|B. ANILKUMAR| ||SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN| ||RAILWAY, TRIVANDRUM, RESIDING AT GOURI| ||NANDANAM,MUNDANCHIRA, KOLLAM, PIN - 691014| |12|PRADEEP G. KUMAR| ||SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN| ||RAILWAY, TRIVANDRUM, RESIDING AT KUMBUKATTU| ||KIZHAKKETHIL, CHOORAKODE PO, ADOOR, PIN - 691551| |13|R. MAHESH KUMAR| ||SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN| RP 821/2022 3 RAILWAY, TRIVANDRUM, RESIDING AT SHIVAMUDRA, HANUMANKOIL STREET, SOUTH CHITTOOR, KOCHI, PIN - 682027 - 14 P.S.SURALAL SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN RAILWAY, TRIVANDRUM, RESIDING AT THANNIVILA HOUSE, ERAM, KARANCODE PO, KOLLAM, PIN - 691579 - 15 R. MADHUSOODANAN SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN RAILWAY, TRIVANDRUM, RESIDING AT AJAYANIVAS, KUNNATHULUMMOODU, KAYAMKULAM, PIN - 690502 - 16 JOHNY THOMAS SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN RAILWAY, TRIVANDRUM, RESIDING ATMUTTOM BAZAR, KOTTUPPALLY HOUSE, CHERTHALA, PIN - 688524 - 17 N.V. GIREESH KUMAR SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN RAILWAY, TRIVANDRUM, RESIDING AT NIRAPATH KIZHAKKETHARA, MUVATTUPUZHA, PIN - 686551 - 18 GIRISH BABU SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN RAILWAY, TRIVANDRUM, RESIDING AT PARAYIL HOUSE, KUMARANELLOOR, KOTTAYAM, PIN - 686016 - 19 P. BIJU SENIOR ASST. LOCO PILOT, CCRC OFFICE, SOUTHERN RAILWAY, TRIVANDRUM, RESIDING AT BIJU BHAVAN, CHERTHALA, PIN - 688524 20 M. DHINU RAKESH LOCO PILOT (SHUNTING-II), CCRC OFFICE, SOUTHERN RAILWAY, NAGERCOIL, PIN - 629002 - 21 ANAND RAYIPUDI LOCO PILOT (SHUNTING-II), CCRC OFFICE, SOUTHERN RAILWAY, NAGERCOIL, PIN - 629002 22 S. JAYAKUMAR LOCO PILOT (SHUNTING-II), CCRC OFFICE, SOUTHERN RP 821/2022 4 RAILWAY, NAGERCOIL, PIN - 629002 BY ADVS. PREMCHAND R. NAIR K.MANICKARAJ(MS 1561/2016) THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 21.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RP 821/2022 5 A.K.JAYASANKARAN NAMBIAR & GOPINATH P., JJ. ---------------------- R.P.No.821 of 2022 in OP(CAT).No.102 of 2020 ----------------------Dated : 21[st] October, 2022 ## ORDER ## Gopinath P., J 1. This Review Petition has been filed by the Union of India and others seeking review of the judgment of this Court in OP(CAT).102/2020. 2. At the outset, it must be noticed that the judgment in OP(CAT).102/2020 was challenged by the Union of India before the Supreme Court of India and by order dated - 28.3.2022 in Special Leave to Appeal (C) No.20841/2021, the Supreme Court of India declined to grant leave and dismissed the Special Leave Petition in the following manner: “We are not inclined to interfere with the judgment and order passed by the High Court. The special leave petition is, accordingly, dismissed.” RP 821/2022 6 3. We notice from the order of the Supreme Court in Special Leave to Appeal (C) No.20841/2021 that the Supreme Court while dismissing the Special Leave Petition has clearly found that the Court is not inclined to interfere with the order passed by the High Court. It is significant that no liberty was reserved to the Union of India to file a Review Petition before this Court. While considering an identical issue in R.P.503/2021 this Bench found as follows : “2. When the review petition came up for admission, we heard Sri.Gopalakrishna Kurup the learned Advocate General, duly instructed by Sri.Surin George Ipe, on behalf of the Review Petitioners, Sri.S.Sreekumar, the learned senior Advocate duly instructed by Sri.Saji Varghese appearing for the 2[nd] respondent, Sri.P.Raveendran, the learned senior counsel duly assisted by Smt.Aparna Rajan for the 1[st] respondent, Sri.Krishnamoorthy, the learned Standing counsel for the University Grants Commission and Sri. Jaiby Paul, the learned counsel for the 4th respondent. RP 821/2022 7 We also took note of the recent judgment of the Supreme Court in Khoday Distilleries Limited (now known as **Khoday India Limited) and others v. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollega** l [2019 (4) SCC 376], where the Court, after referring to the precedents in the matter, found as follows on the issue of entertainment of Review Petition by the High Court, after dismissal of Special Leave Petition by the Supreme Court:- “26.2. We reiterate the conclusions relevant for these cases as under:(Kunhayammed case [(2000) 6 SCC 359],SC p.384) “(iv) An order refusing special leave to appeal may be a nonspeaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. (v) If the order refusing leave to appeal is a speaking order i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as re judicata in subsequent proceedings RP 821/2022 8 between the R.P.No.503/2021 in W.A.No.133/2021 4 parties. (vi) Once leave to appeal has been granted and appellate jurisdiction of the Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of the HighCourt to entertain a review petition is lost thereafter as provided by sub-rule 91 of Order 47 Rule 1 CPC” When we peruse the averments in the Review Petition before us, we find that the grounds for interference raised therein are substantially the same as the grounds in the Special Leave Petition that was filed by the University before the Supreme Court, a copy of which was made available to us for our perusal. In particular, grounds E,F,G,H,I, J & K in the said Special Leave Petition substantially covers the grounds raised in the Review Petition. Thus even if we were to find that the review petition could be entertained despite the order in the Special Leave Petition, we would be committing an injustice if, we were to examine the very same grounds in an application for review under O.47 Rule 1 CPC which, apply to proceedings in an intraCourt appeal under Section 5 of the Kerala High Court Act. 4. As already noticed, against the judgment, both the University as well as the College had preferred RP 821/2022 9 Special Leave Petitions before the Supreme Court on substantially the same grounds as are now urged before us in the Review Petition. The Supreme Court, by its order extracted above, dismissed the Special Leave Petitions, without reserving any liberty to the petitioners herein to approach this Court through a review petition impugning this Court's Judgment dated 8.4.2021 in W.A.No.133/2021. In our view, the aforesaid aspects assume significance in the light of the findings of the Supreme Court in Khoday Distilleries Limited case (supra), particularly the one that holds that in cases where the order of the Supreme Court dismissing the Special Leave Petition contains a finding other than a declaration of law, the said finding would bind the parties thereto and also the Court, Tribunal or Authority in proceedings subsequent thereto, by way of judicial discipline, since the Supreme Court is the Apex Court of the Country. Accordingly, while the dismissal of the Special Leave Petition may not by itself attract the principle of 'merger' to hold that the judgment of the High Court has since merged with that of the Supreme Court, we cannot ignore the observations of the Supreme Court while dismissing the Special Leave Petition and the same have to be given due weightage as a matter of judicial discipline while deciding the fate of the present review petition. We find the expression RP 821/2022 10 “We are not inclined to entertain the Special Leave Petitions under Article 136 of the Constitution” in the order of the Supreme Court as an expression of the subjective satisfaction of the Court, pursuant to an application of mind by the Court to the facts and grounds stated in the Special Leave Petitions, R.P.No.503/2021 in W.A.No.133/2021 7 that there were no grounds made out to entertain the Special Leave Petitions. The second paragraph of the Court's order only records the consequences of that satisfaction, when it states that the Special Leave Petitions are accordingly dismissed. The observations of the Court in its order dated 30.6.2021 dismissing the SLP's together with the fact that no liberty was reserved in the said order to approach this Court through a review petition, lead us to hold that it would be in the best interests of all concerned that we now put an end to this long drawn litigation. We are, at this juncture, reminded of the following passage in the opinion of P.T.Raman Nair C.J speaking for the Full Bench of this Court in M.P. Raghavan Nair v. State Insurance Officer, AIR 1971 Ker 175: “The principles are principles of repose and peace. “Long dormant claims have often more of cruelty than of justice in them,” said Best, C.J. in A Court v. Cross, (1825) 130 ER 540. And so, we might add, has the fighting of the same legal battle over again with the same adversary, or, once a wrong RP 821/2022 11 has been suffered, the fighting of the battle for redress piecemeal.” (Emphasis is ours) 4. Applying the principles laid down by this Court, following the judgment of the Supreme Court in **Khoday Distilleries Limited,** we are clear in our mind that the present Review Petition is not maintainable. It must also be noticed that an earlier Review Petition filed seeking review of the very same judgment was dismissed by order dated 19.11.2021 in R.P.Nos.467/2021 and 468/2021. 5. For all these reasons we find that the present Review Petition is not maintainable and it is accordingly dismissed. Sd/- A.K.JAYASANKARAN NAMBIAR, Judge Sd/- GOPINATH P, Judge Mrcs/21.10. RP 821/2022 12 ## **APPENDIX OF RP 821/2022** PETITIONER ANNEXURES Annexure-A TRUE COPY OF ORDER PASSED BY THE HONOURABLE SUPREME COURT IN SPECIAL LEAVE TO APPEAL NO. 20841/2021.