Bombay High Court
Khandsh Education Society ... vs Ravindra Prabhulal Mundankar And ... on 24 September, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
914 CIVIL APPLICATION NO.254 OF 2021
IN RAST/21023/2020
WITH
REVIEW APPLICATION (STAMP) NO.21023/2020
IN WP/1738/2018
KHANDSH EDUCATION SOCIETY AMALNER AND
ANOTHER
VERSUS
RAVINDRA PRABHULAL MUNDANKAR AND OTHERS
...
AND
915 CIVIL APPLICATION NO.256 OF 2021
IN RAST/21021/2020
WITH
REVIEW APPLICATION (STAMP) NO.21021 OF 2020
IN WP/1750/2018
KHANDSH EDUCATION SOCIETY THROUGH ITS
SECRETARY AND ANOTHER
VERSUS
MAHAVEER PRAVIN JAIN AND OTHERS
...
Advocate for the Applicants : Shri Navandar Manish N.
Advocate for Respondents 1 : Shri B.R. Warma
AGP for Respondents 2 and 3 in Sr.No.914 : Shri S.B.
Pulkundwar
AGP for Respondents 2 and 3 in Sr.No.915 : Shri S.R. Yadav
Lonikar
...
CORAM : RAVINDRA V. GHUGE
&
S.G. MEHARE, JJ.
DATE :- 24th September, 2021
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Per Court :-
1. All the litigating parties appearing through the
counsel were agreeable to workout the Review Applications
today itself. The learned advocate for the original petitioners
even stated that the Civil Applications for condonation of delay
may be allowed and the Review Applications may be taken up
for final disposal.
2. The learned advocate for the Review Applicants is
also agreeable.
3. In view of the above, both the Civil Applications
seeking condonation of delay of 225 days in filing the respective
Review Applications, are allowed and by consent of the parties,
the Review Applications are taken up for final hearing.
4. It is well settled in Lily Thomas vs. Union of India,
AIR 2000 SC 1650, that a review petition would not permit a
party to canvass such grounds, which would have the semblance
of re-arguing the writ petition itself. An apparent mistake in fact
and in law has to be pointed out on the face of the order.
5. The learned advocate for the review applicant/
Management is aggrieved by the two clauses of the interim
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orders under review dated 24.02.2020 delivered by this Court
(both Honourable Judges have now retired) in Writ Petition
Nos.1738/2018 and 1750/2018.
6. It would be apposite to reproduce paragraphs 2 to 4
of the interim order passed in Writ Petition No.1738/2018
hereunder :-
"2. The Respondent-Management is not disputing
that the petitioner had been working with them
on daily wages since 2003 and then after the
settlement of the dispute before the University
& College Tribunal, the petitioner is working
on daily wages.
3. The Respondent-Management has stated in the
reply fled before this Court that the
Management is willing to pay the petitioner @
Rs.140/- per day, however, he is not accepting
the payment.
4. Considering the undisputed facts, following
interim order is passed:
[i] The Respondent-Management shall make
payment to the petitioner in the prescribed pay
scale as per the rules, for the post of Peon.
[ii] The arrears shall be paid by the Respondent-
Management by a Demand Draft or by
depositing the amount in the bank account of
the petitioner, till 15.05.2020.
[iii] The Respondent-Management shall continue to
pay the regular salary to the petitioner as per
the prescribed pay scale every month along
with other emoluments by depositing the
amount in the bank account of the petitioner.
[iv] The Respondent-Management is at liberty to
make claim for disbursement of the amount
from the department and if such claim is made,
the department shall take decision as per the
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rules."
7. The contention is that the writ petitions have been
filed by the original appellants/ employees, who were terminated
employees of the review applicant/ Management. Both the
parties settled the dispute before the University Tribunal and the
Management agreed to reinstate the employees without
backwages on the condition that they would be paid salary as per
the pay scale. The Management would seek reimbursement of the
amount of salary paid to the employees and if the Education
Department declines to sanction the payment as per the pay
scale, the Management would not be responsible. Since the
Education Department declined to sanction salary grants as the
employees, according to the Education Department, were not
appointed by following the legal procedure, that the employees
have preferred Writ Petition Nos.1738/2017 and 1750/2018 for
challenging the decision of the Education Department dated
18.08.2017.
8. We find from the record that the learned counsel
representing the Management, when the interim orders sought to
be reviewed dated 24.02.2020 were passed, is not the advocate,
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who has preferred these Review Applications. When the writ
petitions are pending and the order sought to be reviewed is an
interim order passed therein, the party seeking review should
have practiced self imposed restraint and ideally should have
approached this Court through the same advocate. Nevertheless,
we have extensively heard the learned advocate for the review
applicants and we do not intend to go into the issue as to why the
Management has opted for a new advocate. We leave this issue to
the good conscience and wisdom of the Review Applicants.
9. It is undisputed that the employees at issue were
being paid Rs.140/- per day, which is about Rs.4200/- per month.
Our judicial conscience is shocked by this fact. We do not expect
a human being to keep his mind, body and soul together with a
paltry amount of Rs.4200/- per month in which he and his family
is to survive.
10. The above aspect was canvassed before the learned
Bench which passed the interim orders dated 24.02.2020 and
after considering this aspect, the learned Bench has passed the
interim orders.
11. The learned advocate for the review applicants/
Management submits that the directions at paragraphs 4(i) and
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4(iv) need to be reviewed. The basis for such contention is that
the settlement between the employees and the Management does
not prescribe that the Management should pay the pay scale to
the employees if the Education Department does not sanction the
prescribed pay scale. We do not find that the said submission
could be sustained for the reason that the compromise between
the employees and the Management cannot create a financial
burden on the State Government, which is not a party to the
settlement between the two outside the Court. No such settlement
without participation of the Government, could create a financial
burden on the Government, either directly or indirectly. In this
backdrop and keeping in view that an employee cannot be
expected to sustain himself and his family in Rs.4200/- per
month, we do not find that paragraph 4(i) deserves to be
reviewed.
12. Insofar as paragraph 4(iv) is concerned, the State
Government, which is not a party to the settlement, is not obliged
to grant funds for the reasons which are already subject of
challenge in the pending Writ Petitions. The fact remains that the
Management has reinstated the employees so as to avoid the
judgment of the University Tribunal and after the employees
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waived the backwages which reduced the financial burden on the
Management. Disallowing of the bills, would cast the burden on
the Management to make the payment of salary to the
employees, who are admittedly working with the Management
and cannot be expected to survive with Rs.4200/- per month.
13. In view of the above, paragraph 4(iv) of the interim
order does not call for review as no error or mistake apparent on
the face of the record is made out.
14. The Review Applications are, therefore, rejected.
kps (S.G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
