Shaji P.C v Kalamassery Municipality & Secretary

**==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:32062 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` FRIDAY, THE 11[TH] DAY OF APRIL 2025 / 21ST CHAITHRA, 1947 ``` ``` RP NO.1171 OF 2024 ``` ``` JUDGMENT DATED 04.10.2024 ARISING FROM WA NO.1408 OF 2024 OF HIGH COURT OF KERALA ``` ## **`REVIEW PETITIONER/APPELLANT:`** ``` SHAJI P.C AGED 51 YEARS S/O.CHATHAN, PERINGOTTUMUGAL, VADACODE P.O, KANGARAPPADI, ERNAKULAM, PIN - 682021 ``` ``` BY ADVS. ASOKAN K.V. INDUCHOODAN.A ``` ## **`RESPONDENT/RESPONDENT:`** - **`1 THE KALAMASSERY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, CHANGAMPUZHA NAGAR P O, ERNAKULAM DIST, PIN - 682033`** - **`2 THE SECRETARY`** ``` KALAMASSERY MUNCIPALITY CHANGAMPUZHA NAGAR P O, ERNAKULAM DIST, PIN - 682033 ``` ``` THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 17.03.2025, THE COURT ON 11.04.2025 DELIVERED THE FOLLOWING: ``` **==> picture [58 x 58] intentionally omitted <==** `2025:KER:32062` 2 R.P.No.1171 of 2024 in W.A.No. 1408 of 2024 **ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ. --------------------------------------------------------R.P.No.1171 of 2024 in W.A.No. 1408 of 2024 --------------------------------------------------------Dated this the 11[th] day of April 2025** ## **O R D E R** P.G. Ajithkumar, J The appellant has filed this review petition invoking the provisions of Section 114 and Rule 1 of Order XLVII of the Code of Civil Procedure, 1908. Petitioner filed the writ appeal challenging the judgment dismissing W.P.(C) No.16907 of 2024. As per the judgment dated 04.10.2024, writ appeal was dismissed. The petitioner would contend that there are errors apparent on the face of the record and therefore the judgment in the writ appeal is liable to be reviewed. The 2[nd] respondent - Secretary of the Kalamassery Municipality has filed a counter affidavit controverting the contentions and allegations set forth in the review petition. 2. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents. 3. Petitioner claims that he had been working as a driver-cum-scavenger since 07.03.2011, and he was terminated from service on 29.05.2022 without assigning any reason or **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:32062 ``` 3 R.P.No.1171 of 2024 in W.A.No. 1408 of 2024 giving him an opportunity of being heard resulting in denial of his fundamental right and means of livelihood. He belongs to a scheduled caste and having put in such a long service; he is entitled for regularisation in service. He along with other similarly placed employees filed W.P.(C) No.11307 of 2020 before this Court seeking a writ directing their regularisation and in order to deny him the benefit of the said case, his service was terminated without any reason. 4. The petitioner would contend that he is a workman covered by the provisions of the Kerala Industrial Employment (Standing Orders) Rules, 1958, and therefore his termination without following the procedure prescribed in the said Rules is an unfair trade practice requiring interference by this Court. However, while considering the writ appeal, this Court failed to accept that contention and therefore the view taken in that matter is wrong. It is further contended that the petitioner categorically denied the allegation that he aided another employee who was involved in a criminal case. But this Court did not take note of that assertion. The view taken in the judgment **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:32062 ``` 4 ## R.P.No.1171 of 2024 in W.A.No. 1408 of 2024 regarding the delay is also incorrect. Those are the essential grounds in support of the plea for review. 5. In **Meera Bhanja v. Nirmala Kumari Choudhury** **[(1995) 1 SCC 170]** the Apex Court held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1 of the Code. 6. 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 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 that 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 the 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”. **==> picture [58 x 58] intentionally omitted <==** `2025:KER:32062` 5 R.P.No.1171 of 2024 in W.A.No. 1408 of 2024 7. In **Lily Thomas v. Union of India [(2000) 6 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 as an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. 8. 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 a 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 the rehearing of the matter on merits. 9. The Apex Court in **S.Madhusudhan Reddy v. V.Narayana Reddy and others [2022 SCC OnLine SC 1034 :** **2022 (5) KLT SN 18]** held that the Court’s jurisdiction of review is not the same as that of an appeal. A judgment can be open to review if there is a mistake or an error apparent on the face of the record, but an error that has to be detected by a process of reasoning, cannot be described as an error apparent **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:32062 ``` 6 R.P.No.1171 of 2024 in W.A.No. 1408 of 2024 on the face of the record for the Court to exercise its powers of review under Order XLVII Rule 1 CPC. 10. The respondents do not dispute that the petitioner was engaged as a driver by the Municipality. Payment of remuneration to him through his bank account is also not denied. Contention of the respondents is that the petitioner was a daily wager engaged on demand basis and his wages cumulatively on periodical basis have been remitted in his bank account. It is contended that during the period from 2017 to 2019 alone wages were so paid through bank. The finding of this Court in that regard does not have any error inasmuch as his claim regarding his engagement was found in the affirmative although the nature of employment as claimed by him was not acceded to. 11. The petitioner now contends that his termination amounted to an unfair trade practice coming within the purview of the Industrial Disputes Act, 1947 insofar as his retrenchment violated the provisions of the Kerala Industrial Employment (Standing Orders) Rules. **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:32062 ``` 7 R.P.No.1171 of 2024 in W.A.No. 1408 of 2024 12. As rightly pointed out by the learned counsel for the respondents, such a claim of the petitioner, having been controverted by the employer, amounts to a dispute as defined in Section 2(k) of the Industrial Disputes Act. The petitioner alleges that he was retrenched giving scant regard to the provisions of the Kerala Industrial Employment (Standing Orders) Rules and also the provisions in the Industrial Disputes Act. The respondents raised a contention that the Municipality or its establishments are not an industrial establishments for the purpose of the Industrial Disputes Act. Such a contention raised anew does not require consideration in this review petition going by the law laid down in the aforesaid decisions. Further, if the action taken against the petitioner amounts to an industrial dispute, effective statutory remedy is available under the Industrial Disputes Act itself and a writ petition cannot be entertained as a matter of course. Therefore, no review is possible on the said ground. 13. This Court after considering the rival contentions, rendered findings on the questions concerning the petitioner’s role in aiding his co-worker who was involved in a theft case and **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:32062 ``` 8 ## R.P.No.1171 of 2024 in W.A.No. 1408 of 2024 also the delay. If there is any error in those findings, that is not on account of non-consideration or mistaken consideration. If the view taken by this Court is incorrect, the remedy is not a review inasmuch as a petition for review cannot be an appeal in disguise. 14. Yet another contention raised by the petitioner is that by terminating the petitioner from service, his livelihood was denied, amounting to violation of his fundamental right guaranteed under Article 21 of the Constitution of India. As an ancillary contention he maintains that he is entitled for regularisation and therefore he is liable to be reinstated in service. Certainly, if employment is denied to the petitioner in gross violation of law and arbitrarily, he may be able to allege violation of his fundamental right. The Apex Court in **State of** **Karnataka v. Umadevi [(2006) 4 SCC 1]** held that no contractual or casual employee is entitled for regularisation. Only if the person has been in temporary employment against a regular vacancy for a period of 10 years as on 10.04.2006, he would be entitled for regularising in the service. Therefore, the claim of the petitioner that his termination from the service as a **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:32062 ``` 9 ## R.P.No.1171 of 2024 in W.A.No. 1408 of 2024 daily wager resulted in violation of his fundamental right cannot be countenanced. And, at any rate, that is not a reason for a review. In view of what are stated above, we find no reason to review the judgment dated 04.10.2024 in Writ Appeal No.1408 of 2024. Hence this review petition is dismissed. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** PV 10 R.P.No.1171 of 2024 in W.A.No. 1408 of 2024 **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:32062 ``` ## **`APPENDIX OF RP No.1171/2024`** ``` PETITIONER’S ANNEXURES ``` |**`Annexure A`**|**`CERTIFIED COPY OF THE JUDGEMENT, WA`**| |---|---| ||**`1408/24 DATED 04/10/2024`**| |**`Annexure B`**|**`A TRUE COPY OF THE INTIMATION LETTER`**| ||**`DATED 05/07/2023 WITH TRANSLATION`**| |**`Annexure C`**|**`A TRUE COPY OF THE LETTER DATED`**| ||**`21/02/2024 WITH TRANSLATION`**| |**`Annexure D`**|**`RELEVANT PORTION OF THE RULES, THE`**| ||**`KERALA INDUSTRIAL EMPLOYMENT (STANDING`**| ||**`ORDERS) RULES, 1958’,`**| |**`Annexure E`**|**`TRUE COPY OF THE GAZETTE NOTIFICATION`**| ||**`DATED 14/02/1984`**| |**`Annexure F`**|**`TRUE COPY OF SALARY ACCOUNT STATEMENT`**| ||**`DATED 25/07/2024 OF THE REVIEW`**| ||**`PETITIONER`**| |**`Annexure G`**|**`TRUE COPY OF PROVIDENT FUND ACCOUNT`**| ||**`PARTICULARS OF THE REVIEW PETITIONER,`**| ||**`DATED 25/07/2024`**| |**`Annexure H`**|**`RELEVANT PORTION OF THE ACT, THE IDA ACT`**| ||**`1947`**| |**`Annexure I`**|**`RELEVANT PORTION OF THE RULES, 'THE`**| ||**`KERALA INDUSTRIAL EMPLOYMENT (STANDING`**| ||**`ORDERS) RULES, 1958`**| |**`Annexure J`**|**`RELEVANT PORTION OF THE ACT, THE IDA ACT`**| ||**`1947`**|