Madras High Court
E. Loganathan vs Unknown on 4 January, 2024
Author: S. Vaidyanathan
Bench: S. Vaidyanathan
Review Application Nos.9 to 12 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.01.2024
CORAM:
THE HON'BLE MR. JUSTICE S. VAIDYANATHAN
and
THE HON'BLE MRS. JUSTICE R. KALAIMATHI
Review Application Nos.9 to 12 of 2024
and
C.M.P. Nos.607, 608, 610 & 611 of 2024
E. Loganathan Applicant in R.A. No.9 of 2024
K. Ranganathan Applicant in R.A. No.10 of 2024
K. Santhanam Applicant in R.A. No.11 of 2024
K. Ramasami Applicant in R.A. No.12 of 2024
v
1 The Managing Director (previously, the Special Officer)
Vellore District Central Cooperative Bank Ltd.
3, Officer's Line
Vellore 632 001
2 The Joint Commissioner of Labour/
Appellate Authority under the Payment of Gratuity Act
VI Floor, DMS Compound
Teynampet, Chennai 600 006
3 The Assistant Commissioner of Labour-I/
Controlling Authority under the Payment of Gratuity Act
VI Floor, DMS Compound
Teynampet, Chennai 600 006 Respondents in all R.As.
Review Applications filed under Order XLVII Rule 1 read with Section
115 of the Civil Procedure Code seeking to review the common judgment
dated 21.02.2023 passed by this Court in W.A. Nos.1950, 1968, 1965 and
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1/10
Review Application Nos.9 to 12 of 2024
1947 of 2021, respectively.
For applicants in Mr. G. Sankaran, Sr. Counsel
all R.As. for Mr. S. Nedunchezhiyan
For respondents in Mr. C. Selvaraj
all R.As. Addl. Government Pleader
-------
COMMON ORDER
(made by S. VAIDYANATHAN, J.)
These applications are filed seeking to review the common order dated
21.02.2023 passed by this Court in W.A. Nos.1950, 1968, 1965 and 1947 of
2021, respectively.
2 At the outset, for the sake of better appreciation of the issue, it is
worth extracting the operative portion of the order under review:
“10. As discussed supra, we are of the view that in the light of the
decision of the Hon'ble Supreme Court reported in 1991 (1) LLJ 111, when
there are two forums open to the employees, rejecting them or directing them
to approach the authority under the Tamil Nadu Co~operative Societies Act,
1983, cannot be correct. In the present cases on hand as the relief sought is
for a differential amount based on a settlement, they can approach the Labour
Court as there is no time limit for an employee to get the issue redressed
under Section 33 (C ) (2) of the Industrial Disputes Act, 1947. If there is any
dispute, the employee will have to raise the dispute with the help of the Act
and if there is any pre-existing right as claimed by the workman, an
application under Section 33(C ) (2) of the Industrial Disputes Act is
maintainable. The Supreme Court has categorically held that the remedy
under the Payment of Gratuity Act alone can be availed if the employees
restricted claiming gratuity payable under the Payment of Gratuity Act. When
the claim is based on a settlement, Allahabad Bank case will apply and the
issue with regard to the interpretation of Section 4(5) of the Payment of
Gratuity Act has not been considered.
11. In view of the aforesaid discussions and in the light of the
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Review Application Nos.9 to 12 of 2024
judgment in Allahabad Bank case which has been followed by one of us in
the order dated 25.07.2019 in W.P.Nos.21456 and 23449/2013, the Writ
Appeals stand dismissed. However, liberty is given to the employees to
redress the grievance either availing the remedy under the Co~operative
Societies Act, 1983 or under the Industrial Disputes Act, 1947. No costs.
Consequently, connected Miscellaneous Petitions are closed.”
3 The sum and substance of the stand taken in these review
applications is that in terms of Section 4(5) of the Payment of Gratuity Act,
1972 (for brevity “the 1972 Act”) in case, the employees are going to get
better benefits, they cannot be prevented from approaching the authority
under the 1972 Act.
4 Mr. G. Sankaran, learned Senior Counsel appearing for the
applicants, alluded to a Coordinate Bench judgment of this Court in
N.Ponmudi and 50 others v Villupuram District Central Cooperative
Bank Ltd.1, in which, one of us (SVNJ) was a member, wherein, adverting to
the judgment of the Supreme Court in Nirchiliya v The Management of
Safire Theatre2, it was held that when there are two fora, it is open to the
employees to choose one of the fora available to them and having remedy
under the 1972 Act as well as the Tamil Nadu Cooperative Societies Act, it is
open to the employees to choose one and the employees are right in moving
the authority under the 1972 Act for getting better benefits in terms of Section
2 1991 (1) LLJ 111 (SC)
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Review Application Nos.9 to 12 of 2024
4(5) of the 1972 Act.
5 A reading of the judgment in N. Ponmudi, supra, more so
paragraph 11 thereof, would make it clear that it was held that there is no
evidence to show that the management is giving far better benefits than what
have been provided for under the 1972 Act to drive the employees to get the
relief invoking Section 153 or 154 of the Tamil Nadu Cooperative Societies
Act. Thus, only such a circumstance, this Court held that the employees were
right in getting benefits as per the Act before the authority under the said Act.
In the case on hand, the employees are seeking better benefits invoking
Section 4(5) of the 1971 Act. In support of his contention, the learned Senior
Counsel relied on paragraph 46 of the judgment of the Supreme Court in
Allahabad Bank and another v All India Allahabad Bank Retired
Employees Association3, which reads as under;
“46. [Ed.: Para 46 corrected vide judgment dated 13-3-
2013.]Judgment is, however, applicable to all the members of the petitioner's
Association/pensioners in the respondent Bank governed by the Pension
Regulations (Old), 1890 of the Bank as well as those pensioners who retired
during the period 1-1-1986 to 31-10-1993. It is made clear that such of those
officers of the Bank working prior to 1-7-1979 and have retired after coming
into force of the said Act on 31-10-1993, shall alone be entitled for the
benefits.”
But, be it noted, in the same judgment, at paragraph nos. 31 and 31, it was
held as under:
“30. The submission is totally devoid of any merit for more than
one reason, namely, that it is for the appropriate Government to form the
3 (2010) 2 SCC 44
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Review Application Nos.9 to 12 of 2024
requisite opinion that the employees were in receipt of gratuity or pensionary
benefits which were more favourable than the benefits conferred under the
Act and therefore, the establishment must be exempted from the operation of
the provisions of the Act. The Bank having failed to obtain exemption from
the operation of the provisions of the Act cannot be permitted to raise this
plea.
31. No establishment can decide for itself that employees in such
establishments were in receipt of gratuity or pensionary benefits not less
favourable than the benefits conferred under the Act. Sub-section (5) of
Section 4 protects the rights of an employee to receive better terms of gratuity
from its employer under any award or agreement or contract as the case may
be. Admittedly, the Scheme under which the employees of the Bank received
the pension was in lieu of gratuity. There is no question of comparing the said
Scheme and arrive at any conclusion that what they have received was much
better in terms than the benefits conferred under the Act. Reliance upon sub-
section (5) of Section 4 is therefore unsustainable.”
6 A reading of the above extracted portion would make it clear that
when the employees are going to get better benefits in terms of Section 4(5) of
the 1972 Act, they cannot approach the authority under the 1972 Act. We are
bound by the said judgment till the same governs the field, in the light of the
judgment of the Supreme Court in General Manager, Telecom v A.
Srinivasa Rao and others 4, wherein, it was categorically held as under:
“7. A two-Judge Bench of this Court in Theyyam Joseph case
[(1996) 8 SCC 489] held that the functions of the Postal Department are part
of the sovereign functions of the State and it is, therefore, not an “industry”
within the definition of Section 2(j) of the Industrial Disputes Act, 1947.
Incidentally, this decision was rendered without any reference to the seven-
Judge Bench decision in Bangalore Water Supply [(1978) 2 SCC 213 : 1978
SCC (L&S) 215] . In a later two-Judge Bench decision in Bombay
Telephone Canteen Employees' Assn. case [(1997) 6 SCC 723 : AIR 1997
SC 2817] this decision was followed for taking the view that the Telephone
Nigam is not an “industry”. Reliance was placed in Theyyam Joseph case
[(1996) 8 SCC 489] for that view. However, in Bombay Telephone Canteen
Employees' Assn. case [(1997) 6 SCC 723 : AIR 1997 SC 2817] (i.e. the
latter decision), we find a reference to the Bangalore Water Supply case
4 (1997) 8 SCC 767
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Review Application Nos.9 to 12 of 2024
[(1978) 2 SCC 213 : 1978 SCC (L&S) 215] . After referring to the decision
in Bangalore Water Supply [(1978) 2 SCC 213 : 1978 SCC (L&S) 215] it
was observed that if the doctrine enunciated in Bangalore Water Supply
[(1978) 2 SCC 213 : 1978 SCC (L&S) 215] is strictly applied, the
consequence is “catastrophic”. With respect, we are unable to subscribe to
this view for the obvious reason that it is in direct conflict with the seven-
Judge Bench decision in Bangalore Water Supply case [(1978) 2 SCC 213 :
1978 SCC (L&S) 215] by which we are bound. It is needless to add that it is
not permissible for us, or for that matter any Bench of lesser strength, to take
a view contrary to that in Bangalore Water Supply [(1978) 2 SCC 213 : 1978
SCC (L&S) 215] or to bypass that decision so long as it holds the field.
Moreover, that decision was rendered long back — nearly two decades
earlier and we find no reason to think otherwise. Judicial discipline requires
us to follow the decision in Bangalore Water Supply case [(1978) 2 SCC 213
: 1978 SCC (L&S) 215] . We must, therefore, add that the decisions in
Theyyam Joseph [(1996) 8 SCC 489] and Bombay Telephone Canteen
Employees' Assn. [(1997) 6 SCC 723 : AIR 1997 SC 2817] cannot be
treated as laying down the correct law. This being the only point for decision
in this appeal, it must fail.” (emphasis supplied)
7 Further, it would be relevant to refer to a few judgments of this
Court as also the Supreme Court to understand and appreciate the scope of
review jurisdiction to find out if the applicants have made out a case for
review.
8 In The Special Officer, Kallal Co-operative Primary
Agricultural and Rural Development Bank Ltd., Karaikudi, Sivagangai
District v R.M.Rajarathinam and Others5, a Coordinate Bench of this
Court held as follows:
“10... It is well settled that the scope of review is very limited.
The review applicant cannot re-argue and he is not entitled for re-
5 Review Application (MD). No.82 of 2013 decided on 04.02.2015
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Review Application Nos.9 to 12 of 2024
hearing on merits.”
9 In Dhanalakshmi v M.Shajahan and others6, yet another
Coordinate Bench of this Court has opined that the power of review is not an
appeal in disguise. The relevant paragraphs of the said order are extracted
below for ease of reference:
"11. From the above judgments, it is seen that the law is well
settled inasmuch as the power of review is available only when there
is an error apparent on the face of the record and not on erroneous
decision. If the parties aggrieved by the judgment on the ground that it
is erroneous, remedy is only questioning the said order in appeal. The
power of review under Order 47 Rule 1 C.P.C. may be opened inter
alia only if there is a mistake or an error apparent on the face of the
record. The said power cannot be exercised as is not permissible for
an erroneous decision to be "reheard and corrected". A review
application also cannot be allowed to be "an appeal in disguise".
Similarly, the error apparent on the face of the record must be such
an error, which must strikes one on mere looking at record and would
not require any long drawn process of reasoning on points, where
there may conceivably be two opinions.”
(emphasis supplied)
10 Superadded, in R.Mohala v M.Siva and others7, one of us
(SVNJ,) elaborately discussed the scope of review. The relevant paragraphs
from the said order read as under:
“7. The basic principle to entertain the review under Order 47
Rule 1 C.P.C. is to correct the errors but not to substitute a view. The
judgment under review cannot be reversed (or) altered taking away the
rights declared and conferred by the Court under the said judgment; once a
judgment is rendered, the Court becomes functus officio and it cannot set
aside its judgment or the decree; no inherent powers of review were
conferred on the Court; the review Court cannot look into the trial Court
judgment; it can look into its own judgment for limited purpose to correct
any error or mistake in the judgment pointed out by the review petitioner
without altering or substituting its view in the judgment under review; the
6 AIR 2004 Madras 512
7 Review Petition No.61 of 2018 and WMP.No.10818 and 10819 of 2018 decided on 25.04.2018,
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Review Application Nos.9 to 12 of 2024
review court cannot entertain the arguments touching the merits and
demerits of the case and cannot take a different view disturbing the finality
of the judgment; the review cannot be treated as appeal in disguise, as the
object behind review is ultimately to see that there should not be miscarriage
of justice and shall do justice for the sake of justice only and review on the
ground that the judgment is erroneous cannot be sustained.
8. It is settled law that even an erroneous decision cannot be a
ground for the Court to undertake review, as the first and foremost
requirement of entertaining a review petition is that the order under review
of which is sought, suffers from any error apparent on the face of the order
and in absence of any such error, finality attached to the judgment/order
cannot be disturbed.” (emphasis supplied)
11 The Supreme Court, in Meera Bhanja v Nirmala Kumari
Choudhury8, while considering the scope of the power of review of the High
Court under Order 47, Rule 1, C.P.C., held as follows:
"The review proceedings are not by way of an appeal and have to be
strictly confined to the scope and ambit of Order 47, Rule 1 C.P.C. The
review petition of error apparent on the face of the record and not on any
other ground. An error apparent on the face of the record must be such an
error which must strike one on mere looking at the record and would not
require any longdrawn process of reasoning on points where there may
conceivably be two opinions. The limitation of powers on court under Order
47, Rule 1, C.P.C. is similar to jurisdiction available to the High Court while
seeking review of the orders under Article 226."
12 In Parsion Devi v Sumitri Devi9, the Supreme Court held as
follows:
"Under Order 47, Rule 1, CPC 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 which 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 47, Rule 1, CPC. In exercise of the jurisdiction under Order
47, Rule 1, CPC, it is not permissible for an erroneous decision to be
8 (1995) 1 SCC 170
9 1997 (8) SCC 715
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Review Application Nos.9 to 12 of 2024
"reheard and corrected". A review petition, it must be remembered has a
limited purpose and cannot be allowed to be "an appeal in disguise."
(emphasis supplied)
In view of the foregoing discussion, these review applications fail and
are accordingly dismissed, sans costs. Connected C.M.Ps. are closed.
(S.V.N., J.) (R.K.M., J.)
04.01.2024
cad
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Review Application Nos.9 to 12 of 2024
S. VAIDYANATHAN, J.
and
R. KALAIMATHI, J.
cad
To
1 The Managing Director (previously, the Special Officer)
Vellore District Central Cooperative Bank Ltd.
3, Officer's Line
Vellore 632 001
2 The Joint Commissioner of Labour/
Appellate Authority under the Payment of Gratuity Act
VI Floor, DMS Compound
Teynampet, Chennai 600 006
3 The Assistant Commissioner of Labour-I/
Controlling Authority under the Payment of Gratuity Act
VI Floor, DMS Compound
Teynampet, Chennai 600 006
Review Application Nos.9 to 12 of 2024
04.01.2024
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