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2006 DIGILAW 336 (MAD)

Tamil Nadu Housing Board Labour Progressive Union v. Tamil Nadu Housing Board rep by its Managing Director

2006-02-11

K.RAVIRAJA PANDIAN

body2006
Judgment :- (Review Application filed under Sec.114 Civil Procedure Code r/w Order 47 R.1 C.P.C to review the orders passed by this Court on 20.12.2004.) The above Review Application has been taken out by the Tamil Nadu Housing Board Labour Progressive Union to have the Order dated 20.12.2004 made in W.P.No.18776 of 2001 reviewed by this Court on the ground that there are errors apparent on the face of the record, which requires review by this Court. The said grounds are formulated as follows: i) The observation of the Court that the Government Order in G.O.(Nilai) No.430, Housing and Urban Development (HB) I (2) Department dated 21.10.2000, which is impugned in the writ petition is not applicable to the retired employees, is not correct; ii) When the respondent themselves has come out in categorical manner in the counter filed particularly in Paragraph 9 of the counter that no order has been passed by the Government to recover a sum of Rs.3,000/- from the retired or deceased employees, the conclusion of the Court accepting oral argument made by the learned counsel for the respondent is also a mistake on the face of the record as it is an exercise without a pleading; iii) The observation of the Court in its Order dated 20.12.2004 that the Order of the Division Bench made in W.A.No.1492 of 2002 on 19.9.2002 would also support the case of the respondent is equally incorrect in law and on that score, the order, which is sought to be reviewed, is liable to reviewed by this Court. iv) Lastly, the learned counsel for the petitioner has putforth his contention that the term in vernacular employed as the last word in clause (a) of paragraph No.2 of the G.O. Nilai) No.430, Housing an Urban Development (HB) I (2) Department dated 21.10.2000, would be construed as "waived" or "adjusted" and this aspect has not been considered by that Court. 2. I heard the learned counsel for the petitioner and also perused the order dated 20.12.2004 sought to be reviewed and the decisions reported in (2004) 4 SCC 122 (Green View Tea & Industries vs Collector, Golaghat, Assam and Another), on which reliance has been made by the learned counsel for the petitioner. 3. 2. I heard the learned counsel for the petitioner and also perused the order dated 20.12.2004 sought to be reviewed and the decisions reported in (2004) 4 SCC 122 (Green View Tea & Industries vs Collector, Golaghat, Assam and Another), on which reliance has been made by the learned counsel for the petitioner. 3. The points formulated by the learned counsel for the petitioner for the review itself manifestly makes it clear that none of those can be regarded as grounds for seeking review of the Order dated 20.12.2004. An incorrect order cannot be the subject matter for review in the guise of appeal. Here is a case, in which, the Government, by the Government Order approved the Tamil Nadu Housing Board to give 8.33% bonus to its employees, who is receiving salary below Rs.3,500/- for the year 1999-2000 and a sum of Rs.3,000/- as advance and that the amount of advance so paid would be directed to be adjusted after the Experts' Committee appointed for that purpose filed its report. 4. As per the Government Order, bonus has been given and also advance amount of Rs.3,000/- has been sanctioned to its employees. The Board adjusted the amount of advance from the retiral benefit of the employees who retire from the service of the Board. Questioning the action of the Tamil Nadu Housing Board, the writ petition had been filed. 5. Controverting the averments contained in the affidavit filed in support of the writ petition, the respondent filed the counter. On the basis of the pleading and upon hearing the arguments, this Court, by Order dated 20.12.2004 rejected the contention of the petitioner that in the absence of any direction from the Government to recover a sum of Rs.3,000/- from the employees, who were retired, the action of the respondent in recovering the said amount is illegal and against the order and thus, dismissed the writ petition and that order is now sought to be reviewed on the aforesaid grounds. 6. The first ground raised by the learned counsel for the petitioner is that the observation of the Court in G.O.(Nilai) No.430, Housing and Urban Development (HB) I (2) Department dated 21.10.2000, is not applicable to the retired employees is incorrect in law has been argued and rejected by the Court in the order impugned and thus it cannot be reargued. The first ground raised by the learned counsel for the petitioner is that the observation of the Court in G.O.(Nilai) No.430, Housing and Urban Development (HB) I (2) Department dated 21.10.2000, is not applicable to the retired employees is incorrect in law has been argued and rejected by the Court in the order impugned and thus it cannot be reargued. Further on facts, a mere reading of the Government Order would manifestly make it clear that taking the financial constraint of the Tamil Nadu Housing Board to pay bonus into account and after having detailed discussions with the employees and experts the said Government Order came to be passed. Advance can be paid only to the employees who are in service and not to retired persons. Apart from that there are two clauses and clause (a) of the above Government Order, provides for payment of Bonus Act, 8.33% bonus to the employees of the Tamil Nadu Housing Board, who are receiving salary Rs.3,500/- and below and an advance of Rs.3,000/- was directed to be paid under clause (a). The said advance amount would be adjusted on the submissions of the Experts' Report. A conjoint reading of the Clauses a and b manifestly makes it clear that the order is applicable only in respect of the employees, who are entitled to receive bonus as per the Payment of Bonus Act and not otherwise. 7. The second contention that in paragraph 9 of the Counter the respondent admitted that there is no Government Order, which directed the Tamil Nadu Housing Board to recover the amount from the employees goes against the order impugned is also bereft of material. The fact remains that except the G.O.(Nilai) No.430, Housing and Urban Development (HB) I (2) Department dated 21.10.2000, no other Government Order has been passed by the Government. In such circumstances, the statement made by the respondent in their counter affidavit is a statement of correct fact. But while interpreting the G.O.(Nilai) No.430, Housing an Urban Development (HB) I (2) Department dated 21.10.2000, the oral submissions made by the learned counsel for the respondent that the above Government Order is not applicable to the retired employees/deceased employees has been accepted by the Court and that cannot be an error apparent on the face of the records. Further, on merits, I find no second opinion about the view taken in the Order dated 20.12.2004. 8. Further, on merits, I find no second opinion about the view taken in the Order dated 20.12.2004. 8. While delivering judgment, the Court has to consider various aspects of the arguments made and the materials relied on by the respective parties. While giving reasons for certain conclusion, the Court is bound to take note of the materials placed before it. One such material before the Court is the Order of the Division Bench of this Court in W.A.No.1492 of 2002, which was filed by the Tamil Nadu Housing Board, against the confirmation of the impugned order passed by the learned Single Judge. While considering the correctness of the Order, the Division Bench has passed the following Order" " ..... The balance of convenience lies in favour of the appellant for the reason that in the event of the writ petition being allowed, the amount can be directed to be paid to the employees with reasonable interest. On the other hand, if the full amount is allowed to be withdrawn by the employees, it will be very difficult for the Housing Board to recover the amount in the event of their retirement. In the circumstances, the Order earlier passed is made absolute on condition that in the event of writ petition being allowed, the amount which were deducted shall be paid with interest at the rate of 12%." 9. That order has been referred to and the learned Single Judge has come to the conclusion that the Division Bench order would also support the case of the respondent. It is well settled law that any observation of the Court cannot be construed as finding arrived. In this case, the finding has been reached that the action of the respondent Board in recovering a sum of Rs.3,000/- from the retired employees is correct. In order to arrive at a finding wordings are set up in the judgment by referring to the Division Bench of the Judgment and that cannot by itself a reason for review. But for the Division Bench judgment independent reasoning has been given by this Court. 10. In order to arrive at a finding wordings are set up in the judgment by referring to the Division Bench of the Judgment and that cannot by itself a reason for review. But for the Division Bench judgment independent reasoning has been given by this Court. 10. Last point urged by the learned counsel for the petitioner that the word used in clause (2) of paragraph 2 of the G.O. has to be construed and read as 'The Government has intended to waive the same" is also equally unacceptable, as the word means "to adjust, indemnify, reimburse" ( as per Tamil Lexicon) and that is what precisely the respondent have done. In this case they have adjusted the amount of Rs.3,000/- from the retiral benefits. 11. In the above circumstances, on merits also I do not find any case for interference. 12. With regard to ratio of Judgment pronounced in (2004) 4 SCC 122 (Green View Tea & Industries vs Collector, Golaghat, Assam and Another) it is no doubt true that an apparent mistake can very well be corrected by the Court itself. But care should be taken to find out whether there is mistake apparent on the face of the records. Useful reference can be made to various judgments of the Supreme Court referred to in the order of Division Bench of this Court in Rev.Appln.No.78 to 81 of 2004 in A.S.Nos.132 and 133 of 2001 and Cross Objection Nos.14 and 15 of 2003(The Land Acquisition Officer, Revenue Divisional Officer, Palani and Others vs Narendra Dairy Farms (P) Ltd and others). In view of the discussions made above and in the light of the decisions, I am of the view that the petitioner has not made out any case for the invocation of power of review to review the order dated 20.12.2004. 13. In the result, the petition is dismissed. No costs.