K.M. Narayanan, K. Jayarajan, and T.R. Ravi v. Kasargode District Co-operative Bank, Life Insurance Corporation of India, and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 11TH DAY OF FEBRUARY 2020 / 22ND MAGHA, 1941** **RP.No.335 OF 2018 IN WP(C). 27900/2015** **AGAINST THE JUDGMENT IN WPC 27900/2015 OF HIGH COURT OF KERALA DATED 04/12/2017** ## **REVIEW PETITIONERS/PETITIONERS :** - **1 K.M.NARAYANAN S/O.KUNHIKKANNAN, AGED 58, KANNAMPATHI HOUSE, PADINHATTAMKEZHUVAL, NELESWAR P.O.,KASARGODE DISTRICT.** - **2 K.JAYARAJAN S/O.NARAYANAN, SANDRIMA, KARUVACHERY, NILESWAR P.O., KASARGODE DT.** - **3 T.R.RAVI S/O.KANNAN, THAIVALAPPIL KORAMKULAM, UDINOOR PO, KASARGODE DT.** **BY ADVS. SMT.P.SHEEBA SRI.VISHAK.K.JOHNSON** ## **RESPONDENTS/RESPONDENTS:** - **1 KASARGODE DISTRICT CO-OPERATIVE BANK REP BY ITS GENERAL MANAGER, P.B.NO.48, NAYAK'S ROAD, KASARGODE, 671121.** - **2 THE LIFE INSURANCE CORPORATION OF INDIA REP BY ITS SENIOR BRANCH MANAGER, P& GS UNIT, 7TH FLOOR, DIVISIONAL OFFICE, JEEVAN PRAKASH, HUZUR ROAD,KOZHIKODE, 673 001.** - **3 THE STATE OF KERALA REP BY THE SECRETARY TO GOVERNMENT,DEPARTMENT OF CORPORATION, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001.** **R3 BY GOVERNMENT PLEADER SMT.S.L.SHYLAJA** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 11.02.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** RP No.335 of 2018 IN WP(C)No.27900 of 2015 2 ## **O R D E R** The petitioners have filed this review petition under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 seeking an order to review the judgment of this Court dated 04.12.2017 in W.P.(C)No.27900 of 2015, whereby that writ petition was disposed of by directing the 1[st] respondent Bank to pay the respective petitioners the excess amount, if any, received by the Bank from the 2[nd] respondent LIC under the policy of Group Gratuity Scheme, in excess of the amount prescribed under sub-section (2) of Section 4 of the Payment of Gratuity Act. Such amounts, if any, remaining payable shall be computed by the 1[st] respondent Bank and intimated to the respective petitioners within two weeks from the date of receipt of a certified copy of the judgment, and the same shall be disbursed as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of the judgment, together with interest at the rate of 9% per annum from the respective dates on which the said amount has fallen due. 2. Paragraphs 7 to 9 and the operative portion of RP No.335 of 2018 IN WP(C)No.27900 of 2015 3 the said judgment read thus; “7. In **Chandrasekharan Nair's case [2017 (4) KLT 276]** the Full Bench held further that, the wording of the second proviso to Rule 59(iii) of the Rules, of course, gives rise to a doubt that the employee would be pinned down to the amount of gratuity specified in the Central Act. Such an interpretation would render Section 4(5) of the Central Act otiose whereunder the employee has a right to receive better terms of gratuity under any award or agreement or contract with the employer. The provisions of the Central Act or any rule made thereunder shall have effect, notwithstanding anything inconsistent therewith contained in any other enactment or instrument or contract. The overriding effect of the Central Act over other enactments is explicit from Section 14 of the Central Act. The Co-operative Societies wherein the employees are engaged is Entry 32 of List II-State List and gratuity to which a claim is laid is Entry 24 of List III-Concurrent List of the Seventh Schedule to the Constitution of India. The Central Act, which is the law made by the Parliament shall prevail over the law made by the Legislature of the State, i.e., the second proviso to Rule 59(iii) of the Rules. The inconsistency between laws made by Parliament and laws made by the Legislatures of States can be ironed out by calling in aid Article 254 of the Constitution of India. There is no case that the RP No.335 of 2018 IN WP(C)No.27900 of 2015 4 second proviso to Rule 59(iii) of the Rules made by the Legislature of the State has received the assent of the President in order to prevail in the State under Article 254(2) of the Constitution of India. Every amendment to the State Act or the Rules has also to obtain the assent of the President which is absent in regard to the second proviso to Rule 59(iii) of the Rules. Therefore, the irresistible conclusion is that Section 4(5) of the Central Act, which enables an employee to opt for a better term of gratuity will prevail over the second proviso to Rule 59(iii) of the Rules. 8. In **Chandrasekharan Nair's case (supra)** , the Full Bench held that, the second proviso to Rule 59(iii) of the Rules referable to the amount received out of any scheme implemented by a society shall be construed in the context explained above. The employee in other words is entitled to the higher amount if he has opted in terms of Section 4(5) of the Central Act even if a lesser amount is due under Section 4(2) thereof. The Full Bench affirmed the decision of the Division Bench in **Nedupuzha's case [2011 (3) KLT 134)]** to the extent that excess amount, if any, received by the employer under the policy would inure to the employee. The Full Bench noticed that, the said decision does not lay down the proposition that the entitlement of the employee is confined to the amount received under the policy, even if it falls short of the statutory limit, and that, RP No.335 of 2018 IN WP(C)No.27900 of 2015 5 Circular No.5/2016 and similar circulars issued by the Registrar of Co-operative Societies stem out of a misconception of the statutory provisions and are therefore quashed to that extent. The Full Bench has made it clear that, it has dealt with only the case of employees who are both covered under the Central Act and the Rules framed under the State Act, since the Central Act does not apply to all establishments. 9. In view of the law laid down by the Full Bench of this Court in **Chandrasekharan Nair's case (supra)** , an employee of a Co-operative Society, who is covered both under the Payment of Gratuity Act, 1972 and the Kerala Co-operative Societies Rules, 1969 framed under the Kerala Co-operative Societies Act, 1969 is entitled to the higher amount, if he has opted in terms of Section 4(5) of the Payment of Gratuity Act, even if a lesser amount is due under Section 4(2) thereof. Therefore, the excess amount, if any, received by the employer Society under the policy would inure to the benefit of such an employee. In such circumstances, these Writ Petitions are disposed of by directing the 1[st] respondent Bank to pay the respective petitioners the excess amount, if any, received by the said Bank from the 2[nd] respondent LIC under the policy of Group Gratuity Scheme, in excess of the amount prescribed under Section 4(2) of the Payment of Gratuity Act. Such amounts, if any, remaining payable shall be RP No.335 of 2018 IN WP(C)No.27900 of 2015 6 computed by the 1[st] respondent Bank and intimated to the respective petitioners within two weeks from the date of receipt of a certified copy of this judgment, which shall be disbursed as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment, together with interest at the rate of 9% per annum from the respective dates on which the said amount has fallen due. No order as to costs.” 3. By the order dated 03.12.2019 in C.M.Appln.No.167 of 2018, this Court condoned the delay of 75 days in filing this review petition. Thereafter, the matter was listed on 13.12.2019 and 13.01.2020 for admission, along with the connected case. 4. By the judgment dated 04.12.2017, W.P. (C)No.27900 of 2015 was disposed of in view of the law laid down by the Full Bench in **Chandrasekharan Nair** that an employee of a Co-operative Society, who is covered both under the Payment of Gratuity Act, 1972 and the Kerala Cooperative Societies Rules, 1969 framed under the Kerala Cooperative Societies Act, 1969 is entitled to the higher amount, if he has opted in terms of Section 4(5) of the Payment of Gratuity Act, even if a lesser amount is due RP No.335 of 2018 IN WP(C)No.27900 of 2015 **==> picture [7 x 8] intentionally omitted <==** under Section 4(2) thereof. Therefore, the excess amount, if any, received by the employer Society under the policy would inure to the benefit of such an employee. In **Chandrasekharan Nair** the Full Bench affirmed the decision of the Division Bench in **Nedupuzha [2011 (3) KLT 134]** to the extent that excess amount, if any, received by the employer under the policy would inure to the employee. 5. 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. 6. In **Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [(1980) 2 SCC 167]** the Apex Court held that, if the view adopted by the Court in the original judgment is a possible view, having regard to what the record states; it is difficult to hold that there is error apparent on the face of the record. 7. In **Parsion Devi v. Sumitri Devi [(1997) 8** RP No.335 of 2018 IN WP(C)No.27900 of 2015 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 be 'reheard and corrected'. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'. 8. Later, in **Lily Thomas v. Union of India [(2006) 3 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 like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. 9. In **Anantha Reddy N. v. Anshu Kathuria** RP No.335 of 2018 IN WP(C)No.27900 of 2015 9 **[(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. 10. 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. 11. Viewed in the light of the law laid down by the Apex Court in the decisions referred to supra, none of the RP No.335 of 2018 IN WP(C)No.27900 of 2015 **==> picture [13 x 8] intentionally omitted <==** grounds raised in this review petition fall within the ambit and scope of Order XLVII, Rule 1 of the Code. If the petitioners have a case that the reasoning of this Court in the judgment is erroneous, their remedy is to challenge the same by filing an appeal, instead of invoking the review jurisdiction of this Court under Order XLVII Rule 1 of the Code of Civil Procedure. In such circumstances, this review petition fails and the same is accordingly dismissed. Sd/- ## **ANIL K.NARENDRAN, JUDGE** AV