Gujarat High Court
Manojgiri Valamgiri Goswami vs State Of Gujarat - Through Deputy ... on 3 May, 2016
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/MCA/1311/2016 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1311 of 2016
In
SPECIAL CIVIL APPLICATION NO. 5742 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?
2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of No the judgment ?
4 Whether this case involves a substantial question of No law as to the interpretation of the Constitution of India or any order made thereunder ?
================================================================ MANOJGIRI VALAMGIRI GOSWAMI....Applicant(s) Versus STATE OF GUJARAT - THROUGH DEPUTY DIRECTOR OF AGRICULTURE & 1....Opponent(s) ================================================================ Appearance:
MS. NIMISHA SHARMA, ADVOCATE for the Applicant(s) No. 1 ADVANCE COPY SERVED TO GP/PP for the Opponent(s) No. 1 - 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date :03/05/2016 CAV ORDER Heard learned advocate for the applicant Ms. Nimisha Sharma.
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C/MCA/1311/2016 CAV ORDER
2. The present Application is filed seeking review of impugned order dated 31st March, 2014 passed in Special Civil Application No. 5742 of 2008, further praying for the review-applicant & original petitioner relief of reinstatement with backwages.
3. In the said Special Civil Application filed by the State what was challenged was impugned and award dated 21st January, 2008 passed by the Labour Court, Amreli in Reference (LCA) No. 36 of 2002, whereby workman-the applicant herein was reinstated with 25% backwages.
3.1 Against the aforesaid judgment in the writ petition by which, the judgment and award was set aside, the applicant herein had preferred Letter Patent Appeal No.780 of 2014, which however came to be withdrawn and following order dated 22nd January, 2015 was passed by the Division Bench, "Ms. Sharma, learned Counsel, appearing for the appellant seeks permission to withdraw this appeal with a view to take out appropriate proceedings in the form of Review application, as at the time of hearing the relevant documentary evidences were not pointed out to the Court concerned, which were available on record.
The request for withdrawal is not objected by the learned AGP.
Permission, as prayed for, is granted. This matter is dismissed as WITHDRAWN."
3.2 It is after the withdrawal of Letters Patent Appeal as above, the present Review Application was filed, in which there was a delay of 665 days which was condoned allowing Civil Application No. 2217 of Page 2 of 9 HC-NIC Page 2 of 9 Created On Wed May 04 03:40:07 IST 2016 C/MCA/1311/2016 CAV ORDER 2016.
3.3 Now, in the judgment under review, this Court dealing with the case of the workman as regards completion of 240 days of service, observed and held as under, "5. On a closer consideration of judgment and award of the Labour Court and the evidentiary material relied on, it could be clearly noticed that the finding recorded by the Labour Court that the workman had completed 240 days of continuous service was devoid of any legally tenable evidence. It is well settled that the burden to prove the factum of continuous service of 240 days in the preceding year lies on workman. When the respondent-workman went before the Labour Court with a case pleaded that he had completed 240 days of continuous service, and with reference to such assertion complained violation of provisions of section 25F of the Act, it was incumbent in law for him to support his assertion of fact by showing prima facie material. In Range Forest Officer vs. S. T. Hadimani [(2002) 3 SCC 25], the Apex Court held that workman's affidavit was not sufficient evidence for that purpose.
5.1 The Labour Court was in error in reasoning that since the workman stated that he had discharged continuous service, the first party employer was required to rebut the same. A bare statement in the statement of claim or even oral evidence of the workman by itself would not shift the burden of proving 240 days continuous service on the employer. In order to shift the burden on the employer, the workman has to produce some material prima facie supporting his assertion. If by virtue of some tangible material, the workman would prima facie demonstrate that he had worked continuously, then only the burden would shift to become onus on the employer. In the present case, no relevant evidence or any other material came forth to show continuous service of the workman.
5.4 On the contrary, the salary register produced at Exh.8 by the employer suggested otherwise. It did not contain signature of the workman to establish continuous engagement of the workman. From Exh.8 read with Exh.39 which was the evidence of the witness of the employer, it came out that other workmen viz. Vipul Mulsankar Vyas, Shardaben Batuk Parmar, Meenaben Page 3 of 9 HC-NIC Page 3 of 9 Created On Wed May 04 03:40:07 IST 2016 C/MCA/1311/2016 CAV ORDER Gondaliya, Dineshgiri Valamgiri were also engaged as Rojamdars and they were offered work depending upon the availability of work. There was a panel of Rojamdars and the persons were engaged for work on daily rated basis in order of their names figuring in the panel. It was therefore suggested that the respondent was one of the Rojamdars who was given work periodically as and when the same was available. The completion of 240 days by the respondent could not even be indicated, much less established. The workman was intermittently offered work for limited period only. Since the onus was on the workman that he had worked continuously for 240 days and the same was not discharged by him, the finding of the Labour Court about breach of section 25F was erroneous and unsustainable in law.
6. The entire case of the workman put forth in the statement of claim that he was made to work on the names of other persons was curious and it was untenable. It was not having any evidentiary basis. This was only a paper allegation and remained factually unfounded. As such, the evidence suggested that different persons were engaged as Rojamdars from time to time depending upon the need and availability of work. Exh.8 produced by the petitioner employer which was salary register showed the details of different persons who were engaged for different periods. There was nothing cogent to disbelieve or dislodge the said documentary evidence.
7. For all the aforesaid reasons, more particularly when the workman could not prove that he had worked continuously and failed to discharge the burden in that regard, judgment and award directing reinstatement with continuity of service and further awarding 25% backwages could not be sustained in eye of law. Accordingly, judgment and award dated 21.01.2008 passed by Labour Court, Amreli in Reference(L.C.A.) No.36 of 2002 is required to be quashed and set aside and the same is herewith quashed and set aside. Petition is allowed. Rule is made absolute."
4. It was mainly submitted by learned advocate for the review applicant that before the Labour Court, Muster Roll was annexed and produced at Exh.38, but because of mistake on part of advocate at the time of hearing the petition, same was not pointed out to the court. This contention is raised in paragraph 4 of the Page 4 of 9 HC-NIC Page 4 of 9 Created On Wed May 04 03:40:07 IST 2016 C/MCA/1311/2016 CAV ORDER review application. Learned advocate for the applicant submitted that the Labour Court had recorded the fact that along with the claim petition, said Exh.38 was filed and that it showed that the applicant-workman had completed 240 days. It was therefore submitted that error had crept in in the judgment in the Special Civil Application, for which it was required to be reviewed.
4.1 Adverting to look into and consider the decision relied on by learned advocate for review applicant, the first was an Apex Court's decision in Manohar Singh vs. Union of India being S. B. Civil Writ Petition NO. 1184 of 1994 decided on 7th January, 2014. The challenge laid in that petition before the Supreme Court by a Constable/Driver employed in Border Security Force (BSF) was against the impugned order dated 20th May 1993 (Exh.2) denoting confirmation of findings and sentence, passed by the Inspector General Kashmir FTR BSF, Commanding Officer, Srinagar, whereby the petitioner was handed down a sentence of five years' rigorous imprisonment and penalty of dismissal from service, and the appellate order dated 27th July 1994 passed by Director General, BSF, New Delhi upholding order. The second decision pressed into service also of the Supreme Court in S. N. Mukherjee vs. Union of India [AIR 1990 SC 1984] was on the aspect that while passing any decision by administrative authority reasons must be recorded unless such requirement was expressly or by implication dispensed with. It was a petition before the Apex Court about challenging the findings and Page 5 of 9 HC-NIC Page 5 of 9 Created On Wed May 04 03:40:07 IST 2016 C/MCA/1311/2016 CAV ORDER sentence recorded by the General Court martial. The third was a decision in Namita Sharma vs. Union of India [(2013) 1 SCC 745]. It was relating to the appointment of Commissioner of information under the Right to information Act, 2005. Yet another decision in Union of India vs. Namita Sharma [(2013) 10 SCC 359] for its paragraphs 21 to 39 was heavily relied on to support the prayer for review.
5. In Kamlesh Verma vs. Mayawati [AIR 2013 SC 3301] the Supreme Court has delineated the principles and parameters on which a Review Application can be maintained and jurisdiction under Order 47, Rule 1,CPC, could be exercised as under, "The jurisdiction and scope of review is not that of an appeal and it can be entertained only if there is 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. A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected, but lies only for patent error. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. The power of review can be exercised for correction of a mistake but not to substitute a view. The mere possibility of two views on the subject is not a ground for review. 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 CPC. In view jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.
Thus, the following grounds of review are maintainable as stipulated by the statute :
Page 6 of 9HC-NIC Page 6 of 9 Created On Wed May 04 03:40:07 IST 2016 C/MCA/1311/2016 CAV ORDER (A) When the review will be maintainable-:-
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record
(iii) Any other sufficient reason.
(B) When the review will not be maintainable :-
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate Court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negative." (Paras 8, 11, 12, 15, 16)
6. What is sought to be contended by learned advocate for reviewing the judgment, was that the finding by this Court as regards non-completion of 240 days by the workman, was arrived at without considering and by omitting to consider exhibit 38 which was a muster-roll, and that the same was before Page 7 of 9 HC-NIC Page 7 of 9 Created On Wed May 04 03:40:07 IST 2016 C/MCA/1311/2016 CAV ORDER the Labour Court, but not considered. The ground that particular piece of evidence was not considered, is not a ground on which review jurisdiction can be validly exercised. In any view, when learned advocate wants this Court to consider exhibit 38 and on that basis review the judgment, learned advocate wants this Court to re-appreciate the evidence by taking into account the said exhibit 38 and record a different finding on the question of completion of 240 days. As may be seen from the finding recorded in the judgment under review on the said aspect, for holding that the workman had not completed 240 days, the relevant evidence in the nature of salary statement at exhibit 8 read with exhibit 39 which was the evidence of the employer's witness was taken into account. On the basis of the said relevant evidence, finding was recorded. Review power does not entitle the Court to enter into the arena of re-appreciation of evidence on the specious ground that particular evidence was not considered.
7. It is well settled that review is not an appeal whereby an erroneous decision is re-heard or corrected. In order to validly exercise the powers of review, the order has to contain an error apparent on the face of the record. The error apparent on the face of the record has to be such an error to be so striking to render the judgment unsustainable; it is not an error which may be established by process of reasoning or by pointing out that a particular piece of evidence in respect of particular finding was not Page 8 of 9 HC-NIC Page 8 of 9 Created On Wed May 04 03:40:07 IST 2016 C/MCA/1311/2016 CAV ORDER considered when such finding was recorded on the basis of the total evidence on record. Nor it is a ground to review that a particular aspect or argument required to be canvassed as material was not canvassed or that it was not pointed out to the Court. An omission of this kind by the advocate is also no ground to justify a review of the judgment.
8. This Court has also gone through the aforementioned decisions relied on on behalf of the applicant, could not find them applicable in any way either on facts or on the principle of law laid down therein, to the facts and prayer for review in the case on hand. The Court could not be persuaded or convinced as to how the said judgments were relevant for considering the review prayer in this case as well as applying the basic principles for exercising review jurisdiction highlighted hereinabove.
9. For the aforesaid discussion and reasons, there is no merit in the present review application. Hence, the same is rejected.
(N.V.ANJARIA, J.) chandrashekhar Page 9 of 9 HC-NIC Page 9 of 9 Created On Wed May 04 03:40:07 IST 2016