SLP dismissed being no merger, aggrieved party can pursue statutory right of review if available: SC

T.K.David v. Kuruppampady Service Cooperative Bank Ltd. and Ors., Special Leave Petition (C)No. 10482 OF 2020, 05 October, 2020

The Hon’ble Supreme Court comprising of Justice Ashok Bhushan, Justice M.R.Shah and Justice R.Subhash Reddy held in a case that when the main judgment of the High Court cannot be effected in any manner, no relief can be granted by the Supreme Court in a special leave petition filed against order rejecting review application to review the main judgment of the High Court

Facts:

The petitioner was an employee of Kuruppampady Service Co-operative Bank. Petitioner was suspended and disciplinary inquiry was conducted by the Bank. The Bank vide order dated 20.03.2003 dismissed the petitioner consequent to domestic enquiry. There has been series of litigation between the petitioner and the Bank and thereafter Cooperative Arbitration Court by order dated 18.08.2010 gave award by which punishment of dismissal was modified as reduction to a lower rank. Against the order dated 18.08.2010 both the petitioner as well as the Bank filed Appeal No. 78 of 2010 and No. 81 of 2010 respectively. The Cooperative Tribunal vide its judgment dated 16.08.2011 disposed of both the appeals by which the punishment of compulsory retirement on 20.03.2003 was imposed with terminal benefits subject to liability, if any, duly assessed. Against the order of the Cooperative Tribunal a writ petition was filed by the petitioner before the learned Single Judge of the Kerala High Court, which writ petition was dismissed by judgment dated 31.07.2013 against which judgment Writ Appeal No. 1313 of 2013 was filed by petitioner before the Division Bench. The Division Bench of the High Court vide its judgment dated 11.03.2015 dismissed the writ appeal filed by the petitioner. Aggrieved by the Division Bench judgment dated 11.03.2015, the petitioner filed a Special Leave Petition No. 24231 of 2015 before the Supreme Court, which was dismissed by order dated 21.08.2015.

After dismissal of special leave petition, a Review Petition No. 1521 of 2016 was filed in the Supreme Court, which too was dismissed on 02.03.2016. The petitioner also filed a Curative Petition No. 245 of 2016, which also was dismissed on 12.05.2016. After the aforesaid proceedings in the Supreme Court, the petitioner filed a Review Petition, R.P. No. 805 of 2018 in Writ Appeal No.399 of 2014, which review petition has been dismissed by the High Court vide its judgment dated 06.02.2020. Aggrieved with the judgment dated 06.02.2020, this special leave petition has been filed.

Question of law:

The question of law in the case was whether the special leave petition challenging the order rejecting review petition is maintainable when the main judgment of the High Court is not under challenge.

Contentions:

Learned counsel for the petitioner challenging the order on the review submits that earlier dismissal of the special leave petition on 21.08.2015 shall not operate as res judicata. He further submits that the petitioner was dismissed on petty charges due to political vendetta. He further contends that Cooperative Arbitration Court, which has imposed punishment of reduction in rank was wrongly substituted by compulsory retirement by the Cooperative Tribunal. Learned counsel for the petitioner has also referred to judgment of this Court in Kunhayammed and Ors. Vs. State of Kerala and Anr.

Judgment:

The Hon’ble Court while appreciating and referring to Para 8 and Para 9 of the judgment of the Kerala High Court dated 06.02.2020 noted the following:

The Division Bench of the High Court by the impugned judgment dated 06.02.2020 has not dismissed the review petition as not maintainable. The High Court proceeded to meticulously examine the question and after consideration came to the conclusion that there is no mistake or omission amounting to error apparent on the face of the record.

The court while explaining how the special leave petition challenging the order rejecting review petition is not maintainable, referred to its judgment in Municipal Corporation of Delhi v. Yashwant Singh Negi and Bussa Overseas and Properties Private Limited and Anr. Vs. Union of India and Anr., held the following:

15. The rationale for not entertaining a special leave petition challenging the order of High Court rejecting the review petition when main order in the writ petition is not challenged can be easily comprehended. Against the main judgment the SLP having been dismissed earlier the same having become final between the parties cannot be allowed to be affected at the instance of petitioner. When the main judgment of the High Court cannot be effected in any manner, no relief can be granted by this Court in the special leave petition filed against order rejecting review application to review the main judgment of the High Court. This Court does not entertain a special leave petition in which no relief can be granted. It is due to this reason that this Court in Bussa Overseas and Properties Private Limited and Anr. (supra) has held that principle of not entertaining special leave petition against an order rejecting the review petition when main judgment is not under challenge has become a precedential principle. We reiterate the above precedential principle in this case again.

Subsequently, the court held,

The special leave petition against the Division Bench judgment dated 11.03.2015 having been dismissed by this Court earlier on 21.08.2015 and the review petition filed by the petitioner to review the judgment having been dismissed by the impugned judgment, we see no reason to entertain this special leave petition. The special leave petition is accordingly dismissed.

Kalidharun K M

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