Allahabad High Court
M/S Indo Gulf Industries Ltd. vs State Of U.P. And Others on 23 December, 2015
Author: Pankaj Mithal
Bench: Pankaj Mithal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 38 Case :- WRIT - C No. - 19852 of 2011 Petitioner :- M/S Indo Gulf Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yahswant Varma,Rohan Gupta Counsel for Respondent :- C.S.C.,Adarsh Kumar,B.N.Rai,H.K.Tripathi,T.K.Mishra with Case :- WRIT - C No. - 36014 of 2011 Petitioner :- M/S Indo-Gulf Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yashwant Varma,Rohan Gupta Counsel for Respondent :- C.S.C.,B N Rai,H.K. Tripathi,T.K. Mishra with Case :- WRIT - C No. - 36015 of 2011 Petitioner :- M/S Indo-Gulf Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yashwant Varma,Rohan Gupta Counsel for Respondent :- C.S.C.,B N Rai,H.K. Tripathi,T.K. Mishra with Case :- WRIT - C No. - 36017 of 2011 Petitioner :- M/S Indo-Gulf Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yashwant Varma,Rohan Gupta Counsel for Respondent :- C.S.C.,B N Rai,H.K. Tripathi,T.K. Mishra with Case :- WRIT - C No. - 19851 of 2011 Petitioner :- M/S Indo Gulf Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yahswant Varma,Rohan Gupta Counsel for Respondent :- C.S.C.,B.N. Rai,H.K. Tripathi,T.K. Mishra with Case :- WRIT - C No. - 36370 of 2011 Petitioner :- M/S Indo Gulf Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yashwant Varma,Rohan Gupta Counsel for Respondent :- C.S.C.,B N Rai with Case :- WRIT - C No. - 36022 of 2011 Petitioner :- M/S Indo-Gulf Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yashwant Varma,Rohan Gupta Counsel for Respondent :- C.S.C.,B N Rai,H.K. Tripathi,T.K. Mishra with Case :- WRIT - C No. - 36024 of 2011 Petitioner :- M/S Indo-Gulf Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yashwant Varma,Rohan Gupta Counsel for Respondent :- C.S.C.,B N Rai,H.K. Tripathi,T.K. Mishra with Case :- WRIT - C No. - 36052 of 2011 Petitioner :- M/S Indo-Gulf Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yashwant Verma,Rohan Gupta Counsel for Respondent :- C.S.C.,B N Rai,H.K. Tripathi,T.K. Mishra with Case :- WRIT - C No. - 36050 of 2011 Petitioner :- M/S Indo-Gulf Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yashwant Verma,Rohan Gupta Counsel for Respondent :- C.S.C.,B N Rai,H.K. Tripathi,T.K. Mishra with Case :- WRIT - C No. - 36026 of 2011 Petitioner :- M/S Indo-Gulf Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yashwant Varma,Rohan Gupta Counsel for Respondent :- C.S.C.,B N Rai,H.K. Tripathi,T.K. Mishra with Case :- WRIT - C No. - 36048 of 2011 Petitioner :- M/S Indo-Gulf Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yashwant Verma,Rohan Gupta Counsel for Respondent :- C.S.C.,B N Rai,K.K. Tripathi,T.K. Mishra with Case :- WRIT - C No. - 36028 of 2011 Petitioner :- M/S Indo-Gulf Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yashwant Varma,Rohan Gupta Counsel for Respondent :- C.S.C.,B N Rai,H.K. Tripathi,T.K. Mishra with Case :- WRIT - C No. - 36371 of 2011 Petitioner :- M/S Indo Gulf Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yashwant Varma,Rohan Gupta Counsel for Respondent :- C.S.C.,B N Rai with Case :- WRIT - C No. - 36046 of 2011 Petitioner :- M/S Indo-Gulf Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yashwant Verma,Rohan Gupta Counsel for Respondent :- C.S.C.,B N Rai,H.K. Tripathi,T.K. Mishra with Case :- WRIT - C No. - 36044 of 2011 Petitioner :- M/S Indo-Gulf Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yashwant Verma,Rohan Gupta Counsel for Respondent :- C.S.C.,B N Rai,H.K. Tripathi,T.K. Mishra with Case :- WRIT - C No. - 36367 of 2011 Petitioner :- M/S Indo Gulf Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yashwant Varma,Rohan Gupta Counsel for Respondent :- C.S.C.,B N Rai,S.K.Tripathi,T.K.Mishra with Case :- WRIT - C No. - 36368 of 2011 Petitioner :- M/S Indo Gulf Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yashwant Varma,Rohan Gupta Counsel for Respondent :- C.S.C.,B N Rai with Case :- WRIT - C No. - 36042 of 2011 Petitioner :- M/S Indo Guld Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yashwant Verma,Rohan Gupta Counsel for Respondent :- C.S.C.,B N Rai,H.K. Tripathi,T.K. Mishra with Case :- WRIT - C No. - 36031 of 2011 Petitioner :- M/S Indo-Gulf Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yashwant Varma,Rohan Gupta Counsel for Respondent :- C.S.C.,B N Rai,H.K. Tripathi,T.K. Mishra with Case :- WRIT - C No. - 36040 of 2011 Petitioner :- M/S Indo-Gulf Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yashwant Verma,Rohan Gupta Counsel for Respondent :- C.S.C.,B N Rai,H.K. Tripathi,T.K. Mishra with Case :- WRIT - C No. - 36369 of 2011 Petitioner :- M/S Indo Gulf Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yashwant Varma,Rohan Gupta Counsel for Respondent :- C.S.C.,B N Rai with Case :- WRIT - C No. - 36372 of 2011 Petitioner :- M/S Indo Gulf Industries Ltd. Respondent :- State Of U.P. And Others Counsel for Petitioner :- Yashwant Varma,Rohan Gupta Counsel for Respondent :- C.S.C.,B N Rai Hon'ble Pankaj Mithal,J.
Heard Sri Navin Sinha, Senior Advocate, assisted by Sri Rohan Gupta, learned counsel for the petitioner, who is common in all the petitions and Sri B.N. Rai, learned counsel appearing for the Workers' Union/Karmchari Sangh.
All the petitions are based on similar and identical facts and raises a common point for consideration. The writ petition No.19852 of 2011 is treated to be a leading petition with the consensus of both the contesting parties. Therefore, where ever necessary facts as contained as per the pleadings of the leading petition alone would be referred to.
The petitioner is a company having one of its units/factory in Babina, District Jhansi in Uttar Pradesh. The petitioner claims that its aforesaid unit was closed on 30.12.2000 and a communication of its closure was sent to the Deputy Labour Commissioner on 12.11.2001. The Deputy Labour Commissioner had required certain informations regarding the aforesaid closure and that the same were duly furnished. Thus, the Deputy Labour Commissioner had the information of the closure of the aforesaid unit/factory w.e.f. 30.12.2000. At the time of closure of the unit/factory it had 153 workers on its roll.
Several applications under The Uttar Pradesh Industrial Peace (Timely Payment of Wages) Act, 1978 (hereinafter referred to as the Act) came to be filed by the Workers' Union/Karmchari Sangh claiming wages for different periods after the alleged closure. Those applications were allowed. In the leading petition the claim was for wages for the period January to March 2001 and it was allowed vide order dated 16.05.2001.
The petitioner in 2010 moved applications for the recall of the orders passed for the payment of wages to the workers. These recall applications were rejected. In the leading petition the recall application was rejected on 22.10.2010.
The sole cause for rejecting the recall applications is that the Prescribed Authority/Deputy Labour Commissioner had no power of review and therefore, the applications are not maintainable.
The above orders dated 22.10.2010 and 16.05.2001 passed in leading petition and similar orders passed in connected petitions have been impugned through these petitions.
The argument of Sri Sinha, on behalf of petitioner is that after the closure of the unit/factory the claims for payment of wages under the aforesaid Act were not maintainable. The proceedings were ex parte. Therefore, the applications for recall were maintainable but the prescribed authority without making a distinction between a substantive and a procedural review has illegally rejected the same.
Sri B.N. Rai, on the other hand contends that the petitioner had full and complete knowledge of the proceedings but failed to participate and therefore, cannot apply for recall of the orders. The recall applications as filed by the petitioner are in the nature of review. Under the Act, the prescribed authority has no power to review its order. Therefore, the applications have rightly been rejected. The petitioner has not come before the Court with clean hands.
One of the points germane to the controversy at hand, apart from adjudging the validity of the basic orders directing for payment of wages is the nature of the proceedings on the applications of the petitioner for recall and if they are in the form of procedural review whether the Prescribed Authority could have rejected them as not maintainable as it has no power to review.
I have gone through the basic order dated 16.05.2001 passed by the prescribed authority and finds that it records that none has appeared for the management and that no reply on their behalf was filed. The order dated 22.12.2010 only records that the authority is not possessed of any power to review and therefore, the recall/review application is not maintainable and is rejected. The prescribed authority in passing the said order failed to touch the merits of the applications.
It may not be out of the context to mention that in two of the cases including the leading case there is a reference that at one stage when the proceedings were finalised an application was moved on behalf of the petitioner to permit hearing on merit but the application was rejected as the prescribed authority was of the view that it was filed to prolong the proceedings. The filing of such an application is denied.
Notwithstanding the above it would be appropriate to first examine the nature of the proceedings on the alleged recall applications filed by the petitioner.
The application for recall as enclosed with the leading petition states that the petitioner acquired knowledge on 10.04.2010 of the recovery of wages through a writ petition of some workmen filed before Lucknow Bench of the High Court.
On the strength of the aforesaid averment it has been argued that the petitioner had applied for the recall of the basic orders on the ground that they were ex parte and the petitioner was prevented by sufficient cause from appearing before the prescribed authority in all the cases.
Apart of the above averment all other pleadings in the application attacks the basic order on merits which renders it to be an application for substantive review.
In reference to this context, it is relevant to note that some of the workers had filed Writ Petition Misc. Single 5702 of 2009 in Lucknow for direction to implement orders of Prescribed Authority and for payment of wages. It was disposed of on 19.07.2010 as under:-
"Heard learned counsel for the parties.
Submission of learned counsel for the petitioners is that the recovery issued in pursuance to the award has not been implemented by the opposite parties and there was some technical fault in the execution of the award on account of the fact that there was no property situated within the territory of Jhansi and so a letter was written by opposite party no.2 to opposite party no.1 to ascertain as to what are the properties of the respondents situated there.
Counsel for the opposite parties on the other hand has submitted that he has moved recall application for recalling the ex-parte award and the said application has not been decided up till now. It is further submitted since the unit was closed and after closure of the unit the petitioners filed claim before the labour court/prescribed authority and the salary has been awarded in favour of the petitioners from the year 2001 to 2005.
Looking to the entire facts and circumstances of the case and also looking to the fact that the respondents have some merit in their contention, this Court finds it proper to dispose of this writ petition finally with the direction that till the recall application pending before the labour court/prescribed authority is not decided, the status-quo in regard to recovery shall be maintained and as soon as the recall application is decided, the labour court/prescribed authority shall proceed to execute the award as contemplated under the Act.
Subject to above observation, writ petition is disposed of finally."
In view of the avernments contained the applications and the directions of the High Court aforesaid the applications of the petitioner can be classified as applications for procedural review rather than for substantive though a reading of the applications establishes they were both procedural and substantive in nature.
There is no dispute that under the Act the prescribed authority has no power to review its order which means substantive review on merits. Thus, in the absence of any statutory power to review, the prescribed authority has no authority of law to substantively review any of its order passed earlier in the proceedings. In this view of the matter the prescribed authority has no jurisdiction to touch its earlier orders on merits.
At the same time every judicial authority has inherent power to recall its order if it is established that it has been passed erroneously or in violation of principles of natural justice. This is procedural review analogous to the powers of setting aside an ex parte decree under Order IX Rule 13 C.P.C. where the summons are not properly served or the party fails to appear before the Court for some reasonable cause.
In the instant case the petitioner in the applications have attacked the basic order not only on merits but also on the ground that the orders were passed ex parte. In such a situation the applications are also in the nature of procedural review rather than substantive in nature only.
In Harish Chandra Singh1 a Division Bench of this Court was seized of an ex parte assessment order passed by the Passenger Tax Officer, who had rejected the application for setting aside the ex parte assessment order as not maintainable. The Court held that the application was maintainable and it could not have been rejected on the ground that there is no provision under the Act for setting it aside. It was held that an application for setting aside ex parte order was maintainable in spite of the fact there was no such provision under the Act inasmuch as all Judicial Authorities/Tribunals should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties.
In Grindlays Bank Ltd.2 it was held that the application for setting aside ex parte order was maintainable in spite of the fact that there was no provision to that effect under the Act. The Supreme Court further held that a Tribunal under the Industrial Disputes Act, 1947 is competent to set aside to its ex parte award if it is satisfied that the party aggrieved was prevented from appearing by sufficient cause. Such setting aside of ex parte award would be in nature of procedural review and not a review on merits. The Tribunal despite becoming functus officio after the pronouncement of award can entertain such an application and they have ancillary or incidental powers to consider recall of an award if ex parte.
In Kapra Mazdoor Ekta Union3 the Three Judges of the Supreme Court considered the distinction between the review and the recall applications and held though the Act do not grant any power of review either expressly or by necessary implication but the procedural power belongs to a different category and if the party is able to establish that the procedure followed by the forum is vitiated and therefore, the order requires to the recalled it has ample power to do so.
In view of the above discussion, it is crystal clear that the power of substantive review is not exercisable by any court, tribunal or authority unless the same is specifically conferred upon it under the relevant statute whereas the power of procedural review is inherent in every court tribunal or authority and could be exercised even if no such power is given to them under the Act but for the exercise of the same the party applying has to establish that he was not served with the notice or that he was prevent for sufficient good reason from attending the proceedings or that the procedure followed by the forum stood vitiated as it was violative of the principles of natural justice.
In view of the aforesaid facts and circumstances and the legal position summarised above, I am of the opinion though the prescribed authority had no power to review its own decision but had the power to consider the applications for recall of the orders on the limited grounds on which procedural review is permissible. Therefore, ignoring the substantive part of the review and without touching the merits of the orders could have considered the recall applications within the limited scope of violation of principles of natural justice. Thus, it committed material irregularity in rejecting the applications as not maintainable for want of power to review.
Accordingly, the order dated 22.12.2010 passed in the leading petitioner and similar orders challenged in other writ petitions are hereby quashed and the prescribed authority is directed to consider the applications of the petitioner for recall of basic orders afresh in accordance with law only with regard to procedural aspect provided petitioner is able to make out a case that the notices were not served upon it and/or that it was prevented by sufficient cause from participating in the proceedings without touching the merits of the orders sought to be recalled.
The prescribed authority shall pass the fresh orders within a period of three months from the date of production of the certified copy of this order.
The writ petitions are allowed in part as above.
Order Date :- 23.12.2015 Piyush