TK David v. Kuruppampady (2020) - SLP Against HC Order cannot be Entertained When Main Judgment is not Challenged

Most recently on October 5, 2020, a three Judge Bench of the Supreme Court comprising of Justice Ashok Bhushan, Justice R Subhash Reddy and Justice MR Shah in a latest, landmark, learned and laudable judgment titled TK David vs Kuruppampady Service Co-operative Bank Ltd in Special Leave Petition (C) No. 10482 of 2020 in exercise of its civil appellate jurisdiction has explicitly, elegantly and effectively held that a special leave petition (SLP) challenging the order of High Court rejecting the review petition cannot be entertained when main judgment in the writ petition is not challenged. It was observed that 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. Very rightly so!

To start with, this notable judgment authored by Justice Ashok Bhushan for himself, Justice R Subhash Reddy and Justice MR Shah sets the ball rolling by first and foremost observing in the introductory para 1 that, "This special leave to appeal has been filed against the Division 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.”

While mentioning in para 2 that, "Brief facts necessary to consider this special leave petition need to be noted”, it is then enumerated in para 3 that, "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 this Court, which was dismissed by order dated 21.08.2015, which is as follows:-

"Heard.

Delay condoned.

We do not see any merit in this special leave petition which is hereby dismissed.."

As a corollary, what follows next is then stated in para 4 that, "After dismissal of special leave petition, a Review Petition No. 1521 of 2016 was filed in this Court, which too 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 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.”

While presenting the petitioner’s version, the Bench then ably points out in para 5 that, "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., (2000) 6 SCC 359.”

Needless to say, the Bench then also makes it clear in para 6 that, "We have heard learned counsel for the petitioners and have perused the records.”

To put this in perspective, the Bench then mentions in para 7 that, "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 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 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 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……………………"

For the sake of clarity, it is then stipulated in para 8 that, "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. In paragraphs 8 and 9 of the judgment, High Court held:

"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 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].”

9. So there is no omission to consider the legality or correctness 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 the above findings, as the review is not an appeal in disguise. Hence, the review petition fails and is dismissed accordingly."

Most significantly, the cornerstone para of this noteworthy judgment – para 15 then minces no words in stating in simple, straight and suave language that, "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.”

Finally, it is then held in the last para 16 that, "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.”

To conclude, it needs no rocket scientist to conclude that the three-Judge Bench of the Apex Court has very rightly held in this notable judgment that SLP against High Court order rejecting review petition cannot be entertained when main judgment is not challenged. The Bench in this ruling made it a point to very rightly refer to two decisions titled Bussa Overseas and Properties Private Limited and Anr. Vs. Union of India and Anr., (2016) 4 SCC 696 and Municipal Corporation of Delhi Vs. Yashwant Singh Negi, (2013) 2 SCR 550 in which it was held categorically that such SLP is not maintainable. There can be no denying or disputing it!