T. K. DAVIDversusKURUPPAMPADY SERVICE CO-OPERATIVE BANK LTD. & ORS.

                          [2020] 13 S.C.R. 663                            663


                            T. K. DAVID                                   A
                                  v.
         KURUPPAMPADY SERVICE CO-OPERATIVE
                 BANK LTD. & ORS.
           (Special Leave Petition (C) No. 10482 of 2020)                 B
                        OCTOBER 05, 2020
      [ASHOK BHUSHAN, R. SUBHASH REDDY AND
                 M.R. SHAH, JJ.]
       Special Leave petition: Maintainability of – Petitioner filed
                                                                          C
writ petition before High Court challenging the order of compulsory
retirement – Writ petition was dismissed, writ appeal there against
was also dismissed and special leave petition was also dismissed by
the Supreme Court – Thereafter, petitioner filed review petition before
the High Court against the order passed in writ appeal which was
also dismissed by impugned order – Maintainability of special leave       D
petition against impugned order – Held: When the special leave
petition challenging the earlier judgment was already dismissed,
such dismissal became final between the parties – In this special
leave petition, the petitioner could not challenge the earlier order
against which he unsuccessfully earlier filed the special leave
                                                                          E
petition – When the main judgment of the High Court cannot be
effected in any manner, no relief can be granted in the special leave
petition filed against order rejecting review application to review
the main judgment of the High Court.
      Dismissing the Special Leave Petition, the Court
                                                                          F
       HELD: 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               G
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

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                                 663
664            SUPREME COURT REPORTS                         [2020] 13 S.C.R.


A     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. [Para 15][671-E-G]
            Municipal Corporation of Delhi v. Yashwant Singh Negi
            [2013] 2 SCR 550; Bussa Overseas and Properties
B           Private Limited and Anr. v. Union of India and Anr.,
            (2016) 4 SCC 696: [2016] 1 SCR 266 – relied on
            Kunhayammed and Ors. v. State of Kerala and Anr.
            (2000) 6 SCC 359: [2000] 1 Suppl. SCR 538 – referred
            to
C                             Case Law Reference
            [2000] 1 Suppl. SCR 538         referred to      Para 5
            [2013] 2 SCR 550                relied on        Para 11
            [2016] 1 SCR 266                relied on        Para 15
D
            CIVIL APPELLATE JURISDICTION : Petition for Special Leave
      to Appeal (C) No. 10482 OF 2020
            From the Judgment and Order dated 06.02.2020 of the High Court
      of Kerala at Ernakulum in R.P.(C) No. 805 of 2018 in WA(C) 399/2014.
E           Mathews J. Nedumpara, Rabin Majumder, Ms. Maria
      Nedumpara, Amrit Pal Singh, Ms. Akansha Srivastava, Advs. for the
      appearing parties.
            ASHOK BHUSHAN, J.
            1. This special leave to appeal has been filed against the Division
F     Bench judgment of the Kerala High Court dated 06.02.2020 rejecting
      the Review Petition No. 805 of 2018 filed by the petitioner in Writ Appeal
      No. 399 of 2014.
            2. Brief facts necessary to consider this special leave petition
      need to be noted.
G
             3. 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
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 T.K. DAVID v. KURUPPAMPADY SERVICE CO-OPERATIVE                              665
           BANK LTD. [ASHOK BHUSHAN, J.]

Cooperative Arbitration Court by order dated 18.08.2010 gave award            A
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     B
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      C
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 this Court, which was dismissed by order dated 21.08.2015,
which is as follows:-
                                                                              D
      “Heard.
      Delay condoned.
      We do not see any merit in this special leave petition which is
      hereby dismissed.”
        4. After dismissal of special leave petition, a Review Petition No.   E
1521 of 2016 was filed in this 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 this 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       F
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.
       5. 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     G
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., (2000) 6 SCC 359.                               H
666             SUPREME COURT REPORTS                          [2020] 13 S.C.R.


A           6. We have heard learned counsel for the petitioner and have
      perused the records.
             7. The earlier Special Leave Petition (C) No. 24231 of 2015 was
      filed by the petitioner challenging the Division Bench judgment dated
      11.03.2015 by which his Writ Appeal was dismissed. The Review Petition
B     No. 805 of 2018 giving rise to this special leave petition has been filed to
      review the judgment dated 11.03.2015 of the Division Bench. A review
      petition as well as curative petition was filed by the petitioner after
      dismissal of his earlier special leave petition. The judgment of this Court
      in Kunhayammed and Ors. Vs. State of Kerala and Anr. (supra)
      laid down that where the special leave petition is dismissed there being
C     no merger, the aggrieved party is not deprived of any statutory right of
      review, if it was available and he can pursue it. In paragraph 34, this
      Court made following observations:-
            “34. ................But where the special leave petition is dismissed
            — there being no merger, the aggrieved party is not deprived of
D           any statutory right of review, if it was available and he can pursue
            it. It may be that the review court may interfere, or it may not
            interfere depending upon the law and principles applicable to
            interference in the review..................”
             8. The Division Bench of the High Court by the impugned judgment
E     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.
      In paragraphs 8 and 9 of the judgment, High Court held:-
F           “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
G           aforesaid findings 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].
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 T.K. DAVID v. KURUPPAMPADY SERVICE CO-OPERATIVE                              667
           BANK LTD. [ASHOK BHUSHAN, J.]

      9. So there is no omission to consider the legality or correctness      A
      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 Court in the decisions
      referred above, this Court is not inclined to rehear or reconsider      B
      the above findings, as the review is not an appeal in disguise.
      Hence, the review petition fails and is dismissed accordingly.”
      9. The review petition filed by the petitioner, thus, was rejected on
merits.
                                                                              C
       10. The first question, which need to be considered is as to whether
the present special leave petition challenging the above review order
dated 06.02.2020 is maintainable when the Division Bench judgment
dated 11.03.2015 has neither been challenged nor can be challenged in
this special leave petition. The consequence of the rejection of the review
petition is that the High Court has refused to review the judgment of the     D
Division Bench dated 11.03.2015 passed in Writ Appeal No. 399 of 2014.
As noted above, the Division Bench judgement dated 11.03.2015 was
questioned by petitioner by special leave petition in this Court, which
was dismissed on 21.08.2015. When the Special Leave Petition No.
24231 of 2015 challenging the earlier judgment has already been dismissed,
                                                                              E
such dismissal has become final between the parties. In this special
leave petition, the petitioner cannot challenge the earlier order dated
11.03.2015 against which he unsuccessfully has earlier filed the special
leave petition. When the order dated 11.03.2015 is unassailable by the
petitioner in this special leave petition, no relief can be granted to
petitioner, which may have effect in any manner diluting, modifying or        F
reversing the earlier judgment dated 11.03.2015.
       11. This Court had earlier considered the question as to 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. We may refer to judgment of this Court in Municipal                G
Corporation of Delhi Vs. Yashwant Singh Negi, (2013) 2 SCR 550.
In the above case, a special leave petition was preferred against an
order rejecting the review petition. A preliminary objection was raised
that special leave petition is not maintainable since the main judgment is
not challenged. In paragraph 1 of the judgment, facts have been noticed,
which are to the following effect:-                                           H
668            SUPREME COURT REPORTS                           [2020] 13 S.C.R.


A           “1. This special leave petition has been preferred against the order
            dated 11.09.2009 passed by the High Court of Delhi in Review
            Petition No. 79 of 2009 in LPA No. 1233 of 2006. Mr. Nidhesh
            Gupta, learned senior counsel appearing for the Respondent raised
            a preliminary objection that the special leave petition is not
            maintainable since the main judgment rendered by the High Court
B
            on 5.11.2008 in LPA No. 1233 of 2006 was not challenged.”
             12. This Court after considering the earlier judgment of this Court
      held that special leave petition is not maintainable. In paragraphs 3 and 4
      following was laid down:-
C           “3. We find ourselves unable to agree with the views expressed
            by this Court in Eastern Coalfields Limited (supra). In our view,
            once the High Court has refused to entertain the review petition
            and the same was dismissed confirming the main order, there is
            no question of any merger and the aggrieved person has to
            challenge the main order and not the order dismissing the review
D           petition because on the dismissal of the review petition the principle
            of merger does not apply. In this connection reference may be
            made to the Judgment of this Court in Manohar S/o Shankar
            Nale v. Jaipalsing S/o Shivlalsing Rajput (2008) 1 SCC
            520 wherein this Court has taken the view that once the review
E           petition is dismissed the doctrine of merger will have no application
            whatsoever. This Court in DSR Steel (Private) Limited v. State
            of Rajasthan (2012) 6 SCC 782 also examined the various
            situations which might arise in relation to the orders passed in
            review petitions. Reference to paragraphs 25, 25.1, 25.2 and 25.3
            is made, which are extracted below for ready reference:
F
                “25. Different situations may arise in relation to review petitions
                filed before a court or tribunal.
                25.1. One of the situations could be where the review
                application is allowed, the decree or order passed by the court
G               or tribunal is vacated and the [pic]appeal/proceedings in which
                the same is made are reheard and a fresh decree or order
                passed in the same. It is manifest that in such a situation the
                subsequent decree alone is appealable not because it is an
                order in review but because it is a decree that is passed in a
                proceeding after the earlier decree passed in the very same
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T.K. DAVID v. KURUPPAMPADY SERVICE CO-OPERATIVE                            669
          BANK LTD. [ASHOK BHUSHAN, J.]

      proceedings has been vacated by the court hearing the review         A
      petition.
      25.2. The second situation that one can conceive of is where a
      court or tribunal makes an order in a review petition by which
      the review petition is allowed and the decree/order under review
      is reversed or modified. Such an order shall then be a composite     B
      order whereby the court not only vacates the earlier decree or
      order but simultaneous with such vacation of the earlier decree
      or order, passes another decree or order or modifies the one
      made earlier. The decree so vacated reversed or modified is
      then the decree that is effective for the purposes of a further
      appeal, if any, maintainable under law.                              C

      25.3. The third situation with which we are concerned in the
      instant case is where the revision petition is filed before the
      Tribunal but the Tribunal refuses to interfere with the decree
      or order earlier made. It simply dismisses the review petition.
      The decree in such a case suffers neither any reversal nor an        D
      alteration or modification. It is an order by which the review
      petition is dismissed thereby affirming the decree or order. In
      such a contingency there is no question of any merger and
      anyone aggrieved by the decree or order of the Tribunal or
      court shall have to challenge within the time stipulated by law,     E
      the original decree and not the order dismissing the review
      petition. Time taken by a party in diligently pursing the remedy
      by way of review may in appropriate cases be excluded from
      consideration while condoning the delay in the filing of the
      appeal, but such exclusion or condonation would not imply that
      there is a merger of the original decree and the order dismissing    F
      the review petition.”
   4. We are in complete agreement with the principle laid down by
   this Court in DSR Steel (Private) Limited (supra) and applying
   the 3rd situation referred to therein in paragraph 25.3, we are
   inclined to dismiss this special leave petition. We find force in the   G
   contention made by the learned senior counsel appearing for the
   respondent that this SLP is not maintainable, since the main order
   was not challenged but only the order passed in the review petition
   alone was challenged in this SLP. Hence, the SLP is, therefore,
   not maintainable and the same is dismissed.                             H
670             SUPREME COURT REPORTS                           [2020] 13 S.C.R.


A           13. We may also notice another elaborate judgment of this Court
      in Bussa Overseas and Properties Private Limited and Anr. Vs.
      Union of India and Anr., (2016) 4 SCC 696. In the above case also
      special leave petition was filed against the Division Bench judgment of
      the High Court rejecting the review petition. Facts have been noticed in
      paragraph 1, which is to the following effect:-
B
            “...............The present appeal is directed against the judgment
            and order dated 14-9-2004 passed by the Division Bench of the
            High Court of Judicature at Bombay in Bussa Overseas &
            Properties (P) Ltd. v. Union of India [Notice of Motion No. 62
            of 2004, decided on 14-9-2004 (Bom)] whereby the High Court
C           while dealing with an application of review has declined to condone
            the delay of 129 days in preferring the application for review and
            also opined that the application for review was totally devoid of
            merit. The expression of the said view led to dismissal of the
            application for review.”
D            14. In the above case, this Court noticed several earlier judgments
      and accepting the preliminary objection held that the special leave petition
      is not maintainable. Following was held in paragraphs 29 to 32:-
            “29. Needless to state that when the prayer for review is dismissed,
            there can be no merger. If the order passed in review recalls the
E           main order and a different order is passed, definitely the main
            order does not exist. In that event, there is no need to challenge
            the main order, for it is the order in review that affects the aggrieved
            party.
            30. The decisions pertaining to maintainability of special leave
F           petition or for that matter appeal have to be seemly understood.
            Though in the decision in Shanker Motiram Nale [Shanker
            Motiram Nale v. Shiolalsing Gannusing Rajput, (1994) 2 SCC
            753] the two-Judge Bench referred to Order 47 Rule 7 of the
            Code of Civil Procedure that bars an appeal against the order of
G           the court rejecting the review, it is not to be understood that the
            Court has curtailed the plenary jurisdiction under Article 136 of
            the Constitution by taking recourse to the provisions in the Code
            of Civil Procedure. It has to be understood that the Court has
            evolved and formulated a principle that if the basic judgment is
            not assailed and the challenge is only to the order passed in review,
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 T.K. DAVID v. KURUPPAMPADY SERVICE CO-OPERATIVE                              671
           BANK LTD. [ASHOK BHUSHAN, J.]

      this Court is obliged not to entertain such special leave petition.     A
      The said principle has gained the authoritative status and has been
      treated as a precedential principle for more than two decades and
      we are disposed to think that there is hardly any necessity not to
      be guided by the said precedent.
      31. In this context, we may profitably reproduce a passage              B
      from State of A.P. v. A.P. Jaiswal [(2001) 1 SCC 748] wherein a
      three-Judge Bench has observed thus: (SCC p. 761, para 24)
          “24. Consistency is the cornerstone of the administration of
          justice. It is consistency which creates confidence in the system
          and this consistency can never be achieved without respect to       C
          the rule of finality. It is with a view to achieve consistency in
          judicial pronouncements, the courts have evolved the rule of
          precedents, principle of stare decisis, etc. These rules and
          principle are based on public policy….”
      32. In view of the aforesaid analysis, the submission of Mr. Gulati     D
      that all the subsequent judgments are per incuriam as they have
      not taken into consideration the decision rendered
      in Thungabhadra Industries Ltd. [Thungabhadra Industries
      Ltd. v. State of A.P., AIR 1964 SC 1372 : (1964) 5 SCR 174] is
      not correct. Consequently, the appeal, being not maintainable,
      stands dismissed. There shall be no order as to costs.”                 E

       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            F
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         G
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.                                    H
672              SUPREME COURT REPORTS                        [2020] 13 S.C.R.


A            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.
B



      Devika Gujral                                  Special Leave Petition dismissed


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