Shri. Chatrapati Shivaji Maharaj ... vs Maruti Bhanudas Kolhe
2017 Latest Caselaw 116 Bom

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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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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

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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

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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:-

"DISMISSED."

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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

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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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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.

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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

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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

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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.)