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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
REVIEW APPLICATION NO.115 OF 2015
IN
WRIT PETITION NO.1581 OF 2013
1 Shri Chatrapati Shivaji Maharaj
Sahakari Dudh Utpadak Sanstha
Maryadit, Tq.Sangamner,
District Ahmednagar.
Through its Chairman.
2 Shri Chatrapati Shivaji Maharaj
Sahakari Dudh Utpadak Sanstha
Maryadit, Chikhali, Tq.Sangamner,
District Ahmednagar.
Through its Chairman.
..APPLICANTS
-Versus-
Maruti s/o Bhanudas Kolhe,
Age : 45 years, Occupation : Nil,
R/o Dhandarfal, Tq.Sangamner,
District Ahmednagar.
..RESPONDENT
.............
Shri R.N.Dhorde, Senior Advocate a/w Shri R.L.Kute, Advocate for the
Review Applicants.
Shri S.T.Shelke, Advocate for the Respondent.
............
CORAM : RAVINDRA V. GHUGE, J.
Reserved on : 07th February, 2017.
Pronounced on : 28th February, 2017.
Judgment :
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*2* ra.115.15.sxw 1 The Applicants in this Review Application, seek a review of
the judgment of this Court dated 06.01.2014 delivered in Writ Petition No.1581/2013. The grounds for review have been set out below paragraph 15.
2 The Respondent/ Employee has filed two affidavits in reply and has opposed the Review Application. The contention is that the Review Application is not maintainable, inasmuch as, the same deserves to be rejected even on merits.
3 I have heard the learned Senior Advocate for the Applicants and the learned Advocate for the Respondent/ employee at length. 4 The Honourable Apex Court, in the matter of Lily Thomas vs. Union of India, AIR 2000 SC 1650, has concluded that a review petition should not be entertained as if the Applicant is permitted to re-argue the entire Writ Petition. Similarly, the Review Application is not to be entertained as if it is an appeal.
5 Insofar as the maintainability of the Review Application is concerned, the Applicants have specifically stated in their pleadings that ::: Uploaded on - 28/02/2017 ::: Downloaded on - 01/03/2017 01:15:28 ::: *3* ra.115.15.sxw the judgment of this Court dated 06.01.2014 by which Writ Petition No.1581/2013 filed by the employee was allowed, was assailed before the Honourable Supreme Court in Special Leave to Appeal No.9798/2014. The Honourable Apex Court (three Judges Bench) has dismissed the SLP by it's order dated 04.08.2014. Thereafter, the Applicants have filed this Review Application on 24.11.2014. It is, therefore, clear that the Applicants have not suppressed any material aspect from this Court. 6 The Respondent/ Employee has placed reliance upon the judgments of the Honourable Apex Court in the matters of Kunhayammed and others vs. State of Kerala and another, (2000) 6 SCC 359, Haridas Das vs. Smt.Usharani Banik, AIR 2006 SCW 1771 and the judgment of this Court in the matter of Sudha Hari Pophale and others vs. The Oriental Insurance Company Limited, 2015 (3) ALL MR 101, in support of his contention that once the SLP has been dismissed, a review petition cannot be filed.
7 In Kunhayammed and others vs. State of Kerala (supra), the Honourable Apex Court concluded that if a well reasoned/ speaking order is passed by the Court, the remedy to file a review before the High Court would not be available. However, if the SLP is dismissed by a non ::: Uploaded on - 28/02/2017 ::: Downloaded on - 01/03/2017 01:15:28 ::: *4* ra.115.15.sxw speaking order, it would neither attract the doctrine of merger, nor would it be a declaration of law by the Court under Article 141 of the Constitution of India. If a speaking/ reasoned order is passed, it would mean that the Court has declared the law. In such situation, a review may not lie.
8 The learned Senior Advocate has relied upon the judgment of the Honourable Supreme Court in the matter of Bakshi Dev Raj (2) and another vs. Sudheer Kumar, (2011) 8 SCC 679. He has also relied upon the judgment delivered in Kunhayammed and others vs. State of Kerala (supra).
9 The Honourable Apex Court in Bakshi Dev Raj case (supra), has held that after the SLP is dismissed without assigning reasons, a review can be preferred before the High Court. If the Special Leave to Appeal is granted, a review cannot be entertained. 10 In the instant case, the Honourable Apex Court has dismissed the SLP filed by the Applicants by passing the following order:-
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*5* ra.115.15.sxw 11 It is apparent that the Honourable Apex Court has dismissed
the SLP and has neither granted leave to the Applicants, nor is a speaking order passed.
12 Besides the above, the learned Advocates for the respective sides have stated that the issue as to whether, a review can be entertained after the SLP is dismissed, has been referred to the Larger Bench. 13 Considering the above and the order passed by the Honourable Apex Court, I am entertaining this Review Petition. 14 I have considered the nine grounds raised by the Applicants. After going through these grounds, I have gone through the judgment delivered by this Court. The whole thrust of the Applicants is that the Respondent/ Employee had admitted the charge of misappropriation. There is no dispute that the employee was not given the charge sheet and no domestic enquiry was conducted against him. The written apology dated 29.12.1999 is placed on record. The same is in Marathi. The English translation of the said document would indicate that the employee has stated that "I am working in your organization from 1989 as a Collection Incharge. In future I would safeguard the interest of the ::: Uploaded on - 28/02/2017 ::: Downloaded on - 01/03/2017 01:15:28 ::: *6* ra.115.15.sxw organization and would never commit any misconduct. I am not a member of the organization. I will not supply milk to the organization. I am withdrawing both the notices dated 18.12.1999 and 23.12.1999 issued by me to the organization. Henceforth, if I commit any misconduct I would be responsible."
15 The above script was presumed by the Applicant/ Management as being an admission of the charge of misappropriation. The Labour Court as well as the Industrial Court concluded that the employee had clearly accepted the charges levelled upon him. These submissions were held to be fallacious in the judgment delivered by me for the reason that there was no written charge sheet/ show cause notice issued to the employee and consequentially, there is no reference of any document in the purported apology stating that the employee was accepting the charges levelled upon him. In the absence of the charge sheet/ show cause notice and in the absence of any specific statement that the employee is admitting the charges levelled upon him, the said script could not have been said to be a clear acceptance of the charges levelled upon the employee. In my view, there is no error on this count in the judgment under review.
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*7* ra.115.15.sxw 16 The other ground raised is that this Court had erroneously
granted 60% back wages to the employee while allowing his petition. He has his own milk business. He is supplying milk to a dairy society. He is getting income from agriculture and hence, the back wages should not have been granted.
17 The employee had filed an affidavit before the Labour Court dated 19.09.2006 in his Complaint (ULP) No.71/2000 stating therein that the Employer has terminated his services so as to prevent him from supplying milk to the society. This would indicate that the employee did have some business of supplying milk. The fact cannot be ignored that he was an employee of the Applicant/ Establishment and performing his duties as an employee. Taking into account the fact that the employee was earning some extra amount on account of his milk (agricultural yield), it would not absolve the Applicants from the responsibility from payment of the back wages. If the employee was earning such income from supplying milk, which is more than his salary and if he was into a prospering business, he would not have devoted the major part of the day in working with the Applicants. Instead, he would have devoted his time to promoting his own business, if it was a flourishing business. ::: Uploaded on - 28/02/2017 ::: Downloaded on - 01/03/2017 01:15:28 :::
*8* ra.115.15.sxw 18 The above aspect was taken into account by this Court after
considering the record, which indicated that at times the employee was earning some money by selling milk which belonged to him. Therefore, I had granted only 60% back wages to him.
19 The learned Senior Advocate has strenuously submitted that the employee has agricultural lands. The employee has produced a certificate from the Talathi of the concerned area as well as a certificate issued by the Village Development Officer indicating that he is "Bhoomiheen" (landless) and he is living below poverty line. It is, therefore, obvious that certain disputed issues are being raised before this Court, though the Applicants have not been able to point out that his monthly earnings were more than his salary while in service. In the light of these aspects, I do not find that this review petition deserves to be entertained.
20 The learned Senior Advocate has canvassed in the alternative that as the the Applicant/ Management is not in sound financial condition and though the huge amounts visible from it's accounts are towards deposits which have to be apportioned on routine basis towards the payments of the suppliers of milk, if this Court is not inclined to entertain ::: Uploaded on - 28/02/2017 ::: Downloaded on - 01/03/2017 01:15:28 ::: *9* ra.115.15.sxw this review application, certain installments may be granted for making the payment of the back wages. Shri Shelke, learned Advocate for the Employee, has strenuously opposed this request. 21 On 24.01.2017, the employee had made a grievance that the Applicants have reinstated him only to create a "make believe picture" and are paying him Rs.1100/- only as monthly wages. Considering this grievance, I had passed the following order on 24.01.2017:-
"1. Shri Shelke, learned Advocate makes a serious grievance that though the direction of this Court granting reinstatement has been implemented, the applicants are paying the respondent Rs.1,100/- as his monthly wages.
2. The applicant/ establishment shall file a short affidavit on the next date to indicate the amount of wages being paid to those employees who are similarly situated as like the respondents and are comparable with the respondents. So also, the applicant shall state in the affidavit as to what are the minimum rates of wages prescribed for the industry in which the applicant operates its business.
3. The affidavit shall be filed on/or before 03.02.2017.
4. S.O. to 07.02.2017 in the Supplementary Board."
22 The Applicants have filed an affidavit in reply dated 07.02.2017. Though a lengthy reply has been entered, the Applicants have not stated the minimum rates of wages payable to the employees as like the Respondent/ Employee herein. It is sought to be justified that there is one more employee, who is paid Rs.1100/- per month. I find that ::: Uploaded on - 28/02/2017 ::: Downloaded on - 01/03/2017 01:15:28 ::: *10* ra.115.15.sxw the Applicants apparently have suppressed material information from this Court. It is unbelievable that the salary of a permanent employee could be Rs.1100/- per month.
23 Therefore, considering the above, on the condition that the Applicants would be bound to pay the minimum rates of wages to the Respondent/ Employee, I am accepting the request of Shri Dhorde, learned Senior Advocate towards equated monthly installments for repayment of the back wages.
24 As such, I am permitting the Applicants to pay the back wages of the Respondent/ Employee as directed in the judgment of this Court, in nine equated monthly installments on the condition that at least the minimum wages or such wages which are being paid to similarly situated comparable workmen, whichever is more, shall be paid to the Respondent.
25 This Review Application is, therefore, partly allowed only to the extent of the directions set out in paragraph 24 above.
kps (RAVINDRA V. GHUGE, J.)
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