Bombay High Court
Kalavati Bharsingh Thapa vs Maharashtra Plastic Industries on 11 August, 2004
Equivalent citations: 2005(1)MHLJ631
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
JUDGMENT R.M.S. Khandeparkar, J.
1. Heard the learned advocates for the parties. Perused the records.
2. The short point which arises for consideration is that on final disposal of the complaint under MRTU and PULP Act, 1971 (hereinafter called as "the said Act") whether the Labour Court would have the power to review its judgment. The facts of the case disclose that the workman filed the complaint under the said Act before the Labour Court alleging unfair labour practice under Item No. 1 of Schedule IV of the said Act. After hearing the parties, the Labour Court by its order dated 20th April, 1994 directed reinstatement of the workman with continuity in service and full backwages from 6th December, 1984. The respondents filed an application for review of the said order being Misc. Review Application (ULP) No. 10 of 1994. The same was allowed by the Labour Court by its order dated 15th July, 1994. The workman filed revision application being Application (ULP) No. 1000 of 1994 before the Industrial Court which came to be rejected by an order dated 27th October, 1999. The workman thereafter filed the Review Application being Application (ULP) No. 26 of 1999 before the Industrial Court. However, the same came to be dismissed on 1st March, 2001. During the pendency of the review application, the workman expired on 7th March, 2000 and thereafter, the petitioner was brought on record as the legal representative of the deceased workman. The grievance of the petitioner is that the Labour Court after disposing of the complaint on merits, has sought to entertain the review application at the instance of the Opponent in the said complaint on the ground that certain documents were not brought to the notice of the Labour Court at the time of the disposal of the said complaint.
3. The learned advocate appearing for the petitioner has submitted that there is no provision empowering the Labour Court to review its judgment passed in the complaint filed under the said Act. A limited power of review available under sub-section (2) of Section 30 of the said Act relates to the interim orders passed in such complaint and not to the final order disposing the complaint, and therefore, the Labour Court is not empowered to review the final judgment passed in the complaint. On the other hand, the learned advocate appearing for the respondents placing reliance in the decisions of the Apex Court in Grindlays Bank Ltd. v. The Central Government Industrial Tribunal and Ors. , and in the matter of Union of India and Anr. v. Ashwani Kumar, reported in 1994 (I) LLJ 677 and of the learned Single Judge of this Court in the matter of Mafatlal Engineering Industries Ltd. v. Mafatlal Engg. Industries Employees' Union and Ors. reported in 1991 Mh.LJ. 1359 = 1992(1) CLR 418 submitted that the power to review can be exercised in two distinct senses, (i) a procedural review and (ii) a review on merits. Considering the fact that the relevant documents and the Metropolitan Magistrate's order, based on which earlier judgment was passed were in fact stayed, and the said fact was not brought to the notice of the Labour Court earlier, and was sought to be brought to the notice of the Labour Court in review petition, the same would amount to a procedural review, applying the law laid down by the Apex Court in Grindlays Bank (supra), and therefore, no fault can be found with the order passed by the Labour Court.
4. It is well settled law that the power of review can be exercised only in cases where the statute, which governs the court proceedings, permits the exercise of such power. The power to review has always been a creature of statute. Unless such power is provided by the statute, the Court cannot review its judgment. Of course, the order passed inadvertently or the one obtained by fraud or on false representation could be an exception to the said rule. Nevertheless, the review cannot be ordered on the ground of the judgment being wrong on merits. Such a power can never be allowed to be exercised as substitute for the appellate Court's powers nor it can be exercised to rehear and correct an erroneous decision on merits. The object behind such power is not to enable the Judge to write his second judgment on the ground that the first judgment was wrong.
5. If one peruses the provisions of MRTU and PULP Act, 1971, it is apparent that a Court disposing the matters under the said Act is not empowered to review its judgment. Undoubtedly, proviso to sub-section (2) of Section 30 speaks of review of interim orders. However, the same is restricted to the cases of interim orders. Secondly the expression "review" used in the said provision of law is to be understood bearing in mind the nature of the orders which are contemplated under sub-section (2) of Section 30 itself. Considering the same, the review contemplated under the said proviso is in the nature of the review provided under Order XXXIX of the Code of Civil Procedure in relation to the ex parte temporary injunction orders or interim orders passed thereunder. Sub- section (2) of Section 30 clearly speaks of interim orders during the pendency of the main proceedings under the said Act. Proviso clearly specifies the review of "interim order". Being so, merely because the Courts acting under the said Act are empowered to review the interim order under the said proviso that would not entitle the Court to exercise such power in relation to the final orders passed at the conclusion of the proceedings under the said Act. Once the Court disposes the proceedings before it with final order, it renders itself functus officio in relation to such proceedings, and being so, in the absence of specific power to review, the order passed finally disposing of the matter, the Courts under the said Act do not enjoy inherent power like the one available in the Courts with plenary jurisdiction and, therefore, cannot review such final orders.
6. Attention was sought to be drawn to sub-section (3) of Section 30 to contend that the Courts under the said Act have the same powers as are vested in a Civil Court and, therefore, the powers available under the Code of Civil Procedure for the purpose of review of the judgment will also be available to such Courts. Sub-section (3) of Section 30 provides that for the purpose of holding an enquiry or proceeding under the said Act, the Court shall have the same powers as are vested in Courts in respect of proof of facts by affidavit; summoning and enforcing the attendance of any person, and examining him on oath; compelling the production of documents; and issuing commissions for the examination of witnesses. In fact, no elaborate discussion is required to reject the contention sought to be raised in this regard as the law on this point is well settled to the effect that merely because the Tribunal enjoys the power to record evidence in the same manner as any Civil Court is entitled to record the evidence, that itself would not empower the Tribunal to exercise all powers under the Code of Civil Procedure. In this connection, attention was sought to be drawn to the decision of the Apex Court in Grindlays Bank's case. It is to be noted that the decision in Grindlays Bank's case (supra) was in relation to the provisions of the Industrial Disputes Act and Section 11(3) thereof which clearly speaks of Court and Tribunal exercising powers under the Industrial Disputes Act to have the same powers as are vested in Civil Court under the Code of Civil Procedure. In fact, sub-section (3) of Section 11 of the Industrial Disputes Act provides that every Board, Court, Labour Court, Tribunal and National Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit, in respect of the matters namely, enforcing the attendance of any person and examining him on oath; compelling the production of documents and material objects; and issuing commissions for the examination of witnesses; and in respect of such other matters as may be prescribed, and every inquiry or investigation by a Board, Labour Court, Tribunal and National Tribunal shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860). Considering the said provision of law, the Apex Court in Grindlays Bank's case had held that "under clause (d) thereof, the Tribunal or such other authorities have also the same powers as are vested in Civil Courts under the Code of Civil Procedure, 1908 in respect of such other matters as may be prescribed." Further taking note of Rule 22 of the Industrial Disputes (Central) Rules, 1957 which provides that:-
"If without sufficient cause being shown, any party to proceedings before a Board, Court, Labour Court, Tribunal, National Tribunal or arbitrator fails to attend or to be represented, the Board, Court, Labour Court, Tribunal, National Tribunal or arbitrator may proceed, as if the party had duly attended or had been represented".
Further, Rule 24(b) of the said Rules provides that:-
"in addition to the powers conferred by the Act, Boards, Courts, Labour Courts, Tribunals and National Tribunals shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the matters, namely;
(a)...............
(b) granting adjournment."
it was held that:-
"It is needless to stress that where the Tribunal proceeds to make an award without notice to a party, the award is nothing but a nullity........... The language of Rule 22 unequivocally makes the jurisdiction of the Tribunal to render an ex parte award, conditional upon the fulfilment of its requirements. If there is no sufficient cause for the absence of a party, the Tribunal undoubtedly has jurisdiction to proceed ex parte. But if there was sufficient cause shown which prevented a party from appearing, then under the terms of Rule 22 the Tribunal will have had no jurisdiction to proceed and consequently, it must necessarily have power to set aside the ex parte award........Under Rule 24(b) a Tribunal or other body has the powers of a Civil Court under Order XVII of the Code of Civil Procedure relating to the grant of adjournments......".
The said ruling was in the facts of the case wherein the Tribunal had refused to grant adjournment and had proceeded to make ex parte award and therafter the respondents applied for setting aside the ex parte award on the ground that they were prevented by sufficient cause from appearing when the reference was called out for hearing on December 9, 1976, then the Tribunal, by its order dated 12th April, 1977 had set aside the ex parte award on being satisfied that there was sufficient cause within the meaning of Order IX, Rule 13 of the Code of Civil Procedure. The Apex Court was dealing with an issue that on passing of an ex parte award based on the evidence, whether the Tribunal becomes functus officio on the expiry of 30 days from the date of publication of such ex parte award under Section 17, by reason of sub-section (3) of Section 20 and, therefore, lacks jurisdiction to set aside such award and the Central Government alone can have power under sub-section (1) of the Section 17-A to set it aside. Obviously, it was not the case of review of the final order passed in a proceeding. It was a specific case wherein the adjournment was refused on account of the provisions contained in Rule 22 of the Industrial Disputes (Central) Rules, 1957. It was held that when there was sufficient cause for a party to remain absent and on that count had sought adjournment and the same was refused and the Court had proceeded to dispose of the matter finally, then the final disposal in such a case would be an order without jurisdiction in view of the provisions of law comprised under Rule 22 and, therefore, it would be a nullity and hence the Court would be justified in exercising powers under Order IX, Rule 13 of the Code of Civil Procedure in relation to such order. That would not lead to a conclusion that the Courts which have not been bestowed with the power of review would be entitled to review the judgments passed disposing the matter finally.
7. In the case in hand, it is not in dispute that the matter was finally disposed of by the Labour Court by its judgment and order dated 20th April, 1994, and the review was sought on the ground that certain documents were not brought to the notice of the Labour Court when it disposed of the complaint. It was not sought on the ground of any error apparent on the face of record. That apart, in the absence of power of review being given to the Labour Court, as already stated above, there was no question of Labour Court entertaining the review application.
8. A decision in Mafatlal Engineering Industries Ltd. 's case (supra) is of no assistance to contend that the Labour Court is entitled to exercise such review powers. Firstly, the decision in Mafatlal Industries case was on the point as to whether the order passed in Writ Petition could be reviewed by the High Court. The said decision was passed on the basis of the ruling of the Apex Court in Aribam Tuleshwar Sharma v. Aribam Trishak Sharma and Ors., wherein it was held that there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. The Labour Courts under the Act do have plenary jurisdiction. Every Court of plenary jurisdiction has inherent power to correct its orders which, if allowed to remain in force, can result in miscarriage of justice. That would not empower the Labour Court to exercise the similar power of review. Being so, the decision in Mafatlal industries' case (supra) is of no assistance to the respondents.
9. The decision of the Apex Court in Ashwani Kumar's case is also of no assistance to the respondents. In the said case, it was held that "it is well known that when any objection is taken before this Court in respect of any error in the order of the High Court or the Tribunal, it is only proper to bring that error to the notice of the High Court or the Tribunal by filing a review application." It is well settled law that every decision is an authority for what it actually decides and not what follows from it, and the law in that regard is well explained by the Apex Court in the matter of Union of India and Ors. v. Dhanwanti Devi and Ors., . In Ashwani Kumar's case (supra), it is nowhere held that any Court or Tribunal exercising powers by virtue of the provisions of law under a particular statute would be entitled to exercise any inherent power as such or any power beyond the scope of the power specifically given to such Courts under the statute under which they are established.
10. For the reasons stated above, the petition succeeds and the impugned order as well as the order of review passed by the Labour Court cannot be sustained and are, therefore, quashed and set aside and the original judgment and order dated 20th April, 1994 is restored as being the final pronouncement in the Complaint (ULP) No. 86 of 1985. The rule is made absolute in above terms with no order as to costs.