Delhi District Court
Sh. Pradeep Chander Mishra vs M/S Rk Agencies on 15 January, 2008
MI No. 51/2006
1
IN THE COURT OF SH. S.K. SARVARIA
PRESIDING OFFICER, LABOUR COURT NO. XII,
KARKARDOOMA COURTS, DELHI.
MI No. 51/2006
BETWEEN
Sh. Pradeep Chander Mishra,
C/o Sh. R.K. Mishra,
Chief Secretary,
Ayodhik Mazdoor Union (Regd.) Santhan,
Bartiya Mazdoor Sangh,
668, Kabool nagar,
G.T. Road,
Shahdara, Delhi - 110032. ...............WORKMAN
AND
M/s RK Agencies,
WZ - 50,
Shri Nagar,
Shakur Basti,
Delhi - 110034. .........MANAGEMENT
ORDER
1. This petition for modification of the order dated 20/7/2006 is filed by MI No. 51/2006 2 the petitioner/workman alleging that due to mistake of this Labour court the relief of back wages for the period from January 2000 to 9/6/2000 at the rate of Rs 5500/-- per month was not granted to the petitioner/workman against respondent/management by this Labour court so the order dated 20/7/2006 should be modified to grant this relief to the workman.
2. It is argued on behalf of the workman that the wages for the period of January 2000 to 9/6/2000 were not demanded by the workman in the industrial dispute and because of the fact that the same are not awarded to the workman in the award in the industrial dispute between the parties passed on 20/5/2006 by Labour Court No. 17 in ID No. 202/2006 so this relief should be granted to petitioner/workman by modification of order dated 20/7/2006 passed by this Labour Court.
3. The management did not appear despite service of the notice and was proceeded with ex.parte.
MI No. 51/20063
4. I have heard the learned authorized representatives of the workman and have gone through the authorities produced and record of the case carefully.
5. It is not disputed that the modification in the order sought amounts to review of the order dated 20/7/2006, on the question of wages claimed. It is contended on behalf of the petitioner/ workman that this Labour Court has power to modify and review its own orders on merits also. Several authorities are relied upon in support of this contention which are discussed below.
6. In Cable Corporation of India Vs. Additional Commissioner of Labour and Others 2005 III Bombay 691, relied on behalf of applicant / workman the question before Division Bench of Bombay High Court was whether upon rejection of the review petition, the party aggrieved, had no right to seek a reference under Section 25N (6) of the Industrial Disputes Act 1947 (in short Act) but the question whether the Industrial Adjudicator can review its own order on merit was not a issue. Therefore MI No. 51/2006 4 Cable Corporation of India's case (supra), does not help the workman.
7. In Ajit Singh Vs. Presiding Officer 2002 (1) SLR 153 P&H the learned Labour Court dismissed the petition for setting aside ex.parte award filed after 30 days of publication of award. On application of review filed by the petitioner, the labour court reconsidered the matter and set aside the ex.parte award. It was held that the order passed by Labour Court, in review, deserved to be set aside. However, the question whether the labour court has power to review its own decision was left open, undecided by Hon'ble Punjab and Haryana High Court, so Ajit Singh's case (supra) also does not help the petitioner / workman.
8. In Umed Singh Vs. Ashok Hotel 2003 (71) DRJ 22 Delhi our Hon'ble High Court was dealing with a matter wherein an application for review of the award on the ground that name of petitioner were missing inadvertently in para No. 15 and 18 of the award as well as in the last para. Relying upon Grindlays Bank Ltd. Vs. Central Government MI No. 51/2006 5 Industrial Tribunal 1980 (Supp) SC 420 and Anil Sood Vs. Presiding Officer Labour Court II (2001) 10 SCC 534 it was observed that the review petition was maintainable even after publication of award before Labour Court / Industrial Tribunal. Umed Singh's case (Supra) in my view also does not help the petitioner as the review sought there was with regard to missing name of the petitioner, which can be a typographical error or error arising out of accidental slip to be corrected under Rule 28 of the Industrial Disputes (Central) Rules 1957. Further the legal position with regard review or setting aside the ex.parte award was subsequently considered by Apex Court in Sangam Tape Company Vs. Hans Raj, (2005) 9 SCC 331 wherein following observations were made referring to case of Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and others, (1980) Supp. SCC 420, wherein it was held that:
" 8.The said decision is, therefore, an authority for the proposition that while an Industrial Court will have jurisdiction to set aside an ex.parte award but having regard to the provision contained in Section 17A of the Act, an application, therefore must be MI No. 51/2006 6 filed before the expiry of 30 days from the publication thereof. Till then Tribunal retains jurisdiction over the dispute referred to it for adjudication and only upto that date, it has the power to entertain an application in connection with such dispute.
9.It is not in dispute that in the instant case, the High Court found as of fact that the application for setting aside the award was filed before the Labour Court after one month of the publication of the award.
10. In view of this Court's decision in Grindlays Bank (supra), such jurisdiction could be exercise by the Labour Court within a limited time frame, namely within thirty days form the date of publication of the award. Once an award becomes enforceable in terms of Section 17A of the Act, the Labour Court or the Tribunal, as the case may be , does not retain any jurisdiction in relation to setting aside of an award passed by it. In other words, upon the expiry of 30 days form the date of publication of the award int he gazette, the same having become enforceable, the Labour Court would become functus officio.
11. Grindlay Bank(supra) has been followed in Satnam Verma Vs. Union of India, (1984) Supp. SCC 712 and J.K. Synthetics Ltd. Vs. Collector of Central Excise, (1996) 6 SCC 92."
12. This court in Anil Sood (supra) did not lay down any law to the contrary. The contention raised on the part of Mr. Jain to the effect that in fact in that case an application for setting aside an award was made long after 30 days cannot be accepted for MI No. 51/2006 7 more than one reason. Firstly, a fact situation obtaining in one case cannot be said to be a precedent for another. [see Mehboom Dawood Shaikh Vs. State of Maharashtra, (2004) 2 SCC 362]. Secondly, from a perusal of the said decision, it does not appear that any date of publication of the award was mentioned therein so as to establish that even on fact, the application was made 30 days after the expiry of publication of the award. Furthermore, the said decision appears to have been rendered on concession."
9. Therefore, Citation quoted in Umed Singh's case (supra) is impliedly overruled by Sangam Tape's case (Supra). Following other citations are relied upon 1) Tinkari Sen and others Vs. Dulal Chandra Das and others AIR 1967 Calcutta 518, 2) The Custodian General E.P. And others Vs. Mohd. Syed Baba AIR 1970 J&K 163, 3) Ajmer Singh Vs. Mukhtiar Singh and others AIR 1973 P &H 266, 4) Ram Baksh Vs. Mt. Rajeshwari Kunwar AIR (35) 1948 Allahabad 213, 5) Narayanan and others Vs. Raman AIR 1953 TRA - Co. 306, 6) Lily Thomas Vs. Union of India and others IV (2000) SLT 620, these citations are based on the interpretation of order 47 CPC and therefore, do not apply to proceedings before Labour Court. It is pertinent to note MI No. 51/2006 8 that the order 47 CPC specifically confers power of the Civil Court to review its own orders based on certain specified conditions but no such power of review is granted to a Labour Court. The Industrial power granted to Industrial Adjudicator under Rule 28 of the Industrial Disputes (Central) Rules 1957 (in short Rules) is only to correct typographical mistake or error arising from a accidental slip or omission, in any award. Said Rule 28 only deals with said correction in award and not correction / modification / review of award in any other manner. There is no provision under the Act or under the said Rules conferring power of review on merit to the industrial adjudicator in industrial disputes.
10. In Grindlays Bank Ltd. v. Central Government Industrial Tribunal & Others, 1980 (Supp.) SCC 420, the following observations were made by the Apex Court:
"Furthermore, different considerations arise on review. The expression review is used in the two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or tribunal to set aside a palbably erroneous order passed under a MI No. 51/2006 9 misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the court in Patel Narshi Thakershi Case held that no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the tribunal must be corrected Ex debita justitiae lo prevent the abuse of its process, and such power inheres in every court of tribunal."
11. After quoting the above observations in Grindlays Bank's Case (Supra), the Apex Court in Kapra Mazdoor Ekta Union v. M/s. Birla Cotton Spinning Weaving Mills Ltd. and others 2005 LLR SC 765 made the following observation:-
"Applying these principles it is apparent that where a court or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the court or the quasi judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the court or quasi judicial authority having jurisdiction to adjudicate proceeds to MI No. 51/2006 10 do so, but in doing so commits a procedural illegality which goes to the root of the matter and invalidates the proceeding itself and consequently the order passed therein. Cases where a decision is rendered by the Court or quasi judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party or where a matter is taken up for hearing and a decision on a date other than a date fixed for its hearing are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the court or the quasi judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, in as much as the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore,the matter has to be re-heard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to MI No. 51/2006 11 the root of hate matter and invalidated the entire proceeding. In Grindlays Bank Ltd. Vs Central Government Industrial Tribunal & Others (Supra), it was held that once it is established that he respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be re-heard and decided again."
12. In U.P. State Road Transport Corporation vs Imtiaz Hussain 2006 (108)F LR 950S.C. it was held:
"Section 152 provides for correction of clerical or arithmetical mistakes in judgements, decrees or orders or errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the same becomes final subject to any further avenues of remedies provided in respect of the same and the very Court or the Tribunal, on mere change of view, is not entitled to vary the terms of judgment and the very Court or the Tribunal, on mere change of view, is not entitled to vary the terms of judgments, MI No. 51/2006 12 decrees and orders earlier passed except by means of review, it statutorily provided specifically, therefore, and subject to the conditions or limitations provided therein. The powers under section 152 of the Code are neither to be equated with the power of review nor can be said to be akin to review or even said to clothe the Court concerned under the guise of invoking after the result of the judgment earlier rendered, in its entirely or any portion or part of it. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the court while passing the judgment, decree or order. The omission sought to be corrected which goes to merits of the case is beyond the scope of Section 152 as if it is looking into it for the first time, for which the proper remedy for the aggrieved party if at all is to file appeal, or revision before the higher forum or review application before the very forum, subject to the limitations in respect of such review. It implies that the Section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the provisions of sections 151 and 152 of Code even after passing of effective orders in the lis pending before them. No Court can, under the cover of the aforesaid sections modify, alter or add to the terms of its original judgment, decree or order. Similar view was expressed MI No. 51/2006 13 by this court in Dwarka Das VS Stare of Madhya Pradesh and another JT 1999 (1) SC 375 = 1999 (3) SC 500 and Jayalakshmi Coelho vs Oswal Joseph Coelho ,JT 2001 (3) SC 356 = 2001 (4) SCC 181."
13. It was further held as follows: -
"The maxim of equity, namely actus curiae neminem gravabit - an act of court shall prejudice no man, shall be applicable. The maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is lex non cogit ad impossibilia - the law does not compel a man to do what he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. The applicability of the aforesaid maxims has been approved by this Court in Raj Kumar Dey vs Tarapada Dey,JT 1987 (3) SC 555 = 1987 (4) SCC 398, Gursharan Singh vs New Delhi Municipal committee JT 1996 (1) SC 647 = 1996 (2) SCC 459 and Mohammod Gazi Vs State of MP and Others ,JT 2000 (4) SC 55 = 2000 (4) SCC 342. The Principles as applicable to Section 152 CPC are clearly applicable to Section 6(6) of the U.P. Act.MI No. 51/2006 14
In the aforesaid back ground the Labour Court was not justified in modifying the award as was originally made. The High Court also had not considered this aspect and decided the writ petition filed by the present appellant on issues other than this vital issue."
14. In Suresh Chandra Sharma Vs Presiding Officer, Labour -- IV,Kanpur and others 2003 LLR 723 All., it was held: -
"In Patel Chunibhai Dajibha VS Narayanrao Khanderao Jambekar, AIR 1965 SC 1457, the Hon'ble Supreme Court had held that in absence of any power of review, the Tribunal could not have subsequently reconsidered its previous decision and the subsequent order re-opening the matter of illegal, ultra vires and without jurisdiction.
In Harbhajan Singh VS Karam Singh, AIR 1966 SC 641, the Hon'ble Apex Court has held that in absence of any provision in the Act granting express power of review, it is manifest that review could not be made and the order in review was ultra vires, illegal and without jurisdiction and the High Court has rightly quashed it by the grant of writ under Article 226 of Consitution.
While deciding the said case, the Hon'ble Supreme Court place reliance on a large number of judgments, particularly in Drew VS MI No. 51/2006 15 Mills, 1891 (1) QB 450; Hession VS Johns, 1914 (2) KB 421; In re St. Nazaire Company, (1879) 12 Ch D 88 and Baijnath Ram Goyanka Vs Nand Kumar Singh, 14 Indian Appeal 54 (PC), wherein it had categorically been held that the power of setting aside an order, which has been made after hearing the arguments, does not lie unless it is given by Statute. The court, under the Statute, cannot review an order deliberately made after argument and entertain a fresh argument upon it with a view to ultimately confirming or reversing it. The courts may have limited power only to make a necessary correction if the order, as drawn up, did not express the intention of the court.
A party is entitled to assail the judgment only by the mode as indicated in the Statute and in absence of express provision of review, it cannot be entertained for the reason that review is practically the hearing of an appeal by the same officer who decided the case.
In Patel Narshi Thakershi and others vs Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273, the Hon'ble Apex Court held that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication and in absence of any provision in the Act, review of an earlier order is impermissible.
In Maj Chandra Bhan Singh Vs. Latafat Ullah Khan and Others, AIR 1978 SC 1814, the Apex Court followed the earlier referred two judgments in Chunnibai and Harbhajan Singh (Supra) and observed that it is well settled that review is a creature of Statute and cannot MI No. 51/2006 16 be entertained in absence of a provision, therefore.
In Dr. Kuntesh Gutpa VS Management of Hindu Kanya Mahavidhyalaya, Sitapur, 1988 (56) FLR 44 (SC), the Hon'ble Supreme Court held as under:-
"It is now established that a quasi judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute, under which it derives its jurisdiction ......... In circumstances, it must be held that Vice Chancellor acted wholly without jurisdiction ........ The said order of Vice Chancellor dated March 7, 1987 was a nullity. (Emphasis added)"
Similar view has been reiterated by the Hon'ble Supreme Court in State of Orissa and Others Vs Commissioner of Land Records and Settlement, 1998 (7) SCC 162.
In Krishna Ashram Educational Trust Vs District Judge AIR 1995 All 415, after placing reliance upon a large number of judgments of the Hon'ble Supreme Court, this court held that in absence of a provision for review, the Authority becomes functus officio after deciding the case and it has no competence to entertain review application and change the order passed by it earlier. Nor the order/Award be reviewed under the garb of clarification/ rectification/ correction.
Therefore, in view of the aforesaid settled legal proposition it can be summarized that in absence of any statutory provision providing for review, entertaining an application for review or under the garb of MI No. 51/2006 17 clarification/modification/correction is not permissible."
15. The same view is taken by Allahabad High Court in U.P. State Road Transport Corporation, Kanpur vs. Babu Singh and others 2003 LLR 808 All., where following observations were made: --
"Thus in view of the above in the instant case, the Labour Court had not competence to deal with an application under Section 6 (6) of the Act, 1947 as there had been no mistake of typographical nature nor there was any omission or accidental slip, etc., warranting the application of those provisions. The question of reviewing the earlier order did not arise under the garb of correction of mistakes."
16. In the light of Grindlays Bank's case (supra), Kapra Mazdoor Ekta Union's case (supra), U.P. State Road Transport's case (supra), Suresh Chandra Sharma's case (supra) and Babu Singh's case (supra) an Industrial Adjudicator is conferred with no power to review its own order on merit. The petitioner has sought the review of MI No. 51/2006 18 order dated 20.7.2006 to grant him the relief of wages for the period January 2000 to 09.6.2000, which was declined by order dated 20.7.2006, by modification of the said order. This relief, however, cannot be granted in the light of the above legal position.
17. In view of the above the petition has no merit and is dismissed. The order be sent to server (www.delhicourts.nic.in). File be consigned to record room.
Announced in the open court on 15.01.2008 (S.K. Sarvaria) Presiding Officer Labour Court No. XII, Karkardooma Courts, Delhi.