1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CIVIL APPLICATION NO. 6572 OF 2007 IN MISC. CIVIL APPLICATION ST. NO. 15109 OF 2007 IN WRIT PETITION NO. 3994 OF 2005 (Secretary, Akhil Bharatiya Khadi Gramodhyog Prayog Samiti vs. Suryabhanji Govindrai Tapre) AND CIVIL APPLICATION NO. 6937 OF 2007 IN MISC. CIVIL APPLICATION ST. NO. 15196 OF 2007 IN WRIT PETITION NO. 3996 OF 2005 (Secretary, Akhil Bharatiya Khadi Gramodhyog Prayog Samiti vs. Sambaji Nanaji Dhote) Shri B.B. Shah with Shri R.K. Thakkar, Advocates for the applicant/ petitioner. Shri M.B. Agasti, Advocate for the respondent. ..... CORAM : B.P. DHARMADHIKARI, J. AUGUST 04, 2008. ORDER : Civil Application No. 6572 of 2007 is to condone delay of 210 days in filing Misc. Civil Application (Review) Stamp No. 15109 of 2007. Civil Application No.6937 of 2007 is to condone delay of 211 2 days in filing Misc. Civil Application (Review) Stamp No.15196 of 2007. Both these Misc. Civil Applications (Stamp Numbers) are for review of judgment dated 13.2.2007 delivered by me in Writ Petition Nos. 3994 of 2005 and 3996 of 2005. The subject matter of both Writ Petitions was identical and hence both these matters are listed together. 2. The reason for condonation of delay is late communication by the advocate who represented the review applicant in Writ Petitions. During the hearing, the postal envelops through which the intimation of decision was forwarded by said advocate to the applicant were also shown. Shri Shah, with Shri Thakkar, Advocate for the applicant contended that as the applicant is at Gujarat, it was totally relying upon its advocate and in the circumstances, delay has been caused. He contends that there are no malafides and this Court, therefore, should condone the delay. 3. Shri Agasti, Advocate for the respective respondents (employees) has opposed the prayer for condonation of delay. He states that such allegations against the counsel then representing the 3 applicant/ petitioner should not be lightly accepted by this Court. 4. It is apparent that the judgment of this Court was communicated belatedly and therefore there has been delay in filing the applications for review. I do not find any malafides on the part of the applicant/ employer. The delay is, therefore, condoned. The office to register both Misc. Civil Applications. MISC. CIVIL APPLICATION (REVIEW) ST. NO. 15109 OF 2007 AND MISC. CIVIL APPLICATION (REVIEW) ST. NO. 15196 OF 2007 1. The non-applicants/ respondents in both Misc. Civil Applications are ex-employees of the applicant. They approached the machinery for conciliation under Industrial Disputes Act with a grievance that their services were suddenly, illegally and wrongfully terminated with effect from 1.6.1992 orally. The applicant filed its written statement stating that the activity was closed down from 1988 and on the date of alleged termination, there was no employer – employee relationship between the parties. The parties led evidence and Labour Court by its award delivered on 3.3.2005 granted the relief of reinstatement with continuity but turned down the relief of 4 back wages. This judgment was questioned before this Court in Writ Petition Nos. 3994 of 2005 and 3996 of 2005 by the applicant/ employer. After hearing the respective learned counsel, the judgment came to be delivered on 13.2.2007 by observing that the award dated 3.3.2005 needed modification. Accordingly, modification was ordered and reinstatement was refused to both the employees by directing that respective respondents /employees be treated as in service up to the dates of their superannuation. The operative clause No. (iii) of said awards was accordingly substituted by this direction in both writ petitions. 2. In this background, Shri Shah, Advocate for the applicant has contended that in Writ Petition No. 3994 of 2005, date of superannuation mentioned as “01.06.2002” which is apparently wrong and said date has to be “01.06.1992”. He states that date “06.05.1996” mentioned as date of retirement of employee Sambaji Nanaji Dhote upon completing the age of 60 years in Writ Petition No.3996 of 2005, is correct. 3. Shri Agasti, Advocate, who also appears for the other 5 employee viz. Suryabhanji Govindrai Tapre, has fairly stated that it is typographical error and the employee stands superannuated on 01.06.1992. In view of this fair statement, the date of superannuation appearing as “01.06.2002” in Writ Petition No. 3994 of 2005 is hereby modified to read as “01.06.1992”. 4. Shri Shah, Advocate has further stated that as Labour Court has delivered the award on 3.3.2005 and back wages are denied, there is no question of grant of any wages by this Court in its judgment. He contends that direction to pay wages in lieu of reinstatement as substituted is, therefore, uncalled for. He further points out that quantification of wages is also not proper as there is dispute between the parties about the exact quantum of wages. He further points out that the activity was closed down in 1988 itself and there was resignation by both employees and as such there could not have been any retrenchment in 1992. He argues that termination, if any, had taken place in 1988 and it was not challenged. He further states that even if it is presumed (without admitting) that there was any termination in 1992, reference sought was in 1997 and therefore belated one. He, therefore, contends that on this count also, the 6 award ought to have been set aside. He argues that establishment of present applicant is not an industry and invites attention to proposed amendment in definition of “Industry” in the Industrial Disputes Act. He further argues that as per resolution of applicant, the age of retirement of both the employees is 58 years and not 60 years as is being posed before this Court. He argues that applicant’s resolution has to prevail over provisions of any other law. He also states that though all the grounds were expressly raised in writ petition, the attention of this Court was not invited to these grounds by the then counsel representing the applicant/ petitioner and as such the same have been overlooked. He pleads that there is an error apparent on the face of the record warranting review. He also wanted to rely upon certain judgments and assured to place the same on record after advance intimation to Advocate Agasti. As per list filed on record by Advocate Thakkar on 28.7.2008, reliance has been placed on the judgments reported at 1997 III L.L.J. 742- K.H. Kulkarni vs. Bombay Burma Trading Corporation, (1993) Suppl. (4) SCC 595 S. Nagraj & Ors. vs. State of Karnataka, A.I.R.2005 S.C. 592 Board of Control for Cricket vs. Netaji Cricket Club, 1990 Lab. I.C. 1511(SC) M/s J.K. Cotton Spinning & Weaving Mills vs. State of U.P. ,1999 III L.L.J. 700. 7 But notice of these citations is not served on Advocate Agasti. 5. Shri Agasti, Advocate for the respondents, on the other hand, states that the grounds which were not argued were not rightly considered by this Court and hence no review on that count can be entertained. He states that disputed question of fact whether there was voluntary resignation in 1988 or continuation of relationship till 1992 has been gone into by the Labour Court and as such the said question cannot be re-examined again in review jurisdiction. He points out that alleged resolution of closure has not been established in evidence and also the Labour Court has found that juniors were retained. He denies that there is any delay in approaching the Court and invites attention to written statement filed by party No.1 before the Labour Court to show that even after 1988, the establishment of the applicant continued to function till 1992. He states that the Labour Court has, therefore, rightly found that there was retrenchment. He further states that issue of “industry” being a disputed question of fact, cannot be raised for the first time in review. He further argues that the Labour Court has not quantified the wages at all as that was not the issue before it and he further states that 8 question of age of retirement is not open for consideration before this Court. He relies upon the provisions of Model Standing Orders and Bombay Shops and Establishments Act, to urge that said provisions will prevail over the resolution allegedly recalling the age of retirement of employees of the applicant. He, therefore, prays for dismissal of both review applications. 6. The perusal of award delivered by the Labour Court reveals that the Labour Court has found that the establishment of applicant continued to function even after 1988. Written statement filed by Party No. 1(ii) i.e. Vyawasthapak, Akhil Bhartiya Khadi Gramodyog Prayog Samiti, Wardha, shows that there the applicant’s Manager has admitted that after 1988 one Shri Sohoni continued the activity and present employees continued to work on half salary & Shri Sohoni expired in 1992 and thereafter the activity was closed down. Shri Shah has contended that Shri Sohoni has illegally continued the activities. However, such a defence ought to have been raised before the Labour Court. The finding of Labour Court that activity continued even after 1988, therefore, cannot be said to be perverse. Not only this, resolution of closure is also found to be not proved by the Labour 9 Court and discussion of Labour Court in that connection in para No. 32 of its award is neither erroneous nor perverse. 7. It is, therefore, apparent that there was no termination in 1988 and though some resignation was obtained from the present respondents, it was not acted upon. The respondents, therefore, were orally terminated in 1992 perhaps after the death of Shri Sohoni. The burden to show otherwise was upon the applicant/ employer and it has failed to do so. In these circumstances, when the Labour Court has found that two juniors were retained and said finding is not being shown as perverse, again in review, no interference is warranted. 8. The argument that the applicant is not an “industry” is being advanced by placing reliance upon the amendment proposed by 1984 amendment to the Industrial Disputes Act and said amendment has not so far been enforced. In the result, the argument is misconceived. 9. The award of Labour Court does not show any quantification of wages and this Court has also not quantified the wages at all. Therefore, whenever action for recovery of any wages or 10 similar benefits is initiated by the employees, the question can be gone into in those proceedings. Similarly, the age of retirement has been accepted to be 60 years and was disclosed accordingly to this Court, in these circumstances, again no interference is warranted in that regard in review jurisdiction. It is also apparent that if pleas raised are not argued and pressed, review to have such pleas is not maintainable. 10. The position which emerges from the record is that on 3.3.2005 the Labour Court directed reinstatement with continuity but without back wages. This Court has also not granted wages in lieu of said future reinstatement i.e. from 3.3.2005 onwards as such reinstatement itself was not possible. In view of the fact that both respondents stood superannuated prior to 3.3.2005, there was/is no question of grant of any such wages in lieu of reinstatement. In writ petitions this Court has not in any way touched clause “(iv)” in the operative part of the awards impugned therein. The only declaration which has been given in the matter is both the respondents are to be treated as in service from the date of their respective termination till their superannuation. It is apparent that their claim for wages for said period is already turned down by the Labour Court and in the 11 absence of any challenge thereto by the employees, said rejection had already become final when Writ Petitions were decided. 11. Misc. Civil Application (Review) Stamp No.15109 of 2007 is accordingly partly allowed by modifying the date of superannuation of employee Suryabhanji Govindrai Tapre as “01.06.1992”. In view of the discussion above, the Misc. Civil Application (Review) Stamp No.15196 of 2007 is hereby dismissed. JUDGE *GS.