State of J&K vs Govt. Handloom Silk Weaving Factory

Mr. Ali Mohammad Magrey, J. - In these twelve review petitions, the petitioners are seeking review and recalling of common judgment and

order dated 08.06.2011 whereby and where under this court dismissed the bunch of Letters Patent Appeals bearing nos. 211/2009, 209/2009,

210/2009, 213/2009, 224/2009 and 227/2009, and COD nos. 329/09, 325/09, 327/09, 343/09, 345/09 and 351/09, preferred in groups by the

State of J&K in the connected writ petition SWP No. 1250/2002 along with SWP No. 1468/2004, 945/2002, 27/2003, 79/2003 and 142/2007

against the judgment and order dated 12.03.2009 passed by the learned Writ Court held the petitioners-respondents entitled to be extended retiral

and pensionary benefits by adopting the J&K CSR, however, only to the extent Jammu and Kashmir Industries Employees Service Rules and

Regulations are silent in this behalf.

The review petitioners have taken different grounds in their respective review petitions which are briefly enumerated below;

i) that the decision of the Hon'ble Supreme Court in case titled Jawahar Lal Sazwal and Ors. v. State of J&K and Ors., reported in (2002) 3

SCC 219 is not applicable to the respondents-writ petitioners because that case is applicable to only pre-1963 J&K Government employees, who

had been absorbed in JK Industries and not to employees of JK Industries appointed after 1963 and borne on its cadre.

ii) it is submitted that the respondents-writ petitioners are governed by the judgment rendered in SWP No. 287/1982 titled Tej Krishan

Kachroo and Ors. v. State of J&K and Ors., which has attained finality and the writ petitions have been filed by the respondents, writ

petitioners who were admittedly appointed after the formation of the Corporation in 1963. These employees of J&K Industries having accepted

the judgment passed in SWP No. 287/1982 cannot get any benefit of the judgment of Hon'ble Supreme Court passed in Jawahar Lal Sazwal

and ors case reported in (2002) 3 SCC 219, as the said judgment is a judgment in personam, with respect to only those employees of the J&K

Government whose services were being utilized by JK Industries.

iii) that the respondents-writ petitioners are not entitled to the pensionary benefits as the Rules of the Corporation which are applicable to the

respondents-writ petitioners does not provide for such scheme and the Single Bench as also the Division Bench have not considered this issue,

therefore, there is error apparent on the face of the judgment.

iv) that the respondents-writ petitioners are not entitled to the payment of pension as they were paid contributory provident fund in lieu of payment

of pension but the said important issue has not been considered by the writ court or Letters Patent Bench.

v) that the Review petitioner had raised the issue with reference to non entitlement of the respondents-writ petitioners for pensionary benefits with

reference to application by laws and standing orders of the JK Industries Ltd., which are totally different from those applicable to the Government

employees working in the J&K Government and that the Corporation is an autonomous body, as such rules and regulations applicable to the

employees of State Government are not applicable to them.

vi) that the writ petitioners, respondents in the review petitions, had not raised any claim with reference to payment of pensionary benefits on the

strength of any applicable rules but had projected the claim on the basis of the judgment of the Supreme Court of India in Jawahar lal Sazwal's

case (supra) which case had different and distinguishable facts as the petitioners in that petitions were employees working in different Corporations

of the Government before the formation of the Corporation and were absorbed in JK Industries' but the writ petitioners, respondents in the review

petitions were directly recruited in JK Industries after the formation of the Corporation in this year 1963.

Mr. N.A Beigh, Id Sr. AAG appearing on behalf of the review petitioners submits that the learned single Bench as also the Division Bench have

not considered the issue with reference to the dis-entitlement of the writ petitioners, respondents in the review petitions on account of payment of

contributory Provident Fund in lieu of payment of pension. Mr. Beigh was pointedly asked as to whether such issue was raised in the objections

filed by review petitioners before the single Bench or before the Division Bench.

Mr. Beigh, Id Sr. AAG could not point out the objection raised or the ground taken in the appeal with reference to such issue in the pleadings.

However, submits that the review petitioners had raised the issue with reference to non entitlement of the writ petitioners-respondents by referring

to the bylaws and rules applicable to the employees of the Corporation.

Mr. Beigh while reiterating his arguments referred to and relied upon the judgment of Supreme Court reported in (1990) 2 Supreme Court

Cases 472, which has reference to Government employees absorbed in a statutory body viz ONGC and opting for contributory Provident Fund

under the P.F Scheme by availing the benefit for long, held, not entitled to pension in addition to the Provident Fund. The judgment though applied

can be distinguished only on the ground that the writ petitioners-respondents were having no benefit of pension etc in terms of the bylaws of the

Corporation.

Perusal of the records reveal that no such issue has been raised either at the stage of filing of objections before the single Bench or during the

arguments advanced before the Division Bench, therefore, issue raised, being beyond the scope of pleadings is not subject matter of the decision in

this review petition. Review petitioners want us to decide the afresh on merits which is not the scope of review of an order.

M/s M.A. Qayoom and M.A. Chashoo learned appearing counsel for the writ petitioners, respondents in the review petitions have though

raised preliminary objection with reference to issues raised in the writ petitions amounting to discussing the merits of the case have also submitted

that even on entertaining such issue the writ petitioners, respondents are not hit by the provisions of law because, contributory Provident Fund

cannot dis-entitle the employees of the Corporation, for reducing wages of any employee in the nature of old age pension, gratuity or provident

fund to which the employee is entitled under the terms of his employment, express or implied.

Learned counsel for the writ petitioners-respondents in the review petitions have referred to and relied upon the judgments reported in AIR

2013 Supreme Court 3301; (2011) 11 Supreme Court Cases 702; AIR 1998 Supreme Court 1747; (1981) 1 Supreme Court Cases 449.

Learned counsel for the respondents have also made reference to Section 12 of the J&K Employees' Provident Funds (And Miscellaneous

Provisions) Act. 1961.

Section 12 reads as under:

No employer in relation to an establishment to which any scheme applies shall, by reason only of his liability for the payment of any contribution to

the Fund or any charges under this Act or the Scheme, reduce, whether directly or indirectly, the wages of any employee to whom the scheme

applies or the total quantum of benefits in the nature of old age pension, gratuity or provident fund to which the employee is entitled under the terms

of his employment, express or implied.

A careful reading of the above provision clearly shows that the employer is not to reduce wages etc. In other words, no employer by reason of

his liability for payment of contribution can reduce the various benefits such as old age pension, gratuity provident fund or life insurance to which

the employee would have been entitled under the terms of the employment, therefore, in that view of the matter, the writ petitioners, respondents

cannot be said to be not entitled to the benefit as extended by the writ Court in terms of the judgment rendered on 12.03.2009 and upheld by the

Division Bench of this Court vide its order dated 08.06.2011.

Both the writ Court as also the Letters Patent Bench on proper observation of the pleadings of the parties and after recording reasons with the

application of the provisions of the Act, rules and by laws found entitled the writ petitioners, respondents for the benefit granted in terms of the

judgment, learned counsel for the writ petitioners, respondents have submitted that there is no scope for the Division Bench to entertain the review

petition(s) which has reference to re-opening of the case on merits.

We have heard learned counsel for the respective parties, perused the record and considered the matter.

At the very outset it needs to be kept in mind that review jurisdiction of the Court is limited. It is settled law that it is only an error apparent on

the face of the record which can be considered and gone into by the Court. In the present review petitions, the grounds of fact of law urged in

review petitions, as narrated above, including the submissions made at the Bar by the learned Counsels appearing in these Review Petitions, which

in content and substance were the same as taken in the respective review petitions, cannot in any manner be considered as errors on the fact of

record. Instead the grounds sought to be raised and urged may constitute grounds of appeal alone. In fact, the instant review petitions on grounds

enumerated herein appear to be disguised Second Appeals. As noticed above, the grounds taken by the review petitioners are either that the

findings recorded by the Court are not legally tenable, or that the same are perverse, or that the same are unacceptable. A judgment may be

wrong, erroneous incorrect, perverse, legally untenable, etc. etc., the only course available for the aggrieved party is to go in appeal. Such grounds

do not constitute errors of fact or of law on the face of the record as would call for a review.

The scope of review of an order is very limited and it cannot be a forum to re-argue the matter already decided and this cannot be also used as a

tool for changing the opinion/view of the Court. The said position is explained by the Hon'ble Supreme Court in the decisions reported in (1980) 2

SCC 167, (1999) 9 SCC 596, (2013) 7 SCC 615 and (2013) 8 SCC 320.

In the instant case we do not find that there has been any misconception of law or any mistake committed in the order/judgment sought to be

reviewed, nor is there any reason, much-less sufficient reason, disclosed which would warrant review of the order/judgment.

It may also be observed here that the grounds urged before us by the learned counsel, in effect and in essence, would essentially need a

rehearing of the case a whole, which is not permissible in review jurisdiction. In this connection, reference may be made to the three Judge

judgment of the Supreme Court in Northern India Caterers v. Lt. Governor, Delhi, AIR 1980 SC 674 wherein it has been held that a party is

not entitled to seek a review of an order for the purpose of a rehearing and a fresh decision of the case. Hon'ble Krishna Iyer, J. agreeing with the

majority view, expressed his Lordship's view in the following words:

A plea for review, unless the first judicial view is manifestly distorted, is like asking for the moon. A forensic defeat cannot be avenged by an

invitation to have a second look, hopeful of discovery of flaws and reversal of result... A review in counsel's mentation cannot repair the verdict

once given. So the law laid down must rest in peace.

In view of the above, we do not see any error apparent on the face of the record in the judgment/order dated 08.06.2011 under review as

would warrant its recall on review. These review petitions are, therefore, dismissed together with the connected MPs.