Kerala High Court
Shaji P.C vs The Kalamassery Municipality on 11 April, 2025
Author: Anil K.Narendran
Bench: Anil K.Narendran
2025:KER:32062
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 11TH DAY OF APRIL 2025 / 21ST CHAITHRA, 1947
RP NO.1171 OF 2024
JUDGMENT DATED 04.10.2024 ARISING FROM WA NO.1408 OF 2024
OF HIGH COURT OF KERALA
REVIEW PETITIONER/APPELLANT:
SHAJI P.C
AGED 51 YEARS
S/O.CHATHAN, PERINGOTTUMUGAL, VADACODE P.O,
KANGARAPPADI, ERNAKULAM, PIN - 682021
BY ADVS.
ASOKAN K.V.
INDUCHOODAN.A
RESPONDENT/RESPONDENT:
1 THE KALAMASSERY MUNICIPALITY,
REPRESENTED BY ITS SECRETARY,
CHANGAMPUZHA NAGAR P O, ERNAKULAM DIST,
PIN - 682033
2 THE SECRETARY
KALAMASSERY MUNCIPALITY CHANGAMPUZHA NAGAR P O,
ERNAKULAM DIST, PIN - 682033
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON
17.03.2025, THE COURT ON 11.04.2025 DELIVERED THE
FOLLOWING:
2025:KER:32062
2
R.P.No.1171 of 2024 in W.A.No. 1408 of 2024
ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.
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R.P.No.1171 of 2024 in W.A.No. 1408 of 2024
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Dated this the 11th day of April 2025
ORDER
P.G. Ajithkumar, J
The appellant has filed this review petition invoking the
provisions of Section 114 and Rule 1 of Order XLVII of the Code
of Civil Procedure, 1908. Petitioner filed the writ appeal
challenging the judgment dismissing W.P.(C) No.16907 of 2024.
As per the judgment dated 04.10.2024, writ appeal was
dismissed. The petitioner would contend that there are errors
apparent on the face of the record and therefore the judgment in
the writ appeal is liable to be reviewed. The 2 nd respondent -
Secretary of the Kalamassery Municipality has filed a counter
affidavit controverting the contentions and allegations set forth
in the review petition.
2. Heard the learned counsel for the petitioner and the
learned Standing Counsel for the respondents.
3. Petitioner claims that he had been working as a
driver-cum-scavenger since 07.03.2011, and he was terminated
from service on 29.05.2022 without assigning any reason or
2025:KER:32062
R.P.No.1171 of 2024 in W.A.No. 1408 of 2024
giving him an opportunity of being heard resulting in denial of
his fundamental right and means of livelihood. He belongs to a
scheduled caste and having put in such a long service; he is
entitled for regularisation in service. He along with other
similarly placed employees filed W.P.(C) No.11307 of 2020
before this Court seeking a writ directing their regularisation and
in order to deny him the benefit of the said case, his service was
terminated without any reason.
4. The petitioner would contend that he is a workman
covered by the provisions of the Kerala Industrial Employment
(Standing Orders) Rules, 1958, and therefore his termination
without following the procedure prescribed in the said Rules is an
unfair trade practice requiring interference by this Court.
However, while considering the writ appeal, this Court failed to
accept that contention and therefore the view taken in that
matter is wrong. It is further contended that the petitioner
categorically denied the allegation that he aided another
employee who was involved in a criminal case. But this Court did
not take note of that assertion. The view taken in the judgment
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R.P.No.1171 of 2024 in W.A.No. 1408 of 2024
regarding the delay is also incorrect. Those are the essential
grounds in support of the plea for review.
5. In Meera Bhanja v. Nirmala Kumari Choudhury
[(1995) 1 SCC 170] the Apex Court held that review
proceedings are not by way of an appeal and have to be strictly
confined to the scope and ambit of Order XLVII, Rule 1 of the
Code.
6. In Parsion Devi v. Sumitri Devi [(1997) 8 SCC
715] the Apex Court, in the context of the power of review
under Order XLVII, Rule 1 of the Code held that, a judgment
may be open to review inter alia if there is a mistake or an error
apparent on the face of the record. An error that is not self-
evident and has to be detected by a process of reasoning, can
hardly be said to be an error apparent on the face of the record
justifying the Court to exercise its power of review under Order
XLVII, Rule 1 of the Code. In the exercise of the jurisdiction
under Order XLVII, Rule 1 of the Code, it is not permissible for
an erroneous decision to be "reheard and corrected". A review
petition has a limited purpose and cannot be allowed to be "an
appeal in disguise".
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R.P.No.1171 of 2024 in W.A.No. 1408 of 2024
7. In Lily Thomas v. Union of India [(2000) 6 SCC
224] the Apex Court reiterated that, the power of review can be
exercised for correction of a mistake but not to substitute a view.
The review cannot be treated as an appeal in disguise. The mere
possibility of two views on the subject is not a ground for review.
8. In Anantha Reddy N. v. Anshu Kathuria [(2013)
15 SCC 534] the Apex Court held that, the review jurisdiction is
extremely limited and unless there is mistake apparent on the
face of the record, the order/judgment does not call for a review.
The mistake apparent on record means that the mistake is self-
evident, needs no search, and stares at its face. Surely, review
jurisdiction is not an appeal in disguise. The review does not
permit the rehearing of the matter on merits.
9. The Apex Court in S.Madhusudhan Reddy v.
V.Narayana Reddy and others [2022 SCC OnLine SC 1034 :
2022 (5) KLT SN 18] held that the Court's jurisdiction of
review is not the same as that of an appeal. A judgment can be
open to review if there is a mistake or an error apparent on the
face of the record, but an error that has to be detected by a
process of reasoning, cannot be described as an error apparent
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R.P.No.1171 of 2024 in W.A.No. 1408 of 2024
on the face of the record for the Court to exercise its powers of
review under Order XLVII Rule 1 CPC.
10. The respondents do not dispute that the petitioner
was engaged as a driver by the Municipality. Payment of
remuneration to him through his bank account is also not
denied. Contention of the respondents is that the petitioner was
a daily wager engaged on demand basis and his wages
cumulatively on periodical basis have been remitted in his bank
account. It is contended that during the period from 2017 to
2019 alone wages were so paid through bank. The finding of
this Court in that regard does not have any error inasmuch as
his claim regarding his engagement was found in the affirmative
although the nature of employment as claimed by him was not
acceded to.
11. The petitioner now contends that his termination
amounted to an unfair trade practice coming within the purview
of the Industrial Disputes Act, 1947 insofar as his retrenchment
violated the provisions of the Kerala Industrial Employment
(Standing Orders) Rules.
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R.P.No.1171 of 2024 in W.A.No. 1408 of 2024
12. As rightly pointed out by the learned counsel for the
respondents, such a claim of the petitioner, having been
controverted by the employer, amounts to a dispute as defined
in Section 2(k) of the Industrial Disputes Act. The petitioner
alleges that he was retrenched giving scant regard to the
provisions of the Kerala Industrial Employment (Standing
Orders) Rules and also the provisions in the Industrial Disputes
Act. The respondents raised a contention that the Municipality or
its establishments are not an industrial establishments for the
purpose of the Industrial Disputes Act. Such a contention raised
anew does not require consideration in this review petition going
by the law laid down in the aforesaid decisions. Further, if the
action taken against the petitioner amounts to an industrial
dispute, effective statutory remedy is available under the
Industrial Disputes Act itself and a writ petition cannot be
entertained as a matter of course. Therefore, no review is
possible on the said ground.
13. This Court after considering the rival contentions,
rendered findings on the questions concerning the petitioner's
role in aiding his co-worker who was involved in a theft case and
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R.P.No.1171 of 2024 in W.A.No. 1408 of 2024
also the delay. If there is any error in those findings, that is not
on account of non-consideration or mistaken consideration. If the
view taken by this Court is incorrect, the remedy is not a review
inasmuch as a petition for review cannot be an appeal in
disguise.
14. Yet another contention raised by the petitioner is that
by terminating the petitioner from service, his livelihood was
denied, amounting to violation of his fundamental right
guaranteed under Article 21 of the Constitution of India. As an
ancillary contention he maintains that he is entitled for
regularisation and therefore he is liable to be reinstated in
service. Certainly, if employment is denied to the petitioner in
gross violation of law and arbitrarily, he may be able to allege
violation of his fundamental right. The Apex Court in State of
Karnataka v. Umadevi [(2006) 4 SCC 1] held that no
contractual or casual employee is entitled for regularisation. Only
if the person has been in temporary employment against a
regular vacancy for a period of 10 years as on 10.04.2006, he
would be entitled for regularising in the service. Therefore, the
claim of the petitioner that his termination from the service as a
2025:KER:32062
R.P.No.1171 of 2024 in W.A.No. 1408 of 2024
daily wager resulted in violation of his fundamental right cannot
be countenanced. And, at any rate, that is not a reason for a
review.
In view of what are stated above, we find no reason to
review the judgment dated 04.10.2024 in Writ Appeal No.1408
of 2024. Hence this review petition is dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
PV
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R.P.No.1171 of 2024 in W.A.No. 1408 of 2024
PETITIONER'S ANNEXURES
Annexure A CERTIFIED COPY OF THE JUDGEMENT, WA
1408/24 DATED 04/10/2024
Annexure B A TRUE COPY OF THE INTIMATION LETTER
DATED 05/07/2023 WITH TRANSLATION
Annexure C A TRUE COPY OF THE LETTER DATED
21/02/2024 WITH TRANSLATION
Annexure D RELEVANT PORTION OF THE RULES, THE
KERALA INDUSTRIAL EMPLOYMENT (STANDING
ORDERS) RULES, 1958',
Annexure E TRUE COPY OF THE GAZETTE NOTIFICATION
DATED 14/02/1984
Annexure F TRUE COPY OF SALARY ACCOUNT STATEMENT
DATED 25/07/2024 OF THE REVIEW
PETITIONER
Annexure G TRUE COPY OF PROVIDENT FUND ACCOUNT
PARTICULARS OF THE REVIEW PETITIONER,
DATED 25/07/2024
Annexure H RELEVANT PORTION OF THE ACT, THE IDA ACT
Annexure I RELEVANT PORTION OF THE RULES, 'THE
KERALA INDUSTRIAL EMPLOYMENT (STANDING
ORDERS) RULES, 1958
Annexure J RELEVANT PORTION OF THE ACT, THE IDA ACT
