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The President, SLM.HSG 75, Dharapuram Taluk Co-operative Housing Society, Tiruppur v/s P. Balasubramanian & Another

    Review Application No. 77 of 2018 & Cont.P. No. 3131 of 2016

    Decided On, 22 June 2018

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE R. SUBBIAH

    For the Petitioner: S. Seenivasagam, S. Kadarkarai, Advocates. For the Respondents: R1, R. Krishanamoorthy, R2, L.P. Shanmugasundaram, Spl GP (Co-op).



Judgment Text

(Prayer: Review Application has been filed under Order 47 Rule 1 & 2 of CPC read with Section 114 of CPC seeking to review the order dated 03.10.2016 in W.P.No.37792 of 2015 passed by this Court.)

1. This Review Application has been filed seeking to review the order dated 03.10.2016 passed by this Court in W.P.No.37792 of 2015.

2. The 1st respondent herein had filed the writ petition in W.P.No.37792 of 2015 seeking for a mandamus directing the review applicant and the 2nd respondent to pay the terminal benefits of the 1st respondent herein/writ petitioner amounting to Rs.15,35,000/- along with interest at the rate of 12% per annum from 30.09.2012 till the date of payment.

3. This Court, after hearing both sides, following the decision of the Hon'ble Supreme Court in the case of D.D.Tewari (dead) through Legal Representatives Vs. Uttar Haryana Bijli Vitran Nigam Ltd and others reported in (2014) 8 SCC 894 and also the decision in S.K.Dua Vs. State of haryana and another reported in (2008) 3 SCC 44, has directed the review applicant and the 2nd respondent herein to pay the terminal benefits with 9% interest in ten installments. The relevant portions in the said order read as follows-

"8. In support of this contention, the learned counsel for the petitioner relied upon the decision of the Hon'ble Apex Court in (2014) 8 Supreme Court Cases 894 in D.D.Tewari (Dead) through Legal Representatives Vs. Uttar Haryana Bijli Vitran Nigam Limited and others, wherein it has been held that denial of interest from date of entitlement till date of p

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ayment has resulted in miscarriage of justice and paragraph Nos.6 to 8 of the order reads as under:-

"6. It is an undisputed fact that the appellant retired from service on attaining the age of superannuation on 31.10.2006 and the order of the learned Single Judge after adverting to the relevant facts and the legal position has given a direction to the respondent employer to pay the erroneously whithheld pensionary benefits and the gratuity amount to the legal representatives of the deceased employee without awarding interest for which the appellant is legally entitled, therefore, this Court has to exercise its appellate jurisdiction as there is a miscarriage of justice in denying the interest to be paid or payable by the employer from the date of the entitlement of the deceased employee till the date of payment as per the aforesaid legal principle laid down by this Court in the judgment referred to supra. We have to award interest at the rate of 9% per annum both on the amount of pension due and the gratuity amount which are to be paid by the respondent.

7. It is needless to mention that the respondents have erroneously withheld payment of gratuity amount for which the appellants herein are entitled in law for payment of penal amount on the delayed payment of gratuity under the provisions of the Payment of Gratuity Act, 1972. Having regard to the facts and circumstances of the case, We do not propose to do that in the case in hand.

8. For the reasons stated above, We award interest at the rate of 9% on the delayed payment of pension and gratuity amount from the date of entitlement till the date of actual payment. If this amount is not paid within six weeks from the date of receipt of a copy of this order, the same shall carry interest at the rate of 18% per annum from the date of the amount falls due to the deceased employee. With the above directions, this appeal is allowed."

9. He has also relied upon the decision of the Hon'ble Apex Court in (2008) 3 Supreme Court Cases 44 in S.K.Dua Vs. State of Haryana and another, wherein paragraph 14 of the orders reads as under:

"14. In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well founded that he would be entitled to interest on such benefits. If there are statutory rules occupying the filed, the appellant could claim payment of interest relying on such rules. If there are administrative instructions, guidelines or norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in the absence of statutory rules, administrative instructions or guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. The submission of the learned counsel for the appellant that retiral benefits are not in the nature of "bounty" is, in our opinion, well founded and needs no authority in support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents."

10. Learned counsel for the second respondent has filed the counter stating that the second respondent has admitted the claim of the petitioner. But due to cumulative loss to the tune of Rs.217.36 lakhs for the past 10 years, the Society is unable to settle the terminal benefits. It has further stated that the petitioner made a representation before the second respondent dated 27.10.2015 and the same was disposed by the second respondent on 06.11.2015 and hence the question of Mandamus to dispose of the representation dated 27.10.2015 does not arise. If at all the petitioner is aggrieved by the said order, he may file revision under Section 153 of the Act before the Registrar of Co-operative Societies (Housing) Chennai.

11. In my considered opinion, since the respondents admitted their liability to pay the terminal benefits of Rs.15,35,000/- to the petitioner, there is no need for this Court to direct the petitioner to file a revision before the Registrar of Co-operative Societies (Housing). Hence, by keeping the dictum laid down in the above judgment by the Hon'ble Supreme Court of India, this Court direct the respondents to pay the terminal benefits at 9% interest, since the petitioner is entitled for interest for belated payment. Since it is represented by the learned counsel for the respondents that the Society is not in a position to pay the entire terminal benefits as single payment due to its cumulative loss, the respondents are permitted to pay the terminal benefits with 9% interest in ten installments commencing from 01.11.2016."

Now, the present review application has been filed seeking to review the above said order passed by this Court.

4. The learned counsel for the Review Applicant submitted that this Court has committed a gross omission in applying the decision of the Larger Bench of five Judges of this Court in Marappan Vs. The Deputy Registrar of Co-operative Societies [2006 (4) CTC 869], wherein it has been held that no writ will lie against a co-operative institution as it is neither a 'State' nor 'Instrumentality of State Government' nor discharing a 'public duty' and the writ petition ought to have been rejected ex-facie. Further, the dispute between the 1st respondent/writ petitioner and the review applicant herein is a 'master and servant relationship' and if there were any dispute with regard to the payment of terminal benefits as sought for by the 1st respondent, it would be an 'industrial dispute' coming well under the ambit of Section 2(k) of the Industrial Disputes Act. If it were a claim arising out of the terms of employment, the same has to be preferred under Section 33-C(2) of the Industrial Disputes Act. The 1st respondent/writ petitioner ought to have either approached the Forum under the Industrial Disputes Act or got resolved the issue under the Common law if he were not governed by the Industrial Disputes Act. At any rate, the 1st respondent/writ petitioner cannot invoke Article 226 of the Constitution of India. The learned counsel for the Review Applicant would submit that these aspects were not considered by this Court while passing the order dated 03.10.2016 in W.P.No.37792 of 2015. In this regard, the learned counsel for the Review Application has also relied upon the decision reported in (2005 (3) LLN 1063) [Binny Ltd Vs. Sadasivam), wherein the Hon'ble Supreme Court has held as follows-

"Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not a state within the meaning of Article 12 of the Constitution and such a body is amenable to the jurisdiction under Article 226 of the Constitution and the High Court under Article 226 of the Constitution can exercise judicial review of the action challenged by a party. But there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties. The remedy available to the respondents is to seek redressal of their grievance in civil law or under the labour law enactments especially in view of the disputed questions involved as regard to status of employees and other matters."

Thus, by relying upon the above decision, the learned counsel for the Review Applicant sought for reviewing the order passed by this Court.

5. Heard the learned counsel for the 1st respondent also and perused the perused the materials available on record.

6. It is the main contention of the learned counsel for the review applicant that the writ petition itself is not maintainable, but without considering this aspect, this Court has given a direction as stated supra. But, this Court is of the opinion that this Court has passed the order based on the admission made by the review applicant and the 2nd respondent herein with regard to their liability to pay the terminal benefits to the writ petitioner. Absolutely, I do not find any valid ground to review the said order passed this Court.

7. Further, it is well settled legal position that a Review Application cannot be entertained to re-argue the grounds which were already agitated. A review is permissible only if it is shown that there is an error apparent on the face of the record or certain vital points which were agitated have not been considered in the order which is sought to be reviewed. In the present case, the review Applicant has not satisfied the above said two aspects. In this context, useful reference can be made to the decision of the Honourable Supreme Court in the case of (Kamlesh Verma vs. Mayawati and others) reported in (2013) 8 SCC 320 wherein the Honourable Supreme Court, after examining various judgments has laid down the circumstances, as to when the Court can review its own judgments. The relevant portion of the judgment is extracted as under:

"12. This Court has repeatedly held in various Judgments that the jurisdiction and scope of review is not that of an appeal and it can be entertained only there is an error apparent on the face of record. A mere repetition through different counsel, of old and overrulled arguments, a second trip over ineffectually covered grounds or minor mistakes of inconsequential import are obviously insufficient......."

... ... ...

"19. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XL VII Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the Judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned Judgment in the guise that an alternative view is possible under the review jurisdiction."

8. One another aspect I have noticed is that the present review application has been filed by a counsel, other than the one who has appeared in the writ petition, on behalf of the review applicant herein. A review application can be entertained only if it is filed by the counsel who appeared in the case or who argued the case, which is sought to be reviewed. In this context, reference can be made to the decision of the Honourable Supreme Court in the case of (M. Poornachandran and another vs. State of Tamil Nadu and others) reported in 1997 (2) Law Weekly 326 (I) wherein it was held as follows:-

The record of the appeal indicates that Shri. Sudarsh Menon was the advocate-on-Record when the appeal was heard and decided on merits. The Review petition has been filed by Shri. Prabir Chowdhary, who was neither an arguing counsel when the appeal was heard nor was he present at the time of argument. It is unknown on what basis he has written the grounds in the Review Petition as if it is a rehearing of an appeal against our order. He did not confine to the scope of review. It would not in the interest of the profession to permit such practice. That apart, he has not obtained 'No objection Certificate' from the Advocate-on-Record in the appeal, inspite of the fact that Registry had informed him of the requirement for doing so. Filing of the No Objection Certificate would be the basis for him to come on record. Otherwise, the Advocate-on-Record is answerable to the Court. The failure to obtain the 'No Objection Certificate' from the erstwhile counsel has disentitled him to file the Review Petition. Even otherwise, the Review Petition has no merits. It is an attempt to re-argue the matter.

On those grounds, we dismiss the Review Petition.

9. In yet another decision rendered by the Honourable Supreme Court in the case of (Tamil Nadu Electricity Board and another vs. N. Raju Reddiar and another) reported in CDJ 1996 SC 761, it was held as follows:-

1. It is a sad spectacle that a new practice unbecoming and not worth of or conducive to the profession is cropping up. Mr. Mariarputham, Advocate-on-Record had filed vakalatnama for the petitioner-respondent when the special leave petition was filed. After the matter was disposed of, Mr. V. Balachandran, Advocate had filed a petition for review. That was also dismissed by this Court on 24-04-1996. Yet another advocate, Mr. S.U.K. Sagar has now been engaged to file the present application styled as 'application for clarification' on the specious plea that the order is not clear and unambiguous. When an appeal/special leave petitin is dismissed, except in rare cases where error of law or fact is apparent on the record, no review can be filed; that too by the Advocate-on-record who neither appeared nor was a party in the main case. It is salutary to note that the court spends valuable time in deciding a case. Review Petition is not, and should not be, an attempt for hearing the matter again on merits. Unfortunately, it has become, in recent time, a practice to file such review petitions as a routine, that too, with change of counsel, without obtaining consent of the Advocate-on-record at earlier stage. This is not conducive to healthy practice of profession.......

2. Once the petition for review is dismissed, no application for clarification should be filed, much less with the change of the Advocate-on-record. This practice of changing the advocates and filing repeated petitions should be deprecated with a heavy hand for purity of administration of law and salutary and healthy practice.

3. The application is dismissed with exemplary costs of Rs.20,000/- as it is an abuse of the process of court in derogation of healthy practice. The amount should be paid to the Supreme Court Legal Aid Services Committee within four months from today. If the amount is not paid it should be recovered treating this decision as decree of the Court by the Supreme Court Legal Services Committee. The Registry is directed to communicate the order to the Supreme Court Legal Services Committee.

10. In the light of the above decisions of the Honourable Supreme Court, I am of the view that the grounds raised by the Review Applicant in this Review Application cannot be entertained and the review application is liable to be dismissed.

Accordingly, the Review Application is dismissed. No costs.
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