Joju J Mangaly v. State of Kerala and Others (Review Petition No. RP 373 of 2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 29[TH] DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943** ## **R.P. NO.373 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 6102/2018 OF HIGH COURT OF** ## **KERALA** ## **REVIEW PETITIONER:** **JOJU.J.MANGALY AGED 57 YEARS SON OF LATE JOSE K MANGALY, RESIDING AT HOUSE NO. 33 548 D NEW NO. 13-1865 OPP. ARCHANA FARM, A.R. CAMP ROAD, MARIKUNNU P.O., KOZHIKODE 673 012** **BY ADV JACOB ABRAHAM** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, COOPERATION DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM 695 001.** - **2 REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM 695 001.** - **3 KERALA CO- OP MILK MARKETING FEDERATION LIMITED REPRESENTED BY ITS MANAGING DIRECTOR, MILMA BHAVAN, PATTOM PALACE P.O., THIRUVANANTHAPURAM.** - **4 MALABAR REGIONAL CO-OP MILK PRODUCERS UNION LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, PERINGOLOM, KUNNAMANGALAM P.O., KOZHIKODE 673 571.** - **5 DIRECTOR, DAIRY DEVELOPMENT DEPARTMENT, PATTOM PALACE P.O., THIRUVANANTHAPURAM 695 004. BY ADV SMT.LATHA ANAND** - **SRI. JOBY JOSEPH ( GP)** - **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON** - **29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 RP No.373 OF 2019 ## **ORDER** The petitioner has filed this review petition under Order XLVII Rule 1 of the Code of Civil Procedure, 1908, seeking review of the judgment of this Court dated 08.10.2018 in W.P. (C)No.6102 of 2018, whereby that writ petition was disposed of noticing the fact that the judgment of the Full Bench of this Court in **Chandrasekharan Nair G. and others v. Kerala State Co-operative Agricultural and Rural Development Bank Ltd. and others [2017 (5) KHC 15]** is affirmed by the Apex Court in SLP (C) No.9446-9451 of 2018, after notice to the other side on admission. 2. In W.A.No.524 of 2018 and connected cases dated 12.07.2018), a Division Bench of this Court, after referring to the law laid down by the Full Bench in **Chandrasekharan Nair** , held that, in view of the second proviso, with regard to societies to which the Payment of Gratuity Act, 1972, is applicable, in view of Section 4(5) thereof, if a better term of gratuity is available, the restriction under the first proviso does not apply. However, in cases of societies to which the Payment of Gratuity Act is not applicable, since there is no provision in the Co-operative Societies Act or Rules akin to Section 4(5) of 3 RP No.373 OF 2019 the Gratuity Act, the maximum amount payable cannot in view of the first and second provisos, exceed fifteen months pay as stipulated in first proviso even if any special scheme has been opted by the society for payment of gratuity. The Division Bench held further that, when the eligibility of the respective employees, who are the writ petitioners, to claim gratuity is not under challenge, the employees need not be relegated for a further adjudication proceedings under Section 7 of the Payment of Gratuity Act. The Division Bench has also held - that, though non payment gratuity was in view of the circulars - in vogue and on a bonafide mis interpretation of law, the omission could not be considered wilful or deliberate. However, since the amounts due to the employees were in the hands of the employers who were enjoying the benefit of the same they are bound to pay simple interest at the rate of 6% per annum. Paragraphs 5 to 8 of the said judgment read thus; - “5. Sub Rule (iii) to Rule 59 of The Kerala Co-operative Societies Rules and the provisos thereto read as follows:- - “(iii) when an employee who has put in at least 5 years satisfactory service is retired voluntarily from service or if he is permanently disabled while in service or if he dies while in service the society shall 4 RP No.373 OF 2019 pay to him or to his legal heirs as the case may be a gratuity not exceeding half months pay for every completed year of service. Provided that in no case shall the gratuity exceed fifteen months pay. Provided further that the amount of gratuity payable shall not exceed the amount which an employee is eligible as per the Payment of Gratuity Act, 1972 (Central Act 39 of 1972) or under the Act and these Rules, whichever is applicable irrespective of the amount received out of any scheme chosen or implemented by a society for the purpose.” The first proviso puts a cap on the maximum amount of gratuity payable. The second proviso provides that, notwithstanding any scheme chosen by the Bank, as regards societies covered by the Gratuity Act, the maximum amount payable will be the eligible amount under the Gratuity Act; as regards societies covered by the Societies Act, the maximum amount payable shall be the maximum amount eligible under that Act. Interpreting the second proviso, the Full Bench held that, in cases where the Gratuity Act applies, in view of Section 4(5) thereof, the entire amount due under the Scheme shall be payable to the employee. Section 4(5) of the Gratuity Act acknowledges the right of the employee to receive better terms of gratuity irrespective of the restrictions regarding the quantum fixed in Section 4 of that Act. Therefore, as held by the Full Bench, in view of the second proviso, with regard to societies to which the Payment of Gratuity Act is applicable, in view of Section 4(5) thereof, if a better term of gratuity is 5 RP No.373 OF 2019 available, the restriction under the first proviso does not apply. However, in cases of societies to which the Payment of Gratuity Act is not applicable, since there is - no provision in the Co operative Societies Act or Rules akin to Section 4(5) of the Gratuity Act, the maximum amount payable cannot in view of the first and second provisos, exceed fifteen months pay as stipulated in first proviso even if any special scheme has been opted by the society for payment of gratuity. 6. To put it pithily, if the Payment of Gratuity Act is applicable, in view of Section 4(5) of the said Act, the employee shall be entitled to the entire amounts due under the special terms of gratuity irrespective of any restriction regarding the quantum and in cases of societies not covered by the Central Act, the restriction under the first proviso applies irrespective of the availability of any scheme. 7. As regards the contention regarding adjudication, the only issue that has arisen for determination in these writ appeals is the right of the employees to receive the better terms of gratuity in terms of the LIC scheme. In none of these cases, the very eligibility of the respective - employees writ petitioners to claim gratuity is challenged. Under such circumstances, we do not think that they are to be relegated for a further adjudicatory proceeding under Section 7 of the Gratuity Act. 8. As regards the liability to pay interest, as contended by the appellants, the nonpayment was in view of the circulars in vogue and on a bonafide misinterpretation of the law. Though Section 7 and 8 of the Gratuity Act 6 RP No.373 OF 2019 - provide for payment of interest for non payment of gratuity within the time stipulated, the omission could not be considered wilful or deliberate. Hence they need not be burdened with the liability for interest at the rates as prescribed under the Gratuity Act. However, the fact remains that the amounts due to the employees were in the hands of the appellants and they were enjoying the benefit of the same. They are bound to pay it to the employees with reasonable interest. We fix the rate of ” interest at 6% per annum, simple interest. (underline supplied) 3. On 08.10.2018, when W.P.(C)No.6102 of 2018 was taken up for consideration, the learned counsel for respondents 3 and 4 submitted that the 4[th] respondent Co-operative Milk Producers' Union has already taken a decision to disburse the balance gratuity amounting to Rs.18,87,065/- payable to the petitioner, within one month. 4. In such circumstances, by the judgment dated 08.10.2018, this Court disposed of W.P.(C)No.6102 of 2018, in terms of the submission made by the learned counsel for the 4[th] respondent that the balance gratuity payable to the petitioner amounting to Rs.18,87,065/- shall be disbursed to the petitioner, within a period of one month. In view of the judgment of the Division Bench in W.A.No.524 of 2018 and 7 RP No.373 OF 2019 connected cases, this Court held that the petitioner will be entitled to interest for delayed payment of gratuity at the rate of 6% per annum from the date on which the amount of gratuity was released to the 4th respondent Bank by the Life Insurance Corporation of India. 5. In the review petition, the petitioner would contend that the petitioner is entitled for disbursement of the balance gratuity amount together with interest at the rate 9% per annum, instead, interest at the rate 6% fixed in the judgment sought to be reviewed, which is erroneous. 6. The 4[th] respondent Co-operative Milk Producers' Union has filed a statement and the petitioner has also filed a reply affidavit. 7. Heard the learned counsel for the review petitioner, the learned Government Pleader for respondents 1 to 3 and 5 and also the learned Standing Counsel for the 4[th] respondent. 8. In the judgment sought to be reviewed, this Court fixed the rate of interest as 6%, following the law laid down by the Full Bench of this court in **Chandrasekharan Nair G. [2017 (4) KLT 276]** , wherein the Full Bench held that, - though non payment gratuity was in view of the circulars in 8 RP No.373 OF 2019 - vogue and on a bonafide mis interpretation of law, the omission could not be considered wilful or deliberate. However, since the amounts due to the employees were in the hands of the employers who were enjoying the benefit of the same they are bound to pay simple interest at the rate of 6% per annum. 9. In **Thungabhadra Industries Ltd v. Government of Andhra Pradesh [AIR 1964 SC 1372]** the Apex Court held that, review is, by no means an appeal in disguise, whereby an erroneous decision is reheard and corrected, but lies only for correcting patent errors. 10. 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 of Civil Procedure, 1908 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 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 XLVII, Rule 1 of the Code. In exercise of the jurisdiction under Order XLVII, Rule 1 of the Code, it is not permissible for an erroneous decision to 9 RP No.373 OF 2019 be 'reheard and corrected'. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'. 11. 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 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 rehearing of the matter on merits. 12. In view of the law laid down by the Apex Court in the decisions referred to supra, the review jurisdiction under Order XLVII, Rule 1 of the Code is very limited and unless there is mistake or error apparent on the face of the record, the judgment does not call for review. Further, whilst exercising such power of review, the Court cannot be oblivious of the provisions contained in Order XLVII, Rule 1 of the Code and that the limits within which the Courts can exercise the power of review have been well settled in a catena of decisions. 10 RP No.373 OF 2019 13. Viewed in the light of the law laid down by the Apex Court in the decisions referred to supra, none of the grounds raised in this review petition fall within the ambit and scope of Order XLVII, Rule 1 of the Code. In the result, the review petition fails and the same is accordingly dismissed. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 11 RP No.373 OF 2019 ## **APPENDIX** ## **REVIEW PETITIONERS' ANNEXURES:** |**ANNEXURE A1**|**TRUE COPY OF PROCEEDINGS**| |---|---| ||**NO.MRU:PER:15:92:IV/1344 DATED**| ||**25.10.2018 OF THE MANAGING DIRECTOR IN**| ||**CHARGE OF THE 4TH RESPONDENT.**| |**ANNEXURE A2**|**TRUE COPY OF PROCEEDINGS**| ||**NO.MRU:PER:15:92:IV/1377 DATED**| ||**30.10.2018 OF THE MANAGING DIRECTOR IN**| ||**CHARGE OF THE 4TH RESPONDENT.**| |**ANNEXURE A3**|**TRUE COPY OF PROCEEDINGS**| ||**NO.MRU:PER:15:92:IV/223 DATED**| ||**16.02.2019 OF THE MANAGING DIRECTOR IN**| ||**CHARGE OF THE 4TH RESPONDENT.**| |**ANNEXURE A4**|**TRUE COPY OF THE REPLY DATED**| ||**07.03.2019 ISSUED BY THE PETITIONER TO**| ||**THE MANAGING DIRECTOR OF THE 4TH**| ||**RESPONDENT.**|