RP.No.171 of 2011 in W.P.C.No.19182/2008

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 RP.No. 171 of 2011() -------------------AGAINST THE JUDGEMENT/ORDER IN WPC.19182/2008 Dated 07/07/2008 .................... REVIEW PETITIONER(S): PETITIONERS --------------------------------- 1. THE SUPERINTENDENT OF POST OFFICES, VADAKARA DIVISION, VADAKARA. 2. POSTMASTER GENERAL, NORTHERN REGION, KOZHIKODE. 3. CHIEF POSTMASTER GENERAL, KERALA CIRCLE, TRIVANDRUM. 4. DIRECTOR GENERAL OF POSTS, DAK BHAVAN, NEW DELHI. 5. UNION OF INDIA, REP.BY ITS SECRETARY, MINISTRY OF COMMUNICATIONS, NEW DELHI. BY ADV. SRI.S.KRISHNAMOORTHY, CGC RESPONDENT(S): RESPONDENT ------------------------- P.M.PADMANABHAN, S/O.LATE KRISHNAKURUP, WORKING AS GROUP D, VADAKARA HEAD POST OFFICE. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 29/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** R.P.No.171 of 2011 in W.P.C.No.19182 of 2008 ---------------------------------------Dated this the 29[th] day of August 2011 ## **J U D G M E N T** ## **R.BASANT,J** This petition for review has been filed by the petitioners to review the judgment dated 07/07/2008. We extract the judgment dated 07/07/2008 in W.P.C.No.19182 of 2008. “The petitioners who are the respondents in O.A.No.704/06 challenge Exhibit P3 order in that O.A. and also Exhibit P5 order in Review Application No.32/07 filed in that O.A. But, we notice that the point raised by the writ petitioners is covered against them by the decision of the CAT in O.A.No.277/04 which was upheld by this Court in Exhibit P7 judgment in W.P.(C)No.3618/06 and connected case. Therefore, we feel that it is unnecessary to refer to the detailed facts of this case. Accordingly, this writ petition is dismissed.” 2. This review petition has been filed on 03/03/2011. Objection is raised by the respondent that the review petition is 2 R.P.No.171/2011 IN W.P.C.19182/08 hopelessly belated and that no justifiable reason is advanced to entertain this review petition at this point of time after elapse of a period of three years. Evidently following the dictum in **Secretary, Ministry of Health & F.W.D. v. Aswathy Elsa Mathew [2008(2)KLT 670],** no application to condone the delay in filing review petition was filed along that review petition. Subsequently C.M.Application No.98 of 2011 has been filed, by way of abundant caution to condone the delay in filing the review petition. 3. Respondent has entered appearance through counsel. The learned senior counsel Sri.O.V.Radhakrishnan argues that there is absolutely no justifiable reason to condone the delay. We have gone through the averments in the review petition as also the affidavit in support of C.M.Application No.98/2011. Suffice it to say that, there is significant absence of even the semblance of a reason to justify the long gap of time between 07/07/2008, the date of the judgment sought to be reviewed and 03/03/2011, the date on which the review petition is filed. The learned counsel for the respondent, relying on the observations of the learned Single Judge in paragraph 4 of the judgment in 3 R.P.No.171/2011 IN W.P.C.19182/08 **Aswathy Elsa Mathew** (Supra) submits that there is absolutely no justifiable reasons to entertain this review petition after such a long gap of time. The learned counsel further relies on the decision of the Supreme Court in **Shankara Coop.Housing Society Ltd. v. M.Prabhakar [(2011 5 SCC 607]** . 4. The short question is whether there is sufficient ground to entertain this review petition after such a long delay. We accept that even without a petition for condonation of delay, the review petition can be entertained. But, if the delay is not satisfactorily explained, the discretion available to this Court to review such an ancient order shall not be invoked. We are satisfied that sufficient reasons are not shown to exist. We are hence satisfied that this review petition which is hopelessly belated does not deserve to be entertained by us. 5. To ensure that the view taken by us does not result in failure/miscarriage of justice, we have requested the learned counsel for the review petitioner to explain the need for review on facts. The learned counsel submits that the decision in W.P.C.No.3618 of 2006 referred to in the judgment sought to be reviewed was challenged before the Supreme court and that the 4 R.P.No.171/2011 IN W.P.C.19182/08 challenge has now failed. The decision in W.P.C.No.3618 of 2006 is hence valid and binding on the review petitioners. The review petitioners have no objection in the Courts following the dictum in W.P.C.No.3618 of 2006 now. The learned counsel for the review petitioners evidently, in his attempt to explain the delay, makes a most categoric submission that even if the impugned judgment is reviewed, the petitioners shall not take any adverse action against respondent herein on the basis of such review. The order of the C.A.T which was challenged in W.P.C.No.19182 of 2008 has already been implemented and no steps shall be taken by the review petitioners to reverse the benefits that have already accrued to the respondent on the basis of the judgment sought to be reviewed, submits the learned counsel for the review petitioners. 6. The learned counsel for the review petitioners then contends that the difficulty faced by the petitioners is that the judgment dated 07/07/2008 is likely to be used as a precedent. We have gone through the judgment. It is for the said purpose, that we have extracted the entire judgment above. We fail to understand how this judgment can be reckoned as a precedent 5 R.P.No.171/2011 IN W.P.C.19182/08 for anything. It is unnecessary for us to go in any further detail. As we understand the judgment sought to be reviewed, it is only held that the dictum in W.P.C.No.3618 of 2006 can be applied to the facts of the given case. No dictum different from that in W.P.C.No.3618 of 2006 had been laid down in the judgment sought to be reviewed. The review petitioners have no grievance about the dictum in W.P.C.No.3618 of 2006. In these circumstances, we fail to understand the purpose of the review. 7. Since the judgment in W.P.C.No.3618 of 2006 has allegedly been applied incorrectly to the facts of the instant case, attempts may be made in later cases also to apply the dictum in W.P.C.No.3618 of 2006 incorrectly, submits the learned counsel for the review petitioners. That is the only grievance against the judgment sought to be reviewed. 8. The dictum in W.P.C.No.3618 of 2006 is not being questioned now. If there has been an error in applying the dictum to the facts of the instant case, we are unable to accept the argument that the judgment under review will prompt courts to wrongly apply the dictum in later cases. We take note of the categoric statement made by the learned counsel for the review 6 R.P.No.171/2011 IN W.P.C.19182/08 petitioners that they do not want to deny or take away any benefit conceded to the respondent on the basis of the judgment dated 07/07/2008. We do not think, in these circumstances, that the judgment deserves to be reviewed. The petitioner shall always have the option in any subsequent case to contend that the dictum in W.P.C.No.3618 of 2006 is not applicable to the facts of such case. We are satisfied, in these circumstances, that the rejection of the prayer for review on the ground of hopeless delay will not lead to any failure/miscarriage of justice. 9. This review petition is accordingly dismissed. ## **(R.BASANT, JUDGE)** ## **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge R.P.No.171/2011 IN W.P.C.19182/08 7 8 R.P.No.171/2011 IN W.P.C.19182/08 ## **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010