Karnataka High Court
Karnataka State Road Transport ... vs John D'Souza And Another on 10 March, 1995
Equivalent citations: ILR1995KAR2292, 1995(4)KARLJ361
JUDGMENT
1. Is there to be any sense of finality to the decisions of this Court or, does a litigant and his lawyer have the absolute licence to keep on reopening issues after a final determination is the central question that requires to be once and for all set at rest. Does the law envisage multiple and recurrent stages of argument at the post-final decisional stage is the question that will have to be determined in the light of a so called practice that is to be increasingly current in this High Court under the guise of "being spoken to". While it is accepted that an application would lie to the Court to correct a typographical error that has inadvertently remained in the final judgment or order or to carry out some other minor or cosmetic rectification such as in a case where some little ambiguity has remained with regard to the direction, operative part of the order, time, period, etc., this facility is not to be misunderstood and misused for purposes of reopening and re-arguing a case and virtually sending the litigation in circles. It is an unhealthy practice and an impermissible one for an unsuccessful litigant to change his lawyer and reproach the Court virtually for a reconsideration of the case and to couch the application under the guise of one "for being spoken to or recalling of the order". The terminology does not matter but the practice requires not only to be discouraged but to be stopped. The statistics for the month of January, 1995, indicates that the arrears in this High Court stand at 1.56 lakhs, that approximately 3,000 cases very filed in that month and that as many as 90 of hem constitute cases in the above category. As far as applications for recalling are concerned, these come within an entirely different category in so far as they are invariably made in situations where interim or transitory orders are passed which by their very nature, give sufficient justification at times and to qualify for reconsideration, review or recalling. The point arising for determination is in relation to final orders and the contention that is often raised is that if the judgment has not yet been signed, that the order can always be recalled. The case law as far as his class of cases is concerned is very clear and lays down the inflexible principle that if the judgment has been delivered in the absence of a party or his Counsel and if there is valid and genuine cause shown before he judgment has been signed or the office has Communicated the order, that it is within the discretion of the learned Judge to hear the party and recall the order if necessary. This provision applies only to civil proceedings as the Criminal Procedure Code, 1973, prescribes an absolute bar to any such procedure under Section 362 of the Criminal Procedure Code, 1973, save and except for correction of typographical errors. In the case of civil Proceedings, the law does prescribe for a review but he circumstances under which a Court will exercise hose powers have been well-defined and it is now settled law that if material or fundamental aspects of a or fact which would have materially altered the Judgment including a decision on a point of law, have escaped the attention of the court despite due diligence of the parties, it may be open to the party concerned to request the Court to review the Judgment in such circumstances. The underlining principle in all these situations is that a rule of finality hall apply and this rule shall not he diluted due to a else of laxity on the part of the Court or a so called practice that has become current. If we are to come to grips with the process of justice dispensation, it will have to be understood both by the Bench and the Bar that time the management is of paramount consequence, that a high degree of absolute seriousness and professionalism will have to be attached to the conduct of cases and that one and only one opportunity is provided for by the law at the stage of final hearing and that the court will not and shall not permit reopening of a case merely because a lawyer has changed or somebody is wiser after the event and wants to canvass some other so called subtle angles.
2. The facts giving rise to this situation are of some importance. The petitioner in this original case is the Karnataka State Road Transport Corporation (hereinafter referred to as "the KSRTC"). Briefly stated, the petitioner had, pursuant to the holding of a disciplinary enquiry, dismissed the respondent who was a conductor from the services of the corporation on the basis of charges of some seriousness. It was alleged that he had not issued tickets to certain persons and consequently, that it constituted misappropriation of the corporation's funds. It was also alleged that he was extremely rude, aggressive and insolvent when the incident had taken place, that he had made allegations against the corporation's Officers and all the charges of misconduct having been established he came to be dismissed from service. The appeal having failed, he moved the Labour Court by way of a reference and the Labour Court through a judgment running into over 60 pages embarked upon a detailed reappraisal of the evidence and set aside the order principally on the ground that after appreciating the credibility of the evidence, that the charges could not be held to have been established. An order for reinstatement was passed and full back-wages were also directed. The corporation challenged the order through the present petition principally on a point of law, namely, that when, the procedure prescribed by law has been followed and an enquiry has been held that it was incumbent upon the learned trial Judge to have first examined the question as to whether the orders passed by the disciplinary authority are sustainable and valid in law and, if not, to have thereafter enlarged the scope of the enquiry if necessary. The submission was that if the evidence was conclusive and the orders were perfectly valid and correct in all respects including on the quantum of sentence, that the Labour Court ought not to have thereafter interfered merely because in its opinion another view was possible. The basic argument proceeded on the footing that it is not open to the Labour Court in these circumstances to interfere for the sake of interference unless there is valid and legal justification. The petitioner in the meanwhile had been reinstated under directions by the corporation and, therefore, there was a stay in respect of the back-wages only. I need to add here that at the hearing, the corporation's learned Counsel had submitted that these are cases of seriousness because a good percentage of the Corporation's funds are being looted through activities of this type and the complexion of the case does not rest with the individual consideration of whether it was a few tickets worth a few rupees because the offence when multiplied in the case of every conductor would ultimately result in loss running into lakhs and crores. The second submission canvassed was that under the guise of undue sympathy that Court after Court has been repeatedly interfering with disciplinary orders as a result of which it has become impossible for the Corporation to take any action against errant employees who are confident of the fact that in every case the Court will either let them off or will show maximum sympathy to them. I do consider that these arguments require to be taken cognizance of because the Corporations which otherwise come under criticism because of their financial condition and management do require adequate protection and assistance from the law enforcement machinery and the Court, if some semblance of efficiency and honesty is to be insisted upon from the employees. This Court after a detailed hearing of the petition, disposed it of through a judgment dated November 25, 1994, in which Judgment the law on the point has been enunciated and set at rest. Thereafter, in the month of January, 1995, even though the petition was disposed of, I.A. III has been taken out which is an application for the recalling of the final judgment dated November 25, 1994, which had in the meanwhile been signed and had become final for all intents and purposes.
3. Adverting here for a moment, I have had occasion to refer to the arrears that are pending in this High Court and the statistics indicate that in the year 1994, as many as 13,900 such applications were flied in this High Court at the after disposal stage for all sorts of reliefs. I have indicated earlier, that except in the circumstances set out which minimum, that no such application is competent at the post-decisional stage. These applications referred to by me have taken up approximately 10 per cent of the judicial time spent by this High Court in the last year despite the fact that they were in fact not competent, were filed only because some litigant or his learned Advocate desired to make such an application. In those cases where the Court grants time, it is presumed that anything up to half a dozen applications can be filed from time to time for extension of time and this is virtually how the administration of justice is being impeded. It is necessary, therefore, to lay down very clearly that such applications are neither competent nor will they be entertained.
When the I.A. III was placed before the Court on February 2, 1995, I have passed the following order :
"The first respondent claims to have changed his lawyer and has now filed an application for recalling of the judgment dated November 25, 1994 [See 1995 86 FJR 651 (Kar.)]. This judgment was delivered in open court after hearing the parties at considerable length and dealing with the facts and the law relating to this case.
I have perused the application for recalling of that judgment and it is a clear attempt to reargue the matter on facts. However, since allegations are made against the Corporation, it is advisable that they place their replies on record. Matter to be called after 4 weeks."
4. The corporation filed its reply and not only refuted the allegations made that the records are supposed to have been tampered with and manipulated but significantly enough produced before the Court the service record of the petitioner which makes disastrous reading. That record demonstrates that he has been indulging in such misconduct right from the year 1986 onwards, that on multiple occasions - minor punishments have been awarded to him and as often happens, the leniency of the punishment has encouraged the employee to repeat the offence. The saddest part of the reading of the record is the fact that even in the present instance after the order of dismissal was set aside by the Labour Court and the proceeding was pending before this Court, that the petitioner had indulged in such activity once again. I refer to this aspect of the matter because this is one of the cases where a High Court had refused a remand principally on the ground that there can be no other view possible on the facts of this case including on the question of quantum of punishment because the facts are so gross that an order or dismissal was justified.
5. Mr. Narasimhan, who appears on behalf of the respondents in support of I.A. III, submitted that there are two principal points of law that he proposes to canvass. The first of them being that the law in relation to situations of this type or in other words, the proper and complete interpretation of section 11(A) of the Industrial Disputes Act after its amendment has been amplified by the Supreme Court in Firestone's case, [1973-I-LLJ-278), and that the judgment of this Court is at variance with the law as laid down by the Supreme Court. The arguments of Mr. Narasimhan do not proceed on the footing that this Court has overlooked that decision but his contention is that the ratio of that decision has not been correctly followed. In other words, the submission is that the present judgment is erroneous. I do not conceive of a situation whereby it is open to any Court to sit in appeal on its own judgment in an application for recalling because this was not an application for review, but the technicalities apart, the only remedy if such an error has taken place, is to get the same rectified by the Appeal Court. I did, however, for academic purposes hear the learned Advocate who insisted on arguing at considerable length and I am unable to accept this charge of criticism. The judgment of this Court has analysed the judgment of the Supreme Court and followed it and it is in relation to that judgment that this Court has laid down the law. Mr. Lakshminarayana submitted that he has carefully gone through the judgment of this Court as also the judgment of the Supreme Court and that the submission is absolutely and completely groundless. I need to add that there is no question of recalling of the judgment on this ground.
6. The second head of challenge and again, strangely enough at the post-decisional stage, and in respect of which once again the learned Advocate insisted on arguing at great length and citing authorities, is that this Court has laid down that the position of the Labour Court while hearing a case under section 11(a) of the Industrial Disputes Act is distinguishable from that of an appeal. This Court has held that the Labour Court is an independent reviewing authority and has consequently indicated that it is condition precedent for the Labour Court to first assess the correctness or otherwise of the earlier orders. Mr. Narasimhan submitted that this Court has changed the interpretation of the law from what was earlier understood and that this would cause problems in several other precedents and that this is a ground on which the judgment should be recalled. This is a startling argument because an interpretation of the law by the High Court often times changes the existing situation or earlier understanding and this is no ground on which it can be faulted.
7. The learned Advocate submitted that the is Supreme Court in the decision in State of Kerala v. K. M. C. Abdulla and Co., , was considering the distinction between appellate powers and revisional powers. Relying on the ratio in that case, Mr. Narasimhan submitted that it was incorrect on the part of this Court to have held that the Labour Court does not possess appellate powers. I do not see even the remotest relevance of citing this judgment which was one under the Sales Tax Act wherein the Supreme Court was considering the powers of the revisional authority under Section 12 of that Act which are entirely distinct from those of an Appellate authority. Next, Mr. Narasimhan relied on the decision of the Supreme Court in Smt. Meera Bhanja v. N. K. Choudhury, . The Supreme Court in that case was dealing with the powers of the Division Bench of the High Court under Order 47, rule 1 of the Civil Procedure Code, 1908, in relation to a review petition and pointed out that the scope of review in those circumstances must be confined to an error apparent on the face of the record and distinguished from a situation where an Appeal Court is entitled to reappraise the entire evidence on record. The learned Advocate submitted, on the basis of this Judgment, that this Court having laid down in its judgment that the powers of the Labour Court are to be distinguished from those of a normal Appellate authority has circumscribed the powers of that Court. Unfortunately, this submission constitutes a misreading of the judgment which has very clearly defamed the powers and which has also indicated the manner in which the review is required to be done and the further scope for enquiry that is open to that Court. In these circumstances, the contention that the judgment fetters the powers of the Labour Court or that it is likely to prejudice the course of proceedings before that Court is not only unjustified but devoid of substance.
8. Mr. Lakshminarayana, learned Advocate on behalf of the Corporation, vehemently opposed the application because he submitted that apart from its being without jurisdiction that it is a down right wrong and incorrect procedure and an attempt to reopen a case that has been finally decided and is, therefore, wholly impermissible. Secondly, he was extremely critical of what has happened in this proceeding, namely, the fact that a litigant changes his Advocate in so far as the earlier Advocate is no longer appearing in the proceedings and, thereafter, attempts to have a rehearing of the petition under the guise of a recalling application. He submitted that not only should this Court dismiss the application but that strictures should be passed as far as deprecating such tactics and that exemplary costs should be awarded as a deterrent. As far as these aspects of the matter are concerned, though it is most unfortunate that such an application was filed, I do not propose to penalise the litigant who is a very small person and who in his desperation might have run from Counsel to Counsel but I do consider that it was extremely wrong on the part of whosoever advised him to file the application and proceed with it. That unfortunately is a mystery because the previous Advocate is no longer appearing and no new appearance has been filed though Mr. Narasimhan argued the matter.
9. The situation that emerges, therefore, is that since such an application had been preferred, it was necessary in the interest of the working of this High Court to deal with some relevant aspects of such application in the hope that the Court will not be burdened with them in times to come and the judicial time which is extremely limited and precious can be devoted to dispensing justice in deserving cases. I.A. III accordingly fails and stands dismissed.