Partly allowed

Khetri Tamba Shramik Sangh v. Hindustan Copper Limited

Rajasthan HC5 May 2023SAW/913/2021

Case brief

AI extract

What is this about?

This High Court allowed a special appeal to quash an order passed in a review petition. The learned Single Judge had modified a prior order granting promotional benefits based on a consent settlement between parties. The Court held that an order based on consent cannot constitute an 'error apparent on the face of the record' warranting review.

What did the court decide?

Quashed the order dated 04.08.2021 passed in S.B. Civil Review (Writ) Petition No.281/2019 and upheld the order dated 27.08.2018 passed in S.B. Civil Writ Petition No.8661/2018.

Khetri Tamba Shramik Sangh Vs Hindustan Copper… — Service and Employment | Rajasthan HC (2023)

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[2023/RJJP/012556]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Special Appeal Writ No. 913/2021

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Khetri Tamba Shramik Sangh, Khetri Nagar, Jhunjhunu, (Rajasthan) Through Its Secretary.

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----Appellant

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Versus

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Hindustan Copper Limited, C/o Khetri Copper Complex Through Chief Manager Law, HCL, Khetri Copper Complex, Khetri Nagar, Jhunjhunu Through Its Manager (HR) Shri Pramod Kumar Authorized Signatory.

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----Respondent

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For Appellant(s) : Mr. Kunal Kant Rawat, Advocate For Respondent(s) : Mr. A.K. Bhandari, Sr. Advocate with Mr. Atul Bhardwaj, Advocate

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HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE GANESH RAM MEENA

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Judgment

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05/05/2023

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(Per: Ganesh Ram Meena, J)

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The instant special appeal (writ) has been filed by the appellant/ respondent assailing the order dated 04.08.2021 passed by the learned Single Judge in S.B. Civil Review (Writ) Petition No.281/2019 whereby modified the order passed on 27.08.2018 in S.B. Civil Writ Petition No.8661/2018.

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The facts relevant for consideration are that the appellant- Khetri Tamba Shramik Sangh (for short ‘the appellant-Sangh’) raised a dispute before the authorities of

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the Labour Department for its member Mr. P.S. Parmar, which was referred to the Central Industrial Tribunal, Jaipur (for short ‘the Industrial Tribunal’) vide reference dated 21.01.1997 in the following terms:-

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“ Whether the action of the management of Khetri Copper Complex, Hindustan Copper Ltd.- Khetri Nagar, Dist. Jhunjhunu in not promoting Shri P.S. Parmar, Sr. Draftsman (Geology) to the post of Asst. Engineer (Design)/Chief Draftsman (now renamed as Sr. Geologist (Design) is justified? If not, to what relief the workman is entitled to?”

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The statement of claim was filed by the appellant Sangh on 04.03.1997 and the reply to the statement of claim was filed by the respondent /petitioner. The learned Industrial Tribunal considering the material available on the record passed an award on 13.02.2017 in the following terms:-

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^^fgUnqLrku dkWij fyfeVsM] [ksrM+h dkWij dkWEiysDl] [ksrM+h uxj] ftyk&>qa>quw }kjk izkFkhZ Jfed Jh ih-,l- ijekj dks lhfu;j MªkQVeSu ¼th;ksyksth½ ds in ls vflLVsaV bathfu;j ¼fMtkbZu½@eq[; MªkQVeSu ftldk orZeku inuke lhfu;j th;ksyksftLV fMtkbZu ds in ij inksUUkr ugha fd;k tkuk mfpr ,oa oS/k ugha gSA izkFkhZ Jfed Jh ih-,l- ijekj lhfu;j MªkQVeSu ¼th;ksyksth½ ds in ls vfLkLVsaV bathfu;j ¼fMtkbZu½@eq[; MªkQVeSu ftldk orZeku inuke lhfu;j th;ksyksftLV fMtkbZu ds in ij inksUUkfr izkIRk djus ds gdnkj gSa rFkk blh in dk lsok&ifjykHk Hkh fnukad 03-05-1985 ls ikus dk gdnkj gSA^^

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The respondent/petitioner challenged the award dated 13.02.2017 by filing S.B. Civil Writ Petition No.8661/2018. The said writ petition was disposed of by the learned Single Judge vide its order dated 27.08.2018 and modified the award by passing the order as under:-

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“ This Court in view of above submissions made by the employer regarding recommendation in favour of the respondent- employee for the post of Assistant Engineer (Design), deems it proper to modify the award passed by the Industrial Tribunal. The petitioner- employer is directed to give effect to the recommendation of DPC held on 21.11.1991 by conferring the benefit on the respondent-employee of promotion on the post of Senior Geologist (Design) from the date of DPC meeting dt. 21.11.1991 and give him all the consequential benefits till he sought voluntary retirement in relation the VRS of the company on 31.07.2001. The employer would not deduct the amount which has already been paid to the respondent-employee on the post which was held by him till he sought voluntary retirement and difference of pay and other benefits, as admissible on the said promoted post, will be released to the employee by employer within a period of seven weeks.”

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The respondent/ petitioner then preferred review petition and the learned Single Judge vide order dated 04.08.2021 modified the order dated 27.08.2018 as under:-

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“Accordingly, this Court modifies the order passed on 27.08.2018 only to the extent that at page 3 in the last para, fifth line from the bottom, the words “post of Senior Geologist (Design) shall be read as “post of Assistant Engineer (Geology-Design).”

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Counsel appearing for the appellant / respondent submits that the learned Single Judge has exceeded its jurisdiction while passing the order on the review petition modifying the order dated 27.08.2018 because there was no error apparent on the face of record which was required to be considered in the review petition by the learned Single Judge. Counsel further submits that the order dated 27.08.2018 was passed on the consent of the counsels on the instructions of

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both the parties. Counsel submits that any direction or order issued on the consent of the parties cannot be said to be an error apparent on the face of the record to be rectified on the review petition.

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Mr. A.K. Bhandari, Senior Advocate with Mr. Atul Bhardwaj, counsel appearing for the respondent /petitioner submits that the order on the review petition is just and proper because the appellant/ respondent is not entitled for promotion to the post of Senior Geologist (Design) and there was an error apparent on the face of record in the judgment dated 27.08.2018 because the DPC recommended only for promotion of the workman Mr. P.S. Parmar to the post of Assistant Engineer (Design), and therefore, an inadvertent error was committed by the learned Single Judge while disposing of the writ petition allowing promotion to the workman Mr. P.S. Parmar on the post of Senior Geologist (Design) w.e.f. 1991. He also submits that the said error was rightly rectified while deciding the review petition.

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Considered the submissions made by the counsels appearing for the respective parties and perused the available record.

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The industrial dispute was raised and reference was made to the Industrial Tribunal “Whether the action of the management of Khetri Copper Complex, Hindustan Copper Ltd.- Khetri Nagar, Dist. Jhunjhunu in not promoting Shri P.S.

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Parmar, Sr. Draftsman (Geology) to the post of Asstt. Engineer (Design/ Chief Draftsman) (now renamed as Sr. Geologist (Design) is justified? If not to what relief the workman is entitled to?

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In the statement of claim it was specifically stated that Shri P.S. Parmar is in service since 1964 and as per the Recruitment and Promotion Rules, 1972 (for short ‘the Rules of 1972’) as applicable, the next promotion post for Senior Geologist (Design) is Assistant engineer (Design) / Chief Draftsman in Class-I cadre. It was further stated in the statement of claim that by order dated 03.05.1985 Mr. P.S. Parmar was malafide and illegally promoted to the post of Foreman in-stead of Assistant Engineer (Design), though there was no such post existing and therefore, Sh. P.S. Parmar protested and represented against the order dated 03.05.1985. In the statement of claim it was claimed that Shri P.S. Parmar is entitled to promotion on the post of Assistant Engineer (Design)/ Chief Draftsman w.e.f. 17.05.1984 [now renamed as Senior Geologist (Design)]. The respondent/ petitioner submitted reply to the written statement stating that the order of promotion dated 03.05.1985 was just and proper and Mr. P.S. Parmar is not entitled for any relief.

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The learned Industrial Tribunal considering the material and the evidences placed before it, passed the award

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in favour of appellant/respondent holding that the workman Mr. P.S. Parmar is entitled for promotion on the post of Assistant Engineer (Design)/ Chief Draftsman (renamed as Senior Geologist (Design) w.e.f. 03.05.1985. During the course of hearing of the writ petition filed by the respondent /petitioner challenging the award of the Central Industrial Tribunal, the counsel appearing for the respondent /petitioner sought time to seek instructions with regard to consideration of the case of the workman /appellant for promotion against the vacancies of the year 1991 for the post of Assistant Engineer (Design) which now has been renamed as Senior Geologist (Design).

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Counsel appearing for the appellant / respondent on instructions submits that since the workman has already sought voluntary retirement under VRS of the Company on 31.07.2001, he may be conferred benefit on the post of Senior Geologist (Design) from the year 1991 at-least, though in the statement of claim he was seeking promotion w.e.f. 1985. It was also submitted on behalf of the appellant/ respondent that in case the award is modified to the extent of granting benefit w.e.f. 1991 on the post of Senior Geologist (Design), the employee is ready to accept the consequential benefits which flow from the promotion of Assistant Engineer (Design) from the year 1991 till his voluntary retirement. In view of the submissions of both the counsels for the

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respective parties, the learned Single Judge disposed of the writ petition modifying the order of the Industrial Tribunal and ordered that the petitioner- employer is directed to give effect to the recommendation of DPC held on 21.11.1991 by conferring the benefit on the respondent- employee of promotion on the post of Senior Geologist (Design) from the date of DPC meeting dated 21.11.1991 and give him all the consequential benefits till he sought voluntary retirement under VRS of the Company on 31.07.2001.

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Since the learned Single Judge disposed of the writ petition after considering the submissions of the counsels appearing for the respective parties and considering the consent of the appellant / respondent that in place of year 1985, he is ready to accept the benefits w.e.f. 1991 and so also the statement of the counsel appearing for the respondent/ petitioner that during the pendency of the dispute before the Industrial Tribunal, they had considered the case of workman Mr. P.S. Parmar for promotion from the post of Senior Draftsman to the post of Assistant Engineer (Design)/ Chief Draftsman (now re-named as Senior Geologist (Design) in the meeting of DPC held on 21.11.1991. 14. The order based on consent of the parties, cannot be said to be an error apparent on the face of the record, which could be rectified on a review petition.

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The Hon’ble Supreme Court in Kamlesh Verma

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Vs. Mayawati and Others, reported in (2013) 8 SCC 320

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has observed in paragraphs No. 16, 20, 20.1 and 20.2 as under:-

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“(16) Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. The power of review can be exercised for correction of a mistake but not to substitute a view. The mere possibility of two views on the subject is not a ground for review. This Court, in Lily Thomas & Ors. vs. Union of India & Ors., (2000) 6 SCC 224, held as under:

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“54. Article 137 empowers this Court to review its judgments subject to the provisions of any law made by Parliament or any rules made under Article 145 of the Constitution. The Supreme Court Rules made in exercise of the powers under Article 145 of the Constitution prescribe that in civil cases, review lies on any of the grounds specified in Order 47 Rule 1 of the Code of Civil Procedure which provides:

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‘ 1. Application for review of judgment. —(1) Any person considering himself aggrieved—

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(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or

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(c) by a decision on a reference from a Court of Small Causes,

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and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order.”

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Under Order 40 Rule 1 of the Supreme Court Rules 11 no review lies except on the ground of error apparent on the face of the record in criminal cases. Order 40 Rule 5 of the Supreme Court Rules provides that after an application for review has been disposed of no further application shall be entertained in the same matter.

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56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment.

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58. Otherwise also no ground as envisaged under Order 40 of the Supreme Court Rules read with Order 47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the judgment in Sarla Mudgal case, (1995) 3 SCC 635. It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an 12 error which has to be fished out and

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searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting Section 494 amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words “any other sufficient reason appearing in Order 47 Rule 1 CPC” must mean “a reason sufficient on grounds at least analogous to those specified in the rule” as was held in Chhajju Ram v. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa v. T. Nagappa, AIR 1954 SC 440 this Court held that such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233, it was held: (AIR p.244, para 23)

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“… It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to suggest any clearcut rule by which the boundary between the two classes of errors could be demarcated.

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Mr Pathak for the first respondent contended on the strength of certain observations of Chagla, C.J. in — ‘Batuk K. Vyas v. Surat Borough Municipality, AIR 1953 Bom 133’ that no error could be said to be apparent on the face of the record if it was not self-evident and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-

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evident might not be so considered by another. The fact is that what is an error 13 apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.”

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Therefore, it can safely be held that the petitioners have not made out any case within the meaning of Article 137 read with Order XL of the Supreme Court Rules and Order 47 Rule 1 CPC for reviewing the judgment in Sarla Mudgal case. The petition is misconceived and bereft of any substance.”

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20 . Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

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20.1 When the review will be maintainable:-

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(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

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(ii) Mistake or error apparent on the face of the record;

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(iii) Any other sufficient reason.

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The words “any other sufficient reason” has been interpreted in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors., (1955) 1 SCR 520, to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The same principles have been reiterated in Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors., JT 2013 (8) SC 275. 16

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20.2 When the review will not be maintainable:-

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(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

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(ii) Minor mistakes of inconsequential import.

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(iii) Review proceedings cannot be equated with the original hearing of the case.

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(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

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(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.

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(vi) The mere possibility of two views on the subject cannot be a ground for review.

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(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

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(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

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(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.”

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The Hon’ble Apex Court in Union of India vs.

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Sandur Manganese and Iron Ores Limited & Ors.,

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reported in (2013) 8 SCC 337 has observed in para 23 as

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under:-

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“23. It has been time and again held that the power of review jurisdiction can be exercised for the correction of a mistake and not to substitute a view. In Parsion Devi & Ors. vs. Sumitri Devi & Ors., (1997) 8 SCC 715, this Court held as under:-

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“9. 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 I 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".

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In view of the discussion made above, we are of the opinion that the order / direction based on consent of the parties in the facts and circumstances of the present case cannot be said to be an error apparent on the face of record, and, therefore, the order of the learned Single Judge dated 04.08.2021 on the review petition modifying the order dated 27.08.2018 is not sustainable and deserves to be quashed and set aside.

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As a result, this special appeal (writ) is allowed and the order of the learned Single Judge dated 04.08.2021 passed in S.B. Civil Review (Writ) Petition No. 281/2019 is quashed and set aside and the order dated 27.08.2018 passed in S.B. Civil Writ Petition No.8661/2018 is upheld.

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Since the special appeal (writ) petition is allowed, the stay application and pending application/s, if any, also stand disposed of.

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(GANESH RAM MEENA), J. ( MANINDRA MOHAN SHRIVASTAVA), ACTING CJ

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Sharma NK/50

Khetri Tamba Shramik Sangh v. Hindustan Copper Limited

Case brief

What is this about?

What did the court decide?

Khetri Tamba Shramik Sangh v. Hindustan Copper Limited

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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