Bombay High Court
Maharashtra Rajya Vidyut Mandal ... vs Maharashtra State Electricity ... on 2 August, 2021
Bench: S.B. Shukre, Swapna Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
MISC. CIVIL APPLICATION NO.1228 OF 2019 WITH
C.A.(W) No.81 OF 2020 IN
WRIT PETITION NO. 1316 OF 2001
(Maharashtra Rajya Vidyut Mandal Nivrutta Karmachari Sangh, Nagpur and Others .vs.
Maharashtra State Electricity Board, Mumbai, through its Secretary and Others)
__________________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Mr.M.G.Bhangde, Senior Advocate assisted by Mrs.Gauri
Venkatraman, Advocate for the applicants/petitioners.
Mr.A.D.Mohgaonkar, Advocate for respondent nos.1, 2
and 4 to 7.
None for respondent no.3.
CORAM : SUNIL B. SHUKRE AND
MRS.SWAPNA JOSHI, JJ.
DATE : 2.8.2021.
Civil Application No.81 of 2020
1. Heard.
2. For the reasons stated in the application, same
is allowed. However, the question as to what extent this
document could be relied upon in the review petition is
left open to be decided on its own merits. The application
is disposed of accordingly.
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MISC. CIVIL APPLICATION NO.1228 OF 2019
1. Heard.
2. It is submitted by Mr.M.G.Bhangde, learned
Senior Advocate for the applicants that nobody had
argued before this Bench when it disposed of the petition
that the Board resolution dated 31.12.1996 required it's
implementation and that there being no order passed by
the Chief Executive Officer implementing the resolution,
the matter would have to be referred to the State
Government. He further submits that it is well settled law
that when a case is decided on a point not either argued
by any of the parties, that itself is sufficient for taking
review of the Judgment.
3. According to Mr.Mohgaonkar, learned Counsel
for respondent nos. 1, 2 and 4 to 7, even though there
was no argument relating to need for implementation of
the Board resolution, the fact remains that a particular
view in a matter has been taken by this Court; rightly or
wrongly and when it is done, no scope is left for review of
the order or the judgment.
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4. On going through the judgment sought to be
reviewed, we are of the view that there is substance in the
argument of Mr.Mohgaonkar, learned Counsel for the
respondents. The argument advanced on behalf of the
respondents has been briefly stated in paragraph 4 of the
Judgment under review. The argument then advanced
was two fold. The first submission was related to Board
resolution requiring approval of the State Government as
the Board resolution passed in this case amounted to
change in service conditions. The second submission was
that the approval of the State Government had been
declined in the year 2009 and that, in absence of any
support and security from the State Government, pension
could not be made applicable. On these submissions, this
Court took a view that the change in service conditions
has been proposed by the Board vide it's resolution passed
on 31.12.1996. It is further held that, the Board, by
passing resolution, could not have brought in any change
and the resolution needed implementation. What can be
understood from these observations is that this Court was
of the opinion that the resolution passed by the Board
regarding approval of Pension Scheme to be formulated
was in the nature of a proposal and that it amounted to
effecting change in service conditions.
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5. As regards the Board resolution being treated
only as a proposal and not as a decision, learned Senior
Advocate submits that on the face of the Board resolution
in question, it is apparent that it is nothing but a decision
and by no stretch of imagination, could it be said that it is
a mere proposal to be approved and accepted by the State
Government inasmuch as there is no provision pointed
out which necessitates that the respondents require
approval of the State Government to such a proposal.
6. The question as to whether or not the Board
resolution on the face of it was a decision and not a
proposal has been decided in the present case in a
manner that it is a proposal. This view now has been
taken and whether it ought to have been taken or not
could not be a subject matter of review. Therefore, the
argument made in this behalf by the learned Senior
Advocate for the applicants cannot be considered.
7. Same is true about the observations of this
Court as regards the effect of Board resolution and it's
need for implementation. This Court has then found that
the Board resolution amounts to change in service
conditions and therefore, it required implementation.
The view is thus taken in respect of a certain point,
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whether argued or not. It may not be acceptable to any of
the parties. It may also not be acceptable to another
forum. But when the forum which has taken a view is a
coordinate forum, it would not be open for the other
forum to re-open the case and start going about review of
the judgment. That is not permissible in law.
8. In view of above, we are not inclined to
entertain this review petition. As regards reliance placed
upon the General Order No.34, dated 19.3.1965, we can
only say that the argument to be advanced on the basis of
this order would have to be done in appropriate
proceedings and not the present case. In the result,
present Misc. Civil Application for review stands
dismissed. C.A.(W) No.81 of 2020 is disposed of
accordingly. No costs.
JUDGE JUDGE
jaiswal
