Smt. Kanchana Badaseth v. Union Of India (Uoi) And Four Ors., Orissa High Court, Judgment, Law, casemine.com

Precedent	Rule or Principle Cited For	Application by the Court
Kunhayammed and Ors. v. State of Kerala and Anr.	Held that certain earlier decisions (which barred review after dismissal of an SLP) were overruled; clarified that dismissal of an SLP (even by non-speaking order) does not necessarily deprive a person of the statutory right to seek review; explained two-stage nature of Article 136 jurisdiction.	The court relied on Kunhayammed to hold that a Review Application is maintainable despite the prior dismissal of an SLP, confining earlier contrary statements to their facts.
Gopabandhu Biswal v. Krishna Chandra Mohanty and Ors.	Stated that the Tribunal's power of review is similar to the power under Order 47, Rule 1, CPC; observed that an appeal lies to the Supreme Court; held that once an SLP is filed and rejected the Tribunal's order became "final and binding" in that case.	The opposite party relied on this decision to argue that a review before the Tribunal was not maintainable after SLP rejection; the court considered this decision but limited its application in view of Kunhayammed.
State of Maharashtra v. Prabhakar Bhikaji Ingle	One of two earlier decisions referred to in Gopabandhu Biswal, treated as supporting the view that dismissal of SLP precluded review (as interpreted in Gopabandhu).	The court noted that the views in this decision were overruled (or their broad statements corrected) by the larger Bench decision in Kunhayammed and therefore could not sustain a bar on review in the present case.
Sree Narayana Dharmasanghom Trust v. Swami Prakasananda	Earlier decision whose statements were relied upon to argue merger or finality following SLP dismissal.	The court observed that Kunhayammed held that statements in this decision cannot be stretched to exclude the jurisdiction to review; thus it does not operate to bar review here.
L. Chandra Kumar v. Union of India	Marked a change in remedy: after this decision (18.3.1997) challenge to Tribunal orders would be by appeal in the High Court rather than by SLP to Supreme Court (contextual/timing relevance).	The court used the timing in L. Chandra Kumar to explain why, in this case (where the Tribunal order was dated 13.8.1993), the only available remedy at that time had been filing an SLP to the Supreme Court.
K. Ajit Babu and Ors. v. Union of India and Ors.	Affirms that the right of review is available only if the application is filed within the period of limitation; review lies on restricted grounds of Order 47, CPC.	The court relied on this authority to emphasize that the statutory/Rule 17 time-limit (thirty days) is mandatory and that the petitioner's review was not filed within that period.
Rajayya Bosi v. Union of India and Ors.	Division Bench view that in absence of any provision empowering the Tribunal to condone delay, a review application filed beyond thirty days should be rejected.	The court cited this decision to support the conclusion that the Tribunal correctly rejected the review as barred by delay because there was no power to condone the delay under the Tribunal's rules.

1. The subject matter of challenge in this writ petition is an order of the Central Administrative Tribunal, Cuttack Bench, Cuttack dated 10.5.1999 by which the Review Application No. 13 of 1994 filed by the petitioner was dismissed. The said Review Application was dismissed by the Tribunal, inter alia, on the ground of delay. The Tribunal found that the Review Application was filed on 22.2.1994 for reviewing an order dated 13.8.1993. The time for filing the Review Application as specified under Rule 17 of the Central Administrative Tribunal (Procedure) Rules is 30 days.

2. However, another question has arisen in this case, namely, whether a Review Application is maintainable once the order of the Tribunal was challenged before the Hon'ble Supreme Court by filing an SLP and the same SLP was dismissed.

3. Learned Counsel for the petitioner has submitted that such Review Application is maintainable in view of Supreme Court's decision in the case of Kunhayammed and Ors. v. State of Kerala and Anr. whereas the learned Counsel for opposite party No. 5 has urged that the Review Application in the facts and circumstances of the case is not maintainable inasmuch Special Leave Petition filed against the order of the Tribunal was rejected by the Hon'ble Supreme Court.

4. The order of the Hon'ble Supreme Court by which the SLP filed by the petitioner was dismissed is set out below:

Learned counsel seeks to withdraw the SLP and stated that he will file a Review petition before the Tribunal. SLP is dismissed as withdrawn.

5. Learned Counsel for both sides cited certain judgments in support of their contentions. Learned Counsel for opposite party No. 5 has cited the judgment of the Hon'ble Supreme Court in the case of Gopabandhu Biswal v. Krishna Chandra Mohanty and Ors. . In Gopabandhu Biswal's case the Hon'ble Supreme Court was considering the provisions of Section 22(3) of the Administrative Tribunals Act, 1985 specially Clause (f) thereof which confers on the Tribunal the power of review. In para 8 at page 452 of the said report the Hon'ble Supreme Court held that the power of review which was granted to an Administrative Tribunal is similar to the power given to a Civil Court under Order 47, Rule 1, CPC. The Hon'ble Supreme Court held in para 8 that an appeal lies to the Supreme Court from a decision of the Administrative Tribunal.

6. It may be noted in this connection that prior to the judgment of the Hon'ble Supreme Court in the case of L. Chandra Kumar v. Union of India , petition against the order of the Central Administrative Tribunal used to be filed in Supreme Court. The judgment in L. Chandra Kumar was rendered on 18.3.1997. But in the instant case, the judgment of the Tribunal was passed on 13.8.1993. Therefore, at the time only SLP could be filed before the Hon'ble Supreme Court and that was filed and in the said SLP the order which has been set out above was passed. Therefore, at that relevant point of time only an appeal lay before the Hon'ble Supreme Court from an order of the Central Administrative Tribunal.

7. In that context, the observation of the Supreme Court in the case of Gopabandhu Biswal (at para 8) has to be appreciated. In para 8 of Gopabandhu Biswal's case, the Hon'ble Supreme Court held "an appeal lies to this Court from a decision of the Administrative Tribunal". If an appeal is preferred, the power of review cannot be exercise Since in Gopabandhu Biswal's case a special leave petition was preferred before the Hon'ble Supreme Court from the judgment of the Tribunal and the SLP was rejected, the Hon'ble Supreme Court held that the order of the Tribunal became 'final and binding', (para 8 page 452 of the report). The Hon'ble Supreme Court held that once an SLP is filed and rejected, the party cannot go back to the Tribunal to apply for review. In saying so, the learned Judges of the Hon'ble Supreme Court referred to two earlier decisions of the Supreme Court in the case of State of Maharashtra v. Prabhakar Bhikaji Ingle and also in the case of Sree Narayana Dharmasanghom Trust v. Swami Prakasananda .

8. Both the two aforesaid decisions were overruled by the Supreme Court subsequently in a three Judge Bench of the Supreme Court in the case of Kunhayammed and Ors. v. State of Kerala and Anr. . In paragraph 23 at page 375-376 of the report, the Hon'ble Supreme Court while referring to the ratio in the case of Sree Narayana Dharmasanghom Trust held that the statement made in that decision cannot be stretched to hold that an order dismissing SLP whether speaking or a non-speaking cannot attract the doctrine of merger. It was also held that the ratio in the case of Sree Narayana Dharmasanghom Trust cannot be stretched to exclude the jurisdiction of the Court in passing the order to review the same.

9. In paragraph 24 of the judgment in Kunhyammed (supra) at page 376 of the report the view taken by the Supreme Court in the case of State of Maharashtra (supra) was also considered and the Supreme Court was pleased to hold that the law in that case has, been too broadly stated and the learned Judges in Kunhayammed held that it is difficult to subscribe to the view that the dismissal of SLP without a speaking order amounts to confirmation by the Supreme Court of the order against which leave was sought for and that the order had stood merged in the order of the Supreme Court. Therefore, those two decisions which were relied on in the case of Gopabandhu Biswal were expressly overruled by the larger Bench of the Supreme Court in Kunhayammed.

10. The decision in the case of Gopabandhu Biswal was considered by the Supreme Court in the case of Kunhayammed in paragraph 29 at page 379 of the report. The decision in Gopabandhu Biswal has not been overruled but the learned Judges held that the said decision was peculiar to the facts of that case. This observation was made by the Hon'ble Supreme Court after considering paragraphs 8, 12 and 13 of the judgment in Gopabandhu Biswal.

11. In Kunhayammed (supra) the Supreme Court held that the jurisdiction conferred on it under Article 136 of the Constitution has two stages. The first stage is over by refusing or granting special leave to appeal and the second stage begins if leave has been granted in hearing the appeal. Learned Judges have held that distinction between the two stages is clearly pointed by Rules, 4, 10, 13 and 11 of Order 16 of the Supreme Court Rules which were framed in exercise of powers under Article 145 of the Constitution. Learned Judges further held that it would not be just to deprive an aggrieved person of the statutory right of seeking relief in review jurisdiction of the High Court if a case for relief in that jurisdiction is made out merely because an SLP under Article 136 had been rejected by the Supreme Court by a non-speaking order.

12. In view of the latest judgment of the Supreme Court by a larger Bench, the principle laid down by the Supreme Court in Gopabandhu's case, cannot hold the field. In fact, in Kunhayammed, the principles in Gopabandhu's case were considered and the Supreme Court held that the same be confined to the facts of that case. In view of the ratio in Kunhayammed, the review application is maintainable.

13. Now, the question is whether the order which has been passed on the Review application is sustainable or not. The relevant Rules in connection with review petition have been provided in Rule 17. The said Rule is set out below:

17. Application for review.

(1) No application for review shall be entertained unless it is filed within thirty days from the date of receipt of copy of the order sought to be reviewed.

(2) A review application shall ordinarily be heard by the same Bench which has passed the order, unless the Chairman may, for reasons to be recorded in writing, direct it to be heard by any other Bench.

(3) Unless otherwise ordered by the Bench concerned, a review application shall be disposed of by circulation and the Bench may either dismiss the application or direct notice to the opposite party.

(4) When an application for review of any judgment or order has been made and disposed of, no further application for review shall be entertained in the same manner.

(5) No application for review shall be entertained unless it is supported by a duly sworn affidavit indicating therein the source of knowledge, personal or otherwise, and also those which are sworn on the basis of the legal advice. The counter affidavit in review application will also be duly sworn affidavit wherever any averment of fact is disputed.

14. In the instant case, the order which is sought to be reviewed was known to the petitioner inasmuch as the petitioner filed the application for Special Leave before the Hon'ble Supreme Court. The order of the Central Administrative Tribunal was passed on 13.8.1993. The Special Leave Petition from the said petition was dismissed by the Hon'ble Supreme Court on 17.1.1994. In the said petition dismissing the Special Leave, no leave was granted by the Hon'ble Supreme Court to file a review petition. Hon'ble Supreme Court merely recorded the submissions of the learned Counsel for the petitioner and dismissed the Special Leave Petition. The Review Petition was admittedly filed on 22.2.1994 which is much after 30 days of receipt of the copy of the order which is sought to be reviewed.

15. In the case of K. Ajit Babu and Ors. v. Union of India and Ors. , the Hon'ble Supreme Court held in para-4 at page 476 of the Report "Besides that, the right of review is available if such an application is filed within the period of limitation." Here, admittedly the period of limitation is thirty days. Learned Judges in para-4 at page 477 of the Report in K. Ajit Babu further observed that "a right of review is available to the aggrieved persons on restricted ground mentioned in Order 47 of the Code of Civil Procedure if filed within the period of limitation." Here, admittedly the review petition was not filed within the period of thirty days from the date of receipt of the order which is sought to be reviewed. There is no provision for extension of time for filing of review petition.

16. In the case of Rajayya Bosi v. Union of India and Ors. , a Division Bench of this Court held that in the absence of any provision empowering the Tribunal to condone the delay, review application should be rejected as it was admittedly filed beyond thirty days.

17. For the reasons aforesaid, this writ petition, which challenged the dismissal of Review, as barred by delay cannot be allowed. The same is dismissed. No order as to costs.

N. Prusty, J.

18. I agree.

Smt. Kanchana Badaseth v. Union Of India (Uoi) And Four Ors.

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Opposite Party No. 5's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Smt. Kanchana Badaseth v. Union Of India (Uoi) And Four Ors.

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