Review Application No.79 of 2008 is filed under Order 47 Rule 1 of the Code of Civil Procedure against the order dated 14.05.2008 in W.A.No.687 of 2007.
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!For Petitioners in all the petitions ... Mr.Vijay Narayan Senior Counsel for Mr.K.Jayaraman ^For Respondents in Rev.Appln.No.79/08 ... Mr.V.Prakash Senior Counsel for Ms.Lakshmi Gopinathan For Respondent 1 in other petitions ... Mr.G.R.Swaminathan Senior Counsel for Ms.Lakshmi Gopinathan For Secretary to Government, Ministry of Labour, New Delhi ... Mr.B.Vijay Karthikeyan, Central Government Counsel
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:COMMON ORDER (Order of the Court was made by F.M.IBRAHIM KALIFULLA, J.) These review applications have been preferred in respect of the common judgment dated 14.05.2008, passed in W.A.(MD) Nos.685 to 689 of 2007 and W.P.(MD) Nos.7657, 9711 to 9715 of 2006 & 9639 of 2007. The writ appeals were filed against the order of the learned Single Judge dated 12.10.2007, passed in W.P.Nos.8675 of 2006 etc. batch.
2. In all the writ petitions, the prayer was for the issuance of a writ of Mandamus as against the review petitioner company for a direction to appoint the writ petitioners in the permanent regular service of the review petitioner company in the various artisan posts. The writ petitioners were all Apprentices in different trades and worked as such under the review petitioner company under the provisions of the Apprentices Act, 1961. When the review petitioner company issued a Notification in March, 2007 calling for applications to fill up various posts in its factory, the writ petitioners came forward with the writ petitions contending that they were all trained as Apprentices of the Review Petitioner Company and were issued with National Trade Certificate for having underwent apprenticeship training and therefore they were entitled for regular appointment in the vacancies which were notified for appointment.
3. The learned Single Judge as well as the Division Bench by applying the provisions contained in Section 22 of the Apprentices Act, read along with paragraph 4.4 of the Recruitment Policy of the review petitioner's company held that absorption of artisan trainees in the various posts falling under skilled group A-III was inevitable and therefore in the absence of production of any of the contract of apprenticeship prohibiting such absorption by the review petitioner, it should be inferred that
Section 22(2) alone would be applicable and consequently the writ petitioners were entitled for a direction as prayed for. The Division Bench therefore confirmed the order of the learned Single Judge.
4. Reliance placed upon by the review petitioner on certain model Apprenticeship Contracts which were of the year 2007, which contains a clause that there was no obligation on the part of the employer to grant absorption was rejected by the Division Bench by holding that the said document came into existence only on 14.08.2008 and therefore, based on the said document the right of the writ petitioners cannot be rejected.
5. In these review petitions, the contention of the review petitioner company is that they were able to gather some of the contracts which pertains to the years 1978 -2001 and also a circular of the review petitioner dated 30.07.1973, as well as another circular dated 06.07.1981, wherein, it was specified that the records relating to the training programs of the Apprentices were to be preserved only for a period of three years and that such contracts specifically contain a clause by which the Apprentices concerned agreed that there was no guarantee for regular employment after the successful period of Apprenticeship.
6. By referring to the above said documents, Mr.Vijay Narayan, learned senior counsel appearing for the review petitioner company in his submissions contended that those apprenticeship agreements were all copies which were available in the office of the Regional Directorate of Apprenticeship Training and which agreements relate to the Apprentices who underwent apprenticeship training in the review petitioner company. The learned senior counsel contended that though they related to various other apprentices other than the writ petitioners, since such apprenticeship agreements were all related to the contemporaneous period during which most of the writ petitioners underwent apprenticeship training, the various terms contained in those agreements can be taken as one which were applicable even to the writ petitioners. So contending, the learned senior counsel submitted that such apprenticeship agreements now placed before the Court contains a specific clause in Clause No.5 to the effect that it was not obligatory on the part of the employer to offer any employment to the passed out trade apprentice on completion of the period of Apprenticeship Training in its establishment, nor shall it be obligatory on the part of the Apprentice to accept an employment under the employer, and the prevalence of the said clause, if applied to the writ petitioners, the case of the writ petitioners would fall squarely within Section 22(1) of the Apprenticeship Act and consequently the relief as granted by the learned Single Judge and as confirmed by the Division Bench could not have been granted.
7. The learned senior counsel also contended that by virtue of Section 114 of the Evidence Act, for drawing an inference, the requirement to be fulfilled would fall within the illustration 'g' of the said Section and in the light of the materials which the review petitioner is now able to place before this Court, the inference drawn by the Division Bench for applying
Section 22(2) of the Apprentices Act would automatically cease to operate and consequently the order under review is bound to be varied.
8. The learned senior counsel for the review petitioner company by relying upon paragraph 59 of the decision of the Hon'ble Supreme Court in Official Liquidator Vs. Dayanand and others reported in (2008) 10 SCC 1 contended that where the claim of the writ petitioners were based on the Apprenticeship training underwent by them between the years 1980-2001, it was wholly inappropriate for the Division Bench as well as the learned Single Judge to have directed the review petitioner company to appoint them without reference to the age qualification prescribed in the review petitioner's company. According to the learned senior counsel, as per the prescribed rules, maximum age limit is 27 years relaxable to an extent of three years for MBC and five years for SC & ST.
9. As against the above submissions, Mr.V.Prakash learned senior counsel representing some of the writ petitioners by relying upon the decisions in Harinagar Sugar Mills Ltd., Vs. State of Bihar (2006 (1) SCC 509), K.Alliammal Vs. The Special Tahsildar, Adi Dravidar Welfare Department, Tirupattur (2008-2- L.W.156) and R.Lakshmanan Vs. Mannarsami and others (2004 (4) M.L.J. 684) submitted that the scope of review being limited in nature, if the review petitioner's grievance are to be examined, it would result in rehearing of the whole case which is not permissible in law. According to the learned senior counsel, having regard to the scope of review of any order, the grievance of the review petitioner virtually would amount to rearguing the writ appeals and the writ petitions and therefore this Court should not interfere with the orders at the instance of the review petitioner.
10. Mr.G.R.Swaminathan, learned counsel appearing for some other writ petitioners by relying upon the decisions reported in (2006) 5 SCC 501 (Jain Studios Ltd. Vs. Shin Satellite Public Co. Ltd.) and (2007) 12 SCC 230 (Aloke Nath Dutta and others Vs. State of West Bengal) also contended that in a review petition the various grievance expressed by the review petitioner cannot be examined as that would amount to rehearing of the writ appeals as well as the writ petitions once over again which is not permissible in law. As far as the reliance placed upon a circular dated 06.07.1981, the learned counsel contended that by merely relying upon the said circular it cannot be taken that the review petitioner destroyed the Apprenticeship agreements of the writ petitioners in order to hold that the claims of the writ petitioners cannot be countenanced.
11. Having heard the respective counsel for the parties, at the outset, we wish to highlight the scope of review as set out in the various decisions. In the decision reported in (2006) 1 SCC 509 (Harinagar Sugar Mills Ltd. and another Vs. State of Bihar and another) the Hon'ble Supreme Court has stated the legal position as under in paragraph 12:
"12....Though the review may have been maintainable but the appellants could not be allowed to reagitate the points which had already been decided by the Court. The review could be granted only if there was a mistake apparent on the face of the record. We do not find any such apparent mistake on the face of the record. The High Court in its order dated 30.08.2001 had taken the view that the amount deposited in the Court by the appellants was in lieu of the market fee for the benefit of the Market Committee, and therefore the Market Committee was entitled to receive the same. Two views are possible on this point but the same cannot be a ground for reviewing the said order as it does not fall within the scope of review jurisdiction." (emphasis added). Two Division Bench decisions of this Court reported in 2008-2-L.W.156 (K.Alliammal Vs. The Special Tahsildar, Adi Dravidar Welfare Department, Tirupattur) and 2004 (4) M.L.J. 684 (R.Lakshmanan Vs. Mannarsami and others) have stated the position after referring to various decisions of the Hon'ble Supreme Court. In paragraph 8 of the order reported in 2008-2-L.W.156, the Division Bench has stated the legal position as under: "8. A much volume of a judicial interpretation has been gathered around the interpretation of the expression "apparent from the face on record" occurring in the above Section. The one uniform principle that runs through the catena of decisions is that "a mistake apparent on record" must be an obvious and apparent mistake and not something, which can be established by a long-drawn process of reasoning on points on which there may conceivably be two opinions. An error which is not self evident and is to be deducted by process of reasoning can hardly be said to be an error apparent on the face of the record." (emphasis added) In fact in one of the decisions of the Hon'ble Supreme Court relied upon by the said Division Bench viz., (2005) 6 SCC 651 (Kerala Seb Vs. Hitech Electrothermics & Hydropower Limited) the Hon'ble Supreme Court has stated the legal position in respect of review petition in paragraph 10 in the following words:
"10.....In a review it is not open to this Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record to permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise." (emphasis added) Similarly in another decision, the Hon'ble Supreme Court which was also relied upon by the Division Bench reported in 1998-1-L.W.106 (Parsion Devi Vs. Sumitra Devi) has held as under:
"Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise." (emphasis added)
12. The principles that can be deduced from the above decisions are:
(a) A review can be granted only if there was a mistake apparent on the face of the record.
(b) A mistake apparent on record must be an obvious and apparent mistake and not something which can be established by a long-drawn process of reasoning on points on which there may conceivably be two opinions.
(c) An error which is not self evident and is to be deducted by process of reasoning can hardly be said to be an error apparent on the face of the record.
(d) Even if two views are possible on the issue raised, that by itself cannot be a ground for reviewing the order as it does not fall within the scope of review jurisdiction.
(e) In a review, it is not open to the Court to re-appreciate the evidence and reach a different conclusion even if that is possible.
(f) If on appreciation of the evidence produced, the Court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto.
(g) In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be reheard and corrected.
(h) The expression 'exercise of due diligence used in Order 47 Rule 1 CPC should be an exercise which ought to have been made prior to the filing of the review and not one after the pronouncement of the order under review.
13. Keeping the above principles in mind when we examine the grievance of the review petitioner, we find that none of the grounds now raised by the review petitioners provides scope for entertaining these review petitions. First of all, there is no scope to hold that the present contention of the petitioners in these review petitions discloses any error apparent on the face of the record of the orders under review. On the other hand, the review petitioners by producing some new materials and by relying upon those materials wants this Court to re- appreciate the whole evidence and come to a different conclusion which is wholly impermissible in review jurisdiction.
14. It is also not the case of the review petitioners that whatever materials which is now been placed before this Court could not be traced prior to the passing of the impugned order under review in spite of due diligence on the part of the review petitioners.
15. As rightly contended by Mr.G.R.Swaminathan, learned counsel appearing for some of the respondents herein that even the documents which have now been placed before this Court are not related to any of the writ petitioners. By producing some contemporaneous agreements, which were unconnected to the writ petitioners, the review petitioners want to contend that an inference should be drawn based on those materials. If such a farfetched contention of the petitioners is to be entertained in a review petition, that would result in mockery of justice which can never be accepted. Moreover, any attempt to examine the merits of the claim of the review petitioners based on the materials now placed before the Court for reviewing the order dated 14.05.2008, would result in an exercise by way of a long drawn process of reasoning which is not permissible in exercise of review jurisdiction.
16. Moreover, even if a different view could be drawn; which is too remote to occur, that cannot be a ground for reviewing the order impugned herein. Therefore, we are convinced that the case of the review petitioners lacks merit in every respect, consequently the review petitions fail and the same are dismissed with costs of Rs.1000/- (Rupees one thousand only) in each of the review petitions, payable to the Tamil Nadu Meditation and Conciliation Center, Madurai Bench of Madras High Court, Madurai, within a period of four weeks from the date of receipt of a copy of this order. Consequently, the connected miscellaneous petitions are closed.
kk To The Secretary to Government, Ministry of Labour, New Delhi.