Arunkumar P.S. & Dimple @ Dimple Baby v. Life Insurance Corporation of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 7TH DAY OF MARCH 2017/16TH PHALGUNA, 1938 R.P.No.178 of 2017 IN W.A.No.1759/2016 --------------------------------------- AGAINST THE JUDGMENT IN W.A.No.1759/2016 OF HIGH COURT OF KERALA DATED 10.1.2017 REVIEW PETITIONERS/RESPONDENTS IN WA/ PETITIONERS IN W.P.(C)No.17594/2015(Y): ------------------------------------- 1. ARUNKUMAR P.S. AGED 29 YEARS, S/O.P.K.SIVASANKARAN NAIR, PATTARAMADATHIL HOUSE, KADAYIRUPPU P.O., KOLENCHERRY, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 2. DIMPLE @ DIMPLE BABY, - AGED 37 YEARS, W/O.BABY P.M. @ MATHAI P.M., PANDARAPARAMBIL HOUSE, KOLENCHERRY PO, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. BY ADVS.SRI.P.S.RAMACHANDRAN PILLAI SRI.ANIL KUMAR M.SIVARAMAN RESPONDENTS/APPELLANTS IN WA/ RESPONDENTS IN W.P.(C)No.17594/2015(Y): -------------------------------------- 1. LIFE INSURANCE CORPORATION OF INDIA, REPRESENTED BY ITS CHAIRMAN, YOGAKSHEMA, JEEVAN BHEEMA MARG, MUMBAI-400 021. 2. THE SENIOR DIVISIONAL MANAGER, LIC OF INDIA, M.G.ROAD, ERNAKULAM-682011. 3. THE SENIOR BRANCH MANAGER, LIC OF INDIA, THRIPOONITHURA-682 001. 4. THE BRANCH MANAGER, LIC OF INDIA, KOLENCHERRY-682 311. ## BY SRI.S.EASWARAN THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 07-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.P.No.178 of 2017 IN W.A.No.1759/2016 ## APPENDIX PETITIONERS' ANNEXURE:- ANNEXURE -1 : COPY OF JUDGMENT DATED 10.1.2017 IN W.A.No.1759/2016 OF THIS COURT. True copy P.A to Judge ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** **-----------------------------------------------------R.P.No.178 of 2017 in W.A.No.1759 of 2016 -----------------------------------------------------Dated this the 7[th] day of March, 2017** ## **ORDER** ## **Anil K.Narendran, J.** This Review Petition arises out of the judgment of this Court dated 10.1.2017 in W.A.No.1759 of 2016. The said writ appeal was filed by the respondents herein against the judgment of the learned Single Judge dated 15.6.2016 in W.P.(C)No.17594 of 2015. The petitioners herein filed the said writ petition seeking a writ of mandamus commanding the respondents to absorb and regularise them in appropriate permanent available posts considering that they are qualified and they have entered into service in the year 2007, within the prescribed age limit. 2. After considering the rival contentions, the learned Single Judge disposed of the writ petition by judgment dated 15.6.2016, observing that, when the petitioners are raising their claims under the provisions contained in the Industrial Disputes Act, 1947 and the respondents also submit that the remedy is under the said Act, and when there is a statutory forum to adjudicate their claims under the said Act there is no meaning in keeping the writ petition pending 2 R.P.No.178 of 2017 in W.A.No.1759 of 2016 before this Court. Therefore, it was held that, the petitioners are free to approach the competent authorities to ventilate their grievances, as provided under the Industrial Disputes Act. 3. When it was pointed out that, during the pendency of the writ petition, the petitioners have been disengaged, the learned Single Judge observed that, in case the disengagement of the petitioners is not for accommodating those appointed on regular or temporary basis, they shall be permitted to continue in the same manner as they were being engaged till their disengagement after the filing of the writ petition. In case temporary appointment is being made the petitioners shall also be considered, with due preference towards experience and if necessary granting relaxation from upper age limit. 4. Feeling aggrieved by the aforesaid direction contained in paragraph 8 of the judgment of learned Single Judge, the respondents herein approached this Court in W.A.No.1759 of 2016. 5. After considering the rival contentions, this Court found that, the question as to whether the petitioners are entitled for regularisation is a disputed question of fact, which could only be decided in an appropriate proceedings under the Industrial Disputes 3 ## R.P.No.178 of 2017 in W.A.No.1759 of 2016 Act. Therefore, the learned Single Judge rightly observed that the petitioners are free to approach the competent authorities to ventilate their grievances, as provided under the said Act. Since, during the pendency of the writ petition, the petitioners were disengaged with effect from 7.8.2015 and no orders were passed in I.A. No.13149 of 2015 which was filed seeking an order for their re-engagement, this Court held that, once it is found that the remedy open to the petitioners is to raise dispute under the provisions of the Industrial Disputes Act, the learned Single Judge should not have issued the directions contained in paragraph 8 of the judgment to permit them to continue in the same manner as they were being engaged till their disengagement and also to give them preference in the matter of temporary appointment. Accordingly, the writ appeal was disposed of deleting the aforesaid directions contained in paragraph 8 of the judgment of learned Single Judge. 6. Now the petitioners are before this Court in this Review Petition under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 seeking review of the judgment of this Court dated 10.1.2017 in W.A.No.1759 of 2016, contending that there is error apparent on the 4 R.P.No.178 of 2017 in W.A.No.1759 of 2016 face of the record warranting review of the said judgment. 7. Heard the learned counsel for the review petitioners and also the learned counsel for the respondents. 8. The learned counsel for the review petitioners contend that, deletion of the directions contained in paragraph 8 of the judgment of the learned Single Judge created a vacuum during the pendency of the adjudication of the rights of the petitioners before the competent authority under the Industrial Disputes Act and as such there is error apparent on the face of the record, warranting interference under Order XLVII Rule 1 of the Code. Since the disengagement of the petitioners is illegal and void ab-initio, this Court ought not to have deleted the directions contained in paragraph 8 of the judgment, especially when the respondents have not chosen to file any objections to I.A. No.13149 of 2015. 9. It is not in dispute that, during the pendency of the writ petition, the petitioners were disengaged with effect from 7.8.2015. Though the petitioners filed I.A. No.13149 of 2015 seeking an order for their re-engagement, they could not obtain any orders for reengagement till the learned Single Judge disposed of the writ petition 5 R.P.No.178 of 2017 in W.A.No.1759 of 2016 by the judgment dated 15.6.2016. Therefore, once it is found that the remedy open to the petitioners is to raise dispute under the provisions of the Industrial Disputes Act, the learned Single Judge should not have issued the directions contained in paragraph 8 of the judgment to permit them to continue in the same manner as they were being engaged till their disengagement and also to give them preference in the matter of temporary appointment. 10. In **Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715]** the Apex Court held that, there is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter can be corrected by exercise of the review jurisdiction. Later, in **Lily Thomas** **v. Union of India [(2000) 6 SCC 224]** the Apex Court held that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. 11. From the grounds raised in this review petition, it is evident that the petitioners want to this Court to invoke the review jurisdiction R.P.No.178 of 2017 in W.A.No.1759 of 2016 6 in order to re-agitate the issue already decided in W.A.No.1759/2016, which is legally impermissible in a review petition filed under Order XLVII Rule 1 of the Code. In that view of the matter, we find absolutely no grounds to entertain this review petition. In the result, this review petition fails and the same is accordingly dismissed. Sd/- **C.T.RAVIKUMAR, JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** skj True copy P.A to Judge