Regional Provident Fund Commissioner, Employees' Provident Fund Organisation, Kochi v. Kerala Small Industries Development Corporation Ltd, and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 19TH DAY OF JULY 2017/28TH ASHADHA, 1939** **RP.No. 590 of 2017 () IN WA.116/2007 -------------------------------------AGAINST THE JUDGMENT IN WA 116/2007 DATED 07-06-2016 ----------------** **REVIEW PETITIONER(S)/APPELLANT :-** **--------------------------------** **THE REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANIZATION, KALOOR, KOCHI - 682 017.** **BY ADVS.SRI.N.N.SUGUNAPALAN (SR.) SMT.T.N.GIRIJA, SC** ## **RESPONDENT(S)/RESPONDENTS :-** **--------------------------** **1. KERALA SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD THIRUVANANTHAPURAM - 695 001, REPRESENTED BY THE MANAGING DIRECTOR.** **2. THE GENERAL MANAGER SIDCO RAW MATERIAL DIVISION, GANDHI NAGAR, KOCHI - 682 020.** **3. THE EMPLOYEES PROVIDENT FUNDS APPELLATE TRIBUNAL, 7TH FLOOR, SKY LARK BUILDINGS, 60, NEHRU PLACE, NEW DELHI - 19.** **4. ERNAKULAM DISTRICT SIDCO WORKERS UNION, REPRESENTED BY ITS SECRETARY, P.M.NAZEER, S/O.P.K.M.MOHAMMED, CHAYAKODATH PARAMBU, CHALIKKAVATTOM, VENNALA P.O., ERNAKULAM - 682 028.** **5. STATE OF KERALA, PRESENTED BY THE COMMISSIONER & SECRETARY, LABOUR (H) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM – 695 001.** **6. LABOUR COMMISSIONER, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM - 695 001.** **7. ASSISTANT LABOUR OFFICER, IST CIRCLE, KAKKANAD, COCHIN - 682 020.** ## **RP.No. 590 of 2017 IN WA.116/2007** **8. CHIEF EXECUTIVE OFFICER KERALA STATE HEAD LOAD WORKERS WELFARE BOARD, S.R.M.ROAD, COCHIN - 682 017.** **R8 BY ADV. SRI.KOSHY GEORGE, SC R5 TO R7 BY SR.GOVERNMENT PLEADER SRI.B.VINOD BY SRI.KOSHY GEORGE R1 & R2 BY SRI.M.RAJAGOPALAN NAIR, SC** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 19-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :-** **jvt** ## **P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.** ------------------------------------------------------------- ## **R.P.No.590 of 2017 in W.A.No.116 of 2007** ------------------------------------------------------------- ## **Dated this the 19[th] day of July, 2017** ## **ORDER** ## **ANIL K. NARENDRAN, J.** This review petition arises out of the judgment of this Court dated 7.6.2016 in W.A.No.116 of 2007. The said writ appeal arises out of the judgment of the learned Single Judge of this Court dated 24.05.2009 in O.P.No.22918 of 1998, an original petition filed by the Kerala Small Industries Development Corporation (for brevity, 'SIDCO'), the 1[st] respondent herein, challenging Ext.P7 order passed by the petitioner herein and Ext.P9 order passed by the Employees Provident Fund Appellate Tribunal, the 3[rd] respondent herein, and for a declaration that the headload workers of the 4[th] respondent herein, who are the headload workers of Kadavanthara area, covered by the Kerala Headload Workers Act, 1978 and the Scheme framed thereunder, as disclosed from Ext.P13 certificate of registration issued by the Kerala Headload Workers Welfare Board, the 8[th] respondent herein, are not part-time workers of SIDCO and they do not come under the purview of Section 2(f) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 R.P.No.590 of 2017 in W.A.No.116 of 2007 2 :- (for brevity, 'the EPF Act'). 2. After considering the rival contentions, the learned Single Judge by the judgment dated 24.05.2009 set aside Exts.P7 and P9 orders, holding that, since provision being present in relation to provident fund under the Kerala Headload Workers Act and the said Act being assented to by the President, it is the said Act which would prevail over the earlier Central enactment, i.e., the EPF Act. Feeling aggrieved by the judgment of the learned Single Judge, the petitioner herein (2[nd] respondent in the O.P.) filed W.A.No.116 of 2007. 3. The question that came up for consideration before this Court in the said writ appeal was whether the provisions under the EPF Act and the Scheme framed thereunder is applicable in the case of the headload workers engaged by SIDCO at its Raw Materials Division at Gandhi Nagar, Kadavanthra, in view of the fact that the workers in question are essentially headload workers and the State Legislature has enacted the Kerala Headload Workers Act, 1978 besides the Headload Workers (Regulation of Employment and Welfare) Scheme in the year 1983. 4. After considering the rival contentions, with reference to the Constitutional provisions under Article 254 as well as the law laid down by the Apex Court in **Regional Provident Fund** R.P.No.590 of 2017 in W.A.No.116 of 2007 3 :- **Commissioner v. Sanatan Dharam Girls Secondary School (2007 (1) SCC 268)** ; **State of Kerala v. Mar Appraem Kuri Co. Ltd. (2012 (7) SCC 106)** ; and **Yogendra Kumar Jaiswal v. State of Bihar (2016 (3) SCC 183)** this Court dismissed the writ appeal by the judgment dated 7.6.2016. Para.27 of the said judgment reads thus; “ **27.** In the instant case, both the EPF Act, 1952 and the Kerala Headload Workers Act, 1978 have been enacted by the Central and State Legislatures respectively, acting under the legislative powers available to it under Entries 23 and 24 of the Concurrent List in the Seventh Schedule of the Constitution. The Kerala Headload Workers Act received the Presidential assent on 28.9.1980. It is not in dispute before us that, the Kerala Headload Workers Act and the Scheme framed thereunder provide for welfare measures to headload workers, including provident fund, and that the headload workers registered under Clause 6A of the said Scheme have a right to avail such benefits. It is also not in dispute before us that, the provisions of the EPF Act are inconsistent with the provisions of the Kerala Headload Workers Act and the Scheme framed thereunder. In such circumstances, conclusion is irresistible that, in view of the mandate of clause (2) of Article 254 of the Constitution, the provisions of the Kerala Headload Workers Act, which is a later special enactment, which received Presidential assent on 28.9.1980 shall prevail in the State of Kerala, till the Parliament legislates under the proviso to clause (2) of Article 254 of the Constitution. In that view of the matter, we find no infirmity R.P.No.590 of 2017 in W.A.No.116 of 2007 4 :- in the reasoning and conclusion of the learned Single Judge in the impugned judgment that, in the teeth of clause (2) of Article 254 of the Constitution and the provisions of the Kerala Headload Workers Act and the Scheme framed thereunder, it may not be legal to call upon SIDCO to conform to the mandate of the EPF Act .” _(underline supplied)_ 5. Now, the review petitioner is before this Court in this review petition, seeking an order to review the said judgment dated 7.6.2016 in W.A.No.116 of 2007, invoking the review jurisdiction of this Court under Order XLVII Rule 1 of the Code of Civil Procedure, 1908. 6. We heard the learned Senior Counsel for the Employees Provident Fund Organisation, appearing for the review petitioner. 7. The learned Senior Counsel would contend that, none of the provisions under for the EPF Act are inconsistent with the provisions of the Kerala Headload Workers Act and the Scheme framed thereunder and as such, this Court went wrong in concluding that, in view of the mandate of clause (2) of Article 254 of the Constitution, the provisions of the Kerala Headload Workers Act, which is a later special enactment, which received Presidential assent on 28.9.1980 shall prevail in the State of Kerala, till the Parliament legislates under the proviso to clause (2) of Article 254 of the Constitution. R.P.No.590 of 2017 in W.A.No.116 of 2007 5 :- ## 8. 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. 9. 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. 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 be 'reheard and corrected'. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'. R.P.No.590 of 2017 in W.A.No.116 of 2007 6 :- 11. 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. 12. 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. 13. 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 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. R.P.No.590 of 2017 in W.A.No.116 of 2007 7 :- 14. 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, this review petition fails and the same is accordingly dismissed. No order as to costs. **Sd/-** **P.R. RAMACHANDRA MENON, JUDGE Sd/ANIL K. NARENDRAN, JUDGE** _//TRUE COPY//_ _P.A. TO JUDGE_ Jvt/ 19.7.2017