Rajasthan High Court
CIVIL APPEAL 29 of 2008 on 13 October 1998
Arguments
S.B.Civil Review Petition No. 29/2008InS.B. Civil Second Appeal No. 265/1999(Rajasthan State Road Transport Corporation& Another Versus Kailash Chand Sharma)
Date of Order-18.3.2009
Present
Hon'ble Mr. Narendra Kumar Jain,J.Mr. Babu Lal Gupta, for the plaintiff- petitioner(Kailash Chand).
Learned counsel for the plaintiff-petitioner has moved the present reviewpetition to review the order dated 7.9.2006passed by this Court in S.B. Civil SecondAppeal No.265/1999, whereby the appeal filedby RSRTC was allowed. There is a delay of 23days in filing the review petition,therefore, the petitioner has filed anapplication under Section 5 of theLimitation Act to condone the delay.
The contention of learned counselfor the petitioner is that after decreeingthe plaintiff-suit by the trial court, theexecution proceedings were filed in thetrial court and the matter went up to theSupreme Court. He was not having the copyof the order of the Apex Court when heargued the Second Appeal, therefore, thesame was not brought to the notice of this court. The Hon'ble Apex Court vide its orderdated 13.10.1998 disposed of all the civilappeals filed by the RSRTC by observingthat the even if the appeals(Second Appeal)of the corporation succeeds, the respondents(plaintiff) shall not be asked to refund theback-wages received by them pursuant tothis order. The Hon'ble Apex Court alsodirected that respondent shall be paid 33%of the arrears of salary instead of 40%. He,therefore, submits that order dated 7.9.2006may be reviewed and order be passed in termsof direction of the Apex Court.
I have considered the submissions oflearned counsel for the petitioners. So faras the explanation for condoning the delayin filing the review petition is concerned,the learned counsel for the petitioners hasexplained the same in para 2 of theapplication, which reads as under:
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“That the counsel for thehumbleplaintiff-petitionerinformed the humble plaintiffappellant through letters aswell as telegram with respectto the aforesaid decision, butsince the plaintiff-petitioneris suffering from Paralysisand could not move alone andhis wife has also died, inabsence of any responsiblepersontheplaintiffpetitioner was unable to cometo Jaipur within time and it could be possible for theplaintiff-petitionertocontact with his Advocate onlyon 27.10.2006 and to instructto move review petition beforethis Hon'ble Court. Thatapart, even the plaintiff-appellant is unable to put hissignature and can only put thethumb impression on account ofthe fact that his and is notin working condition due toparalysis.
The petitioner in support of above
contention has not placed on record a copyof letter or telegram or medicalcertificate. The above explanation does notconstitute the sufficient ground to condonethe delay in filing the review petition.
Apart-from above, I have also examinedthe review petition on merits and withinthe scope of review petition. The Hon'bleSupreme Court passed order way back on13.10.1998 in presence of the presentpetitioner but the said order was notbrought to the notice of thi Court at thetime of disposal of the second appeal.However, I examined the order of this Courtin the light of order passed by the ApexCourt also. The order of Hon'ble Supremecourt dated 13.10.1998 reads as under:
“Leave granted.
This group comprising of eightcivil appeal filed by theappellant is directed against
the orders passed by theexecuting court rejecting theobjectionsfiledbytheappellants. Respondents in theseappeals were employees of theStateRoadTransportCorporation. subsequently theirservices were terminated. Thecivil court held that thetermination of services of therespondents was illegal and voidbeing in violation of principleof natural justice. Theappellants preferred appealsagainst the decree of the trialcourt. While the appeals werepending the respondents filedexecution petitions before theExecuting Court. The appellantsfiled objection under Section151 against the maintainabilityof the proceedings. The saidobjection was rejected againstwhich the appellants filedrevisions which were alsodismissed.
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When these appeals weretaken up, learned counsel forthe respondents referred to adecision of this court in C.A.NO...../1994SLP(C)No.17038/94, etc etc. RajasthanStateRoadTransportCorporation, Jaipur vs NarainSingh etc.etc.). In the saidcase in similar situation thiscourt passed the followingorder.
1. The respondents , in allthe appeals herein, areentitled to be reinstatedwith effect from the dateof the decree in theirfavour. Those who have notbeen reinstated despitedecrees in their favour areentitled to wages from thedate of decree onwards. Wedirect the Corporation topay salary/wages to therespondents from the dateof decree onwards. It shallbe done within four monthsfrom today. Needless to say that all these respondentswho have reached the age ofsuperannuationmeanwhileshall be entitled to thewages till the dates oftheir superannuation.who have reached the age ofsuperannuationmeanwhileshall be entitled to thewages till the dates oftheir superannuation.
2. So far as back-wagersprior to the date of decreeare concerned, we directthat the respondents shallbe entitled to 40% of thback wages. The back wagesshall be calculated andpaid to the respondentswithin four months fromtoday We make it clear thateven if the appeals filedby the Corporation succeed,the respondents shall notbe asked to refund the backwages received by thempursuant to this order. Inall other respects theappellate order shall bebinding on the partiessubject to other remediesavailable to them underlaw;prior to the date of decreeare concerned, we directthat the respondents shallbe entitled to 40% of thback wages. The back wagesshall be calculated andpaid to the respondentswithin four months fromtoday We make it clear thateven if the appeals filedby the Corporation succeed,the respondents shall notbe asked to refund the backwages received by thempursuant to this order. Inall other respects theappellate order shall bebinding on the partiessubject to other remediesavailable to them underlaw;
3. In case the Corporationhas already paid full backwages to any of therespondents the same shallnot be recovered from themeven if the amount so paidis more that 40% asdirected by us.has already paid full backwages to any of therespondents the same shallnot be recovered from themeven if the amount so paidis more that 40% asdirected by us.
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We are of the opinion thatthe aforesaid directions issuedin the aforesaid case deservesto be passed in the presentcases also. We accordingly adoptth aforesaid directions withthismodificationthatrespondent shall be paid 33% ofthe arrears of salary instead of40%.the aforesaid directions issuedin the aforesaid case deservesto be passed in the presentcases also. We accordingly adoptth aforesaid directions withthismodificationthatrespondent shall be paid 33% ofthe arrears of salary instead of40%.
Theappealsaredisposed of in the aboveterms. No order as to costs.”
The operative portion of order dated
7.9.2006 passed by this Court also reads as under:
“In the result, theappeal, filed by defendantsappellants, is allowed. Theimpugned judgments and decreespassed by both the courtsbelow are set aside and thesuit field by the plaintiff-respondent is dismissed. It ismade clear that the plaintiff-respondent shall not beallowed to continue in serviceany further, but in case anywages or regular salary hasbeen paid to him, the sameshall not be recovered fromhim. It will be open for theplaintiffrespondenttoapproach the Labour Court forhis grievances in accordancewith the provisions of law.There shall be no order as tocosts.”
The aforesaid two orders make itclear that this Court has already passed anorder that in case any wages or regularsalary has been paid to Kailash ChandSharma, the same shall not be recovered fromhim. Therefore, this order is in consonancewith the order passed by the Apex Courtitself. Even after dismissal of the suit ofrespondent Kailash Chand Sharma, theaforesaid order for not recovering theamount from him has been passed.
In view of above, I do not find anyerror apparent on the face of record, so asto review the order dated 7.9.2006.
Consequently, the review petition isdismissed being barred by limitation as wellas on merits also.
(Narendra Kumar Jain), J.
//om//
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