T.K. David v. Kuruppampady Service Co-operative Bank Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947** **RP.No.805 OF 2018 IN WA. 399/2014** **[AGAINT THE JUDGMENT DATED 11.03.2015 OF THIS HONOURABLE COURT IN W.A.NO.399/2014 FILED IN CHALLENGE OF JUDGMENT IN W.P.(C) NO.25797/2011]** ## **REVIEW PETITIONER/APPELLANT:** **T.K.DAVID, AGED 63 YEARS (FORMER SECRETARY OF KARUPPAMPADY SERVICE CO-OPERATIVE BANK LTD. NO.E 257), THOTTIPARAMBIL HOUSE, MEPRATHUPADY, VENGOLA.P.O., ERNAKULAM-683 556.** **BY ADVS. SRI.MATHEWS J.NEDUMPARA SRI.P.BIJIMON SRI.JACOB SAMUEL SMT.SHEENAMOL VARGHESE** ## **RESPONDENTS/RESPONDENTS:** **1 KURUPPAMPADY SERVICE CO-OPERATIVE BANK LTD. NO.E 257, KURUPPAMPADY.P.O., PIN-683 545, REPRESENTED BY ITS SECRETARY.** - **2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(G), ERNAKULAM,COCHIN-16.** **3 THE CO-OPERATIVE ARBITRATION COURT VANCHIPOOR,FUND ROAD,FORT.P.O, THIRUVANANTHAPURAM - 695 023.** - **4 THE KERALA CO-OPERATIVE TRIBUNAL, T.C.14/2057,UNIVERSITY.P.O, THIRUVANANTHAPURAM-695 034.** **R1 BY ADV. SRI.P.K.VIJAYAMOHANAN** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 09.12.2019, THE COURT ON 06.02.2020 DELIVERED THE FOLLOWING:** RP.No.805 OF 2018 IN WA. 399/2014 2 ## **ORDER** ## _**Harilal, J**_ The review petitioner was the appellant in W.A.No.399/2014 of this Court and this review petition is filed with a prayer to review the judgment dated 11.03.2015, whereby this Court dismissed the said writ appeal and confirmed the dated the judgment 13.02.2014 passed by learned single Judge of this Court, dismissing W.P.(C) No.25797/2011 filed by the review petitioner. This review petition has been filed mainly on the ground that the Co-operative Tribunal acted without jurisdiction by setting aside the reduction to lower rank with back wages and converting the punishment to RP.No.805 OF 2018 IN WA. 399/2014 3 compulsory retirement with terminal benefits, subject to liabilities. According to the review petitioner, after setting aside the order granting reduction in rank, the course of action opened to the Co-operative Tribunal was to impose some other punishments like barring of increment, admonition and like only. But the Co-operative Tribunal went wrong by converting the same to a higher punishment i.e., voluntary retirement with terminal benefits. Though the said judgment passed by the Co-operative Tribunal was _void abintio_ , this Court omitted to consider the said plea in the judgment passed by the learned single Judge of this Court and the judgment passed by this Court in the writ appeal. The said omission will amount to an error RP.No.805 OF 2018 IN WA. 399/2014 4 apparent on the face of the record; warranting to review the judgment passed earlier. 2. Heard Sri.Mathews J Nedumpara, the learned counsel appearing for the review petitioner. The learned counsel fervently advanced arguments to articulate the point that the judgment under challenge passed by the Co-operative Tribunal was _void abintio_ . But neither single bench nor the division bench of this Court considered the such grave illegality in the said judgment. 3. Firstly, we must remind ourselves the scope and extent of jurisdiction and power to review a judgment by the court which passed it. The Supreme Court in _**M/s.Thungabhadra Industries Ltd V. The Government of Andhra Pradesh represented by the Deputy Commissioner of**_ RP.No.805 OF 2018 IN WA. 399/2014 5 _**Commercial Taxes, Anantapur [AIR 1964 SC 1372]**_ held as follows: _''there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. ''A review is by no means an in an appeal disguise whereby erroneous decision is re-built and corrected, but lies only for patent error... where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.''_ The learned counsel appearing for the review petitioner vehemently RP.No.805 OF 2018 IN WA. 399/2014 6 contended that there is an error apparent on the face of the record. Then the question is what is mistake or error apparent on the face of the record? 4. The Supreme Court in _**Meera Bhanja (Smt.) V. Nirmala Kumari Choudhury (Smt)**_ **[1995(1) SCC 170** ] described the mistake or error apparent on the face of the record thus:-''an error apparent on the face of the record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. In other words an error, which has to be established by long-drawn process of reasoning on points where there may conceivably be two opinions can hardly said to RP.No.805 OF 2018 IN WA. 399/2014 7 be an error apparent on the face of the record.'' 5. Bearing the aforesaid legal proposition in mind, we have meticulously examined the question, whether there is any omission amounting to mistake or error apparent on the face of the record. 6. Admittedly, the judgment passed by the Cooperative Tribunal was a common judgment passed in two appeals filed by the respondent and the review petitioner respectively as appeal Nos.78/2010 and 81/2010. Thus, obviously the respondent-Bank also had filed appeal before the Co-operative Tribunal for setting aside the reduction in rank and to get the punishment enhanced to dismissal and thereby the Cooperative Tribunal got jurisdiction and power to RP.No.805 OF 2018 IN WA. 399/2014 8 enhance the power after setting aside the punishment imposed by the arbitration court. 7. The single Bench of this Court also had elaborately considered the legality and sustainability of the conversion of punishment from reduction to lower rank to compulsory retirement in paragraph Nos.16 to 24 of the judgment. 8. This Court in paragraph Nos.11 and 12 of the judgment passed in writ appeal, elaborately considered the conversion of punishment to compulsory retirement with sufficient reasonings and justified the Co-operative Tribunal for setting aside the punishment of reduction to lower rank and imposing compulsory retirement. The aforesaid findings RP.No.805 OF 2018 IN WA. 399/2014 9 are made consciously after making due deliberations on the materials on record and the findings of the single Bench of this Court. The findings of this Court are supported by the decisions of the Apex Court in _**Hussain Sasansaheb Kaladgi v. State of Maharashtra**_ [ **AIR 1987 SC 1627]** and _**J.K.Synthetics Ltd. v.**_ . _**K.P.Agarwal and Another**_ **[(2007) (2) SCC 433]** 9. So there is no omission to consider the legality or correctness of the punishment or power of the Co-operative Tribunal to impose such a punishment of compulsory retirement. There is no mistake or omission amounting to error apparent on the face of the record, as contended by the revision petitioner. In view of the legal proposition laid down by the Supreme RP.No.805 OF 2018 IN WA. 399/2014 10 Court in the decisions referred above, this Court is not inclined to rehear or reconsider the above findings, as the review is not an appeal in disguise. Hence, the review petition fails and is dismissed accordingly. **Sd/- K.HARILAL, JUDGE** **sd/- C.S.DIAS, JUDGE** AMV/06/02/2020 RP.No.805 OF 2018 IN WA. 399/2014 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF ORDER IN SPECIAL LEAVE PETITION NO 24231/2015 BY THE HON'BLE SUPREME COURT** **ANNEXURE A2 TRUE COPY OF ORDER IN REVIEW PETITION NOI.1521/2016. ANNEXURE A3 TRUE COPY OF ORDER IN CURATIVE PETITTION NO.245/2016.** **RESPONDENTS ANNEXURES : NIL** **TRUE COPY P.A.TO JUDGE**