K.K. Rajesh v. State of Kerala, Industrial Tribunal, Peerumedu, Idukki District and India Coffee Board Workers Co-operative Society Ltd

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 25TH DAY OF MAY 2018 / 4TH JYAISHTA, 1940** **RP.No. 188 of 2018** **------------------** ## **JUDGMENT IN WP(C) 22447/2012 DATED 09-08-2016.** **.......** ## **PETITIONER/2ND RESPONDENT:** ## **-------------------------** **K.K. RAJESH AGED 38 YEARS, S/O. KUMARAN, KADALIKKATTIL HOUSE, AVITTATHOOR P.O - 680 683, IRINJALAKUDA, THRISSUR.** ## **BY ADV.SRI.DILEEP VARGHESE** ## **RESPONDENT(S)/1ST & 3RD RESPONDENT, PETITIONER:** ## **-----------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF LABOUR & REHABILITATION(A), SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. INDUSTRIAL TRIBUNAL, PEERUMEDU,IDUKKI DISTRICT.** **3. INDIA COFFEE BOARD WORKERS CO-OPERATIVE SOCIETY LTD NO. 4227, P.B NO. 184, THRISSUR, PIN - 680 001, REPRESENTED BY ITS SECRETARY, VARGHESE, S/O. THOMAS** **R1 & R2 BY SENIOR GOVERNMENT PLEADER SRI.SAIGI JACOB PALATTY R3 BY ADV.SRI.V.RAJENDRAN (PERUMBAVOOR)** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 25-05-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** **RP.No. 188 of 2018** **------------------** **APPENDIX** ## **PETITIONERS' ANNEXURES:** ## **-----------------------** ## **ANNEXURE I :** **CERTIFIED COPY OF THE JUDGMENT IN WPC.NO.22447 OF 2017 OF THIS HONOURABLE COURT DATED 9.8.2016.** **RESPONDENTS' ANNEXURES: NIL** **-----------------------** **/TRUE COPY/** **P.S.TO JUDGE** **mbr/ 29.05.2018.** ## **ALEXANDER THOMAS, J.** ## ================== R.P.No. 188/2018 in W.P.(C).No. 22447/2012 ================== Dated this the 25[th] day of May, 2018 ## **O R D E R** This is a petition seeking to review the impugned judgment dated 9.8.2016 rendered by this Court in W.P.(C).No.22447/2012. The said impugned judgment in the W.P.(C) was rendered by this Court on the basis of the dictum laid down by a Larger Bench this Court in the case _**Chirayinkeezhu Service Co-operative Bank Ltd. v. Santhosh**_ (W.A.No.2516/2009 and connected cases, common judgment dated 14.9.2015) reported in 2015 (4) KLT 163 (L.B). Later, the Apex Court in the case in _**K.A.Annamma v. Secretary, Cochin Co-operative Hospital Society Ltd**_ . (judgment dated 12.1.2018) reported in (2018) 2 SCC 729 = 2018 (1) KLT 414(SC) = ILR 2018 (1) Ker.225 = 2018 (1) KHC 258 has overruled the dictum laid down by the Larger Bench of this Court in the case _**Chirayinkeezhu Service Co-operative Bank Ltd's case**_ supra, reported in 2015 (4) KLT 163 (L.B). Hence it is contended by the review petitioner that the abovesaid judgment dated 9.8.2016 rendered by this Court W.P.(C).No.22447/2012 is an error apparent on the face of record inasmuch as it is in violation of the later dictum laid down on the same subject matter by the Apex Court in _**K.A.Annamma's case**_ reported in (2018) 2 SCC 729. R.P.188/18 - : 2 :- 2. Heard Sri.Dileep Varghese, learned counsel appearing for the review petitioner, Sri.V.Rajendran (Perumbavoor) learned counsel appearing for R-3 and Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearance for R-1 & R-2. 3. It is to be noted that this Court has rendered the impugned judgment in the W.P.(C). on 9.8.2016 based on the dictum laid down by the Larger Bench of this Court, which was rendered on 14.9.2015. It was much later after the rendering of the impugned judgment dated 9.8.2016 that the Apex Court in the case in _**K.A.Annamma's case**_ reported in (2018) 2 SCC 729 has overruled the dictum laid down by the Larger Bench in _**Chirayinkeezhu Service Co-operative Bank Ltd's case**_ supra, reported in 2015 (4) KLT 163 (L.B). 4. The provision for review in civil litigative proceedings is regulated by Order XLVII of the C.P.C. The Explanation appended to Order XLVII Rule 2 reads as follows: “ _**Explanation** .- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.”_ The abovesaid Explanation has been introduced as per Sec.92 of the Amendment Act 104 of 1976 and made effective from 1.2.1977. 5. It is now well established by a catena of decisions of various High Courts as well as of the Apex Court as in the cases _**Shanti Devi v.**_ R.P.188/18 - : 3 :- _**State of Haryana,**_ reported in (1999) 5 SCC 703, _**Nand Kishore Ahirwar v. Haridas Parsedia,**_ reported in (2001) 9 SCC 325 _**, Pradeep Kumar Maskara v. State of W.B.,**_ reported in (2015) 2 SCC 653, etc. that the mere aspect that the question of law on the basis of the which the impugned judgment has been rendered, has been subsequently reversed or modified by the subsequent judgment of a superior forum in any other case, shall not be a ground for review of such judgment. 6. Sri.Dilpeep Varghese, learned counsel appearing for the review petitioner has placed reliance on the judgment of a 3-Judge Bench decision of the Apex Court in the _**State of Kerala v. P.K.Syed Akbar Sahib**_ , reported in AIR 1988 SC 702. A perusal of the said judgment of the Apex Court in the _**P.K.Syed Akbar Sahib's case**_ supra would make it clear that therein the High Court had ordered refund of tax on the ground that taxing statute and Validation Act were declared ultra and invalid. Subsequently, Validation Act was declared valid and consequent review petition filed by the Government was held to be maintainable and was held to be entitled to be allowed. The facts therein would make it clear that the impugned judgment therein was rendered on 1.1.1969, whereby the High Court had held that the Travancore Tobacco Act I of 1087 M.E. was invalid and ordered refund of a sum of Rs. 30,500/- collected as licence fees under the said Act during the relevant period. The review petition therein was R.P.188/18 - : 4 :- instituted by the appellant State on the ground that the Validation Act 9 of 1964, whereby the Travancore Tobacco Act I of 1087 M.E. was validated with respective effect, has been held to be constitutional by a Division Bench of the High Court subsequently. It is clear from a reading of the facts therein that on the date on which the High Court had rendered the impugned judgment on 1.1.1969 (which was sought to be reviewed) the Validation Act 9 of 1964 was already in force. Thus it can be seen that therein the contention was not on the basis of subsequent change in judicial case law, but that the very basis of the legislation, which was impugned in the original proceedings, was cured by way of Validation Act and the said Validation Act was subsequently held to be constitutionally valid in subsequent judicial proceedings. Moreover, the Validation Act has already come into force on the day in which the impugned judgment was rendered on 1.1.1969. Therefore, the ground on the basis of which the Apex Court had held that review is allowable as there was subsequent change of legislative law, which was already in force even at the time of the date of the rendering of the impugned judgment and that therefore it was only to be held in any view of the matter that the impugned judgment suffered from an error apparent on the face of record and therefore the same was a classic legal ground to review that case. Though the High Court had held therein that the review was not maintainable, the said position was reversed by the R.P.188/18 - : 5 :- Apex Court in the abovesaid judgment in _**P.K.Syed Akbar Sahibi's case**_ reported in AIR 1988 SC 702. The legal principle laid down by the Apex Court in _**P.K.Syed Akbar Sahibi's case**_ reported in AIR 1988 SC 702, has no application whatsoever to the facts of this case. 7. The contentions urged in that decision are fully covered against the petitioner by virtue of the statutory provision engrafted in the Explanation appended to Rule 2 of Order XLVII CPC and in view of the aforecited case law. Therefore the contentions are not maintainable merely because the Apex Court had later overruled the dictum laid down by the Larger Bench of this Court. The remedy of the review petitioner is to file an intra-court appeal so as to impugn the correctness of the impugned judgment dated 9.8.2016 rendered by this Court in W.P.(C).No. 22447/2012 on the contention that the dictum laid down by the Larger Bench of this Court has been subsequently overruled by the Apex Court, etc. 8. Faced with this situation, Sri.Dileep Varghese, learned counsel appearing for the petitioner would submit that this Court may direct the Registry to return back the certified copy of the impugned judgment dated 9.8.2016 in W.P.(C).No. 22447/2012 so as to enable the petitioner to file Writ Appeal in the matter on the basis of the said certified copy. In the light of this submission made by the learned counsel for the petitioner, it is R.P.188/18 - : 6 :- ordered that the Registry will return back the certified copy of the said judgment to the petitioner's counsel in case a request is made. However, the Registry will ensure that a photocopy of the said judgment is placed in the case file of this Review Petition. 9. Sri.Dileep Varghese, learned counsel appearing for the petitioner submits that the petitioner was bona fide prosecuting this Review Petition on the ground that he has valid contentions in view of the judgment of the Apex Court and that now there is delay to file writ appeal as against the impugned judgment dated 9.8.2016 and this Court may clarify that the pendency period in this Review Petition could be taken up as a ground for exclusion of time as envisaged under Sec.14 of the Limitation Act. Having regard to this aspect of this matter, this Court is only observing that it is for the petitioner to urge all his contentions including the abovesaid contention before the appellate forum as and when he moves for that remedy. With these observations and directions, the above Review Petition will stand dismissed. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** ///True Copy/// ## P.S. to Judge