Bose Institute & Ors vs Ramapada Manna & Ors
2021 Latest Caselaw 6266 Cal

13.12.2021
Item No. 03
Ct. No. 16
AN/RP


                              RVW 181 of 2015
                                    with
               IA No.CAN 1 of 2015 (Old No.CAN 8391 of 2015)
                                          r




                             Bose Institute & Ors.
                                       Vs.
                            Ramapada Manna & Ors.




              Mr. Sahasrangshu Bhattacharya
              Mr. Sukanta Chakraborty
                                              .... For the Applicants
              Ms. Chandreyi Alam
              Ms. Runu Mukherjee
                                              .... For Union of India
              Mr. Atish Dipankar Roy
              Mr. Shovendu Banerjee
                                    .... For Respondent nos.1 and 2

IA No.CAN 1 of 2015 (Old No.CAN 8391 of 2015)

The applicants in this application are Bose

Institute, its director and registrar. The application is

being filed to condone the delay of 191 days in filing

the review application.

We have heard the learned counsels for the

parties and perused the averments set out in the

application for condonation of delay. We find the

reasons assigned show sufficient cause for condoning

the delay in filing the review application. Accordingly,

CAN 1 of 2015 (Old No.CAN 8391 of 2015) is allowed

and delay of 191 days in preferring the review

application is condoned.

In Re : RVW of 2015

This review application has been filed by the

Bose Institute, its Director and Registrar to review the

judgment and order dated November 27, 2014 and

December 1, 2014. The review applicant was the

respondents no.1, 2 and 3 in the writ petition filed by

the first and second respondent herein. The said writ

petition was filed seeking for issuance of writ of

mandamus to direct implementation of the order and

judgment dated 8th November, 2010 passed by a

coordinate Division Bench of this Hon'ble Court in

MAT 3852 of 1998. The Hon'ble Division Bench by

judgment and order dated 27th November, 2014

disposed of the appeal along with an application for

modification filed by the appellant being CAN 9513 of

2014. The modification was done under the

impugned order to declare that the State Government

to be the appropriate government for the purpose of

resolving the dispute between the management and

the workman.

The Bose Institute before us by way of review

application contending that at the relevant point of

time i.e. when the appeal was heard out and disposed

of the definition of appropriate government as defined

under Section 2(a) stood amended by substitution of

Clause (ii) by the Act of 2010 with effect from

15.9.2010. It is submitted by the learned counsel for

the review applicant that in terms of Clause (ii) of

Section 2(a) of the Industrial Disputes Act the

definition of appropriate government had been

modified and the proviso of said provision would be

applicable to the case on hand which state that in

case of a dispute between the contractor and the

contract labour employed by the contractor in any

industrial establishment where such dispute arose,

the appropriate government shall be the Central

Government or State Government as the case may be,

which has control over such industrial establishment.

It is submitted by the learned counsel that the

definition of appropriate government under the

provisions of Contract Labour (Regulation and

Abolition) Act, 1970 would be as per the definition of

appropriate government under Section 2(a) of

Industrial Disputes Act. It is submitted that though

the law stood as stated above on the date when the

Hon'ble Division bench heard the matter, this was not

noticed or not brought to the notice of the Hon'ble

Division Bench and the finding rendered by the

Division Bench is presumably based on the definition

of appropriate government defined under Section 2(a)

(ii) of the Industrial Dispute Act, 1947 as it stood

prior to the amendment had weighed in the mind of

the Division Bench which, in fact, is in the case of

residuary clause stating that in relation to any other

industrial dispute the appropriate government would

be the State Government. Therefore, it would be

submitted that the judgment and order of the

Division Bench needs to be reviewed and that portion

of the judgment be set aside and the appropriate

government in the case in hand should be held to be

the State Government.

The learned Counsel appearing for the

respondents submitted that none of the grounds

which are required to be made out for maintaining a

review application have been pointed out by the

review applicants and in any event as per the

judgment and order passed by the Hon'ble Division

Bench the State Government has taken up the matter

and an order was passed on 17.03.2017 to that effect

but the same is not being implemented for the

reasons that a review application has been filed by

the review applicant.

We have elaborately heard the learned advocates

for the parties and carefully perused the materials on

record. Before we examine the factual aspect raised

before us, we need to point out while exercising

review jurisdiction the Court is not expected to act as

a Court of Appeal. In other words, the error which

has been pointed out should be apparent on the face

of the order and the review Court is not expected to

make a roving enquiry into the matter as if the matter

suffers from illegality. Bearing this legal principle in

mind, we examined the order impugned passed by the

Hon'ble Division Bench and we find that the Division

Bench has given certain reasons as to why it has

come to the conclusion that the appropriate

government in the case in hand is the State

Government. The Division Bench held that certain

Government nominees are nominated by the Central

Government in the Governing Body of Bose Institute

and fund is also provided by the Central Government

for running the said Institute, but the Governing

Body which comprises of various important

personalities including some Central Government and

State Government nominees is an autonomous body

and the said Institute is run as per the decision of the

Governing body of the said Institute. Further, the

Hon'ble Division Bench held that the Central

Government does not retain pervasive control over the

administration and management of Bose Institute.

Such an Institute can never be held to be carried on

by or under the authority of the Central Government

and as such the Central Government cannot be held

to be an appropriate Government for resolving the

dispute as mentioned by the Division Bench of this

Hon'ble Court on 8th November, 2000 in MAT 3852 of

1998. Therefore, the Division Bench concluded that

the State Government is the appropriate authority to

decide the present dispute between the parties and in

support of such conclusion placed reliance on the

decision of the Hon'ble Supreme Court in the case of

Steel Authority of India Limited vs. National Union

Waterfront Workers & Ors. reported in 2001(7) SCC

1. The submission of the learned counsel for the

review applicant is that the finding rendered by the

Division Bench in its judgment is incorrect and it is

the Central Government who has pervasive control

over the applicant institute. This issue is not a

ground of review of the judgment before us. At best it

can be reckoned to be a ground for appeal and not for

review. Thus, in absence of any error which is

apparent on the face of the judgment and order, we

decline to exercise our review jurisdiction. It is well

settled that a review application is not an appeal in

disguise. Thus, while deciding the correctness of the

submission advanced on behalf of the review

applicant, we cannot act as an appeal Court over the

judgment of the Division Bench. Thus, for the above

reasons, the review application is dismissed.

It is further seen that the judgment of the

Division Bench had been given effect to by the State

Government and an order has been passed on

8.3.2017. On perusal of the said order we find that

pendency of this review application has been noted in

the said order. The learned Counsel for the review

applicants is right in his submission that merely

because the State Government has given effect to the

said order, it will not take away the right of the

applicant Institute to agitate its contention that the

appropriate government insofar as the applicant

institute is concerned is the Central Government.

Therefore, we make it clear that the decision rendered

by the Division Bench dated 27.11.2014 cannot be

referred to as a precedent in future litigation since the

review applicant is in the process of challenging the

said order. We made such observation as because we

held that submission made by the review applicant is

not an error apparent on the face of the order for us

to exercise review jurisdiction. Therefore, the legal

issue necessarily has to be left open. As we dismiss

the review application, it is open to the State

Government to take appropriate step.

(T. S. Sivagnanam, J.)

(Hiranmay Bhattacharyya, J.)