Rajasthan High Court - Jaipur
Rashtriya Copper Majdoor And Anr vs Hindustan Coppeer Ltd And Ors on 10 July, 2019
Author: Veerendra Singh Siradhana
Bench: Veerendra Singh Siradhana
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Review Petition (Writ) No. 265/2017
In
S.B. Civil Writ Petition No.14543/2011
1. Rashtriya Copper Majdoor Congress Intuc Khetri Nagar
Through Its Joint General Secretary, Kishan L, Quarter
No. E 203, Sector, 1 B, Khetri Nagar, Distt. Jhunjhunu
2. Pratap Singh S/o Late Shri Khuba Ram, D-128 Kolihan
Nagar, Distt. Jhunjhunu.
----Petitioners
Versus
1. Hindustan Cooper Ltd. Through Its Cmd, Tamar Bhawan,
1-Ashutosh Choudhary Marg, Avenue Kolkata.
2. Executive Director, Khetri Copper Complex, Khetri Nagar,
Distt. Jhunjhunu
3. The Government Of India, Through Secretary Mines,
Shahtri Bhawan, New Delhi.
----Respondents
For Petitioner(s) : Mr. M.C. Taylor
For Respondent(s) : Mr. Ajeet Bhandari, Senior Counsel,
with Mr. Vaibhav Bhargava and Mr.
Atul Bhardwaj
HON'BLE MR. JUSTICE VEERENDRA SINGH SIRADHANA
Order
10/07/2019
Learned counsel for the review/writ petitioner, while seeking
review of the judgment dated 25th April/May, 2017, has raised
three points for consideration of this Court, which warrant review
of the judgment.
Firstly, the date of the judgment under the review indicated
as "25/04/2017", has been wrongly recorded, may be on account
of typography error; for the matter was listed for dictation of
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judgment on "18th May, 2017", and therefore, the correct date is,
25th May, 2017.
Secondly, the judgment has been made relying upon the
principles enunciated by the Apex Court of the land with reference
to principle "equal pay for equal work" whereas claim of the
petitioner(s) in the writ application was for "equal allowances".
Therefore, the opinions relied upon while making the judgment
under the review have not been correctly applied. It is further
pointed out that though the opinions referred to and relied upon
by the learned counsel for the writ/review petitioner have been
taken note of; yet, the appreciation has not been correctly made
resulting into miscarriage of justice.
Thirdly, the Dearness Allowance (D.A.), in case of the
petitioner(s) was accepted with effect from 1st November, 2010,
whereas in the case of "executives", allowances have been made
admissible with effect from 1st January, 2010. Thus, arbitrary
approach in determining two differential dates is apparent on the
face of record. Moreover, D.A. is to be calculated on the basis of
dearness and cannot have been any relation with post held by an
individual. Therefore, "workmen" (petitioners) and "Executives"
are entitled to equal allowances. It is further added that
Performance Related Pay (PRP), has no relation to performance of
individual rather it is the performance of the
company/establishment.
Learned counsel further added that 'settlement', if arrived at,
as a consequence of proceedings before the 'Conciliation Officer'
or in the judicial process, shall be binding. However, a settlement
before the 'Labour Commissioner' cannot be binding. Moreover,
the petitioners were not party to the "settlement", and therefore,
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the same cannot be a basis for declining the claim of the
petitioner(s). Furtherance, the issue of PRP has not been referred
to in the settlement. Referring to the opinion of the Apex Court in
the case of Nar Singh Versus Union of India & Ors.: 2000 (3)
SCC 588; it is emphasized that there cannot be estopple against
the fundamental rights.
Per contra; Mr. Ajeet Bhandari, learned Senior Counsel,
resisting the prayer of the review petitioners for only review
contended that while clerical errors are permissible for correction
in the backdrop of text of Section 152 CPC with reference to the
arithmetical errors and similar as detailed out under Section 152;
there can be re-appreciation of the factual matrix, which has
already been raised, considered and adjudication upon.
Learned counsel would further contend that a glance of the
order of which, review is prayed for, would reflect that all the
issues, which are now sought to be raised, have already been
considered and adjudicated upon. According to the learned
counsel, this Court did take notice of the revision of the "pay and
allowances". Thus, allowances was a part and parcel of dispute
between the parties that has been considered and decided.
Moreover, performance of related pay (PRP), finds place in the
third line of the arguments of the learned counsel for the
writ/review petitioner at internal page 3 of the judgment of which
review is sought for. Similarly, the issue of "Conciliation Officer",
as defined under Section 2(d) of the Industrial Disputes Act, 1947,
has already been taken into consideration while adjudicating upon
the issue and binding nature of the settlement involved herein.
That apart, this Court also took note of the fact that "Executives"
and "Workmen" belong to two different categories. Thus, the
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conclusions arrived at vide judgment dated 25 th April/May, 2017,
by this Court, calls for no review.
Referring to the text of Order 47 Rule 1 CPC, learned counsel
would contend that there is no "error apparent on the face of
record" so as to call for any interference by this Court in exercise
of review jurisdiction. It is further averred that in the review
application, there is no statement of any discovery of new fact(s),
which could not have been brought to the notice of this Court at
the time of hearing on the writ application with due diligence.
Hence, review application merits rejection.
I have heard the learned counsel for the parties and perused
the materials available on record so also carefully considered the
contents of the order of which review is prayed for in the backdrop
of the points raised by the learned counsel for the petitioner
seeking review.
The date of judgment, which has been recorded as "25/04/2017" appears to be a clerical error for the matter was listed on 18th May, 2017, for dictation of the judgment and thereafter. Accordingly, the date on the judgment be read as "25 th May, 2017".
The grounds raised for review of the judgment on the basis of the issue of parity of the allowances, PRP and DA on the basis of dearness to the two categories of "Executives" and "Workmen", (petitioners), have already been taken note of and dealt with by this Court as would be evident from a glance of the order of which review is prayed for.
In the case of Kamlesh Verma Versus Mayawati & Ors.:
(2013) 8 SCC 320; while explaining the scope and ambit of Order 41 Rul1 CPC, the Apex Court of the land, in no uncertain (Downloaded on 30/08/2019 at 10:18:11 PM) (5 of 6) [WRW-265/2017] terms, observed that review proceedings are not by way of an appeal and are required to be strictly confined to the scope of ambit of Order 47 Rule 1 CPC. Here it will be relevant to take note of the summary of the principles summarized on a survey of earlier opinions, which reads thus:
"Summary of the Principles:
16. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute: (A) When the review will be maintainable:
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the Petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words "any other sufficient reason" has been interpreted in Chhajju Ram v. Neki: AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius and Ors.: (1955) 1 SCR 520, to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese and Iron Ores Ltd. and Ors.: JT 2013 (8) SC 275.
(B) When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.(Downloaded on 30/08/2019 at 10:18:11 PM)
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(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."
Keeping in view of the limited scope of the review as carved out under Order 47 Rule 1 CPC; I am not inclined to interfere with the judgment under review in exercise of review jurisdiction.
In the result, review application fails and is hereby dismissed.
(VEERENDRA SINGH SIRADHANA),J Sunil Solanki/19/41 (Downloaded on 30/08/2019 at 10:18:11 PM) Powered by TCPDF (www.tcpdf.org)