Krishan Chander vs Delhi Transport Corporation and Another

Siddharth Mridul, J.—The present petition seeks review of order dated 11th October, 2004 in view of the judgment of the Constitution Bench of Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Others, .

By the judgment and order dated 11th October, 2004 this Court disposed of two writ petitions being Writ Petition (Civil) No. 3379 of 2003 and Writ Petition (Civil) No. 5712 of 2003 filed by the workman and the Delhi Transport Corporation (for short "Corporation") respectively. The writ petition filed by the workman prayed for issuance of an appropriate writ/direction to the respondent to grant him reinstatement with consequential benefits after rejection of the application filed by the Corporation u/s 33(2)(b) of the Industrial Disputes Act, 1947 vide order dated 23rd October, 2002. The other petition filed by the Delhi Transport Corporation challenged the correctness of the order passed by the learned Industrial Tribunal dated 23rd October, 2002. Since both the petitions arose from one and the same award, it was considered appropriate to dispose of both these petitions by a common judgment.

Before addressing the rival contentions of the parties it will be relevant to adumbrate the facts giving rise to the present application:

(a) The applicant-workman was employed as a Driver with the Delhi Transport Corporation. He was served with charge sheet on 25th October, 1991 with the allegations that he availed 40 days leave without pay during the period between 1st January, 1991 to 30th June, 1991.

(b) Upon conclusion of a domestic enquiry held in accordance with the Rules a show-cause notice was served upon the workman on 24th November, 1992. Eventually, an order of punishment removing the workman from service of the Corporation was passed on 7th January, 1993.

(c) The Corporation, thereafter, applied for approval of the action under the provision of Section 33(2)(b) of the Act. The Industrial Adjudicator declined to approve the action of the Corporation and rejected its application vide order dated 23rd October, 2002.

(d) As aforesaid, the order dated 23rd October, 2002 was the subject matter of the writ petitions filed by both the parties before this Court. This Court vide order dated 11th October, 2004 after noticing that the workman had already been taken back into service by the Corporation and after careful consideration of the evidence recorded by the Industrial Adjudicator held that the impugned order dated 23rd October, 2002 did not call for any interference.

(e) On the merits of the writ petition filed by the workman claiming the relief of full back wages by virtue of the order dated 23rd October, 2002, this Court held that "...there are no specific averments made in the petition that he was not employed during the interregnum period of dismissal of his service till the date of his reinstatement. Furthermore, it cannot be presumed that he is a person who was incapable of earning. Workman is admittedly a driver. Thus, in normal course of life he would be able to make his two ends meet. In these circumstances and keeping in view the judgment of this Court in State of Haryana and Another Vs. Tilak Raj and Others, , it is not necessary for this Court to go into greater detail in relation to payment of back wages and particularly in view of the fact that there are no pleadings to the effect that workman was not able to get employment despite his best efforts".

(f) This Court vide the order dated 11th October, 2004 thereafter proceeded to consider the relevant portion of the judgment in M.P. State Electricity Board v. Smt. Jarina Bee (supra) and thereupon held as follows:

For the reasons afore-recorded, I allow this petition and direct the respondents to reinstate the workman with continuity of service with back wages, however restricted to 25% of the said wages for the interregnum period i.e. from the date of termination till reinstatement. I have restricted the back wages to 25%, keeping in view the absence of specific pleadings and normal conduct of the workman in the facts and circumstances of this case.

(g) Aggrieved and dissatisfied with the order of this Court allowing partially the writ petition vide order dated 11th October, 2004 the workman preferred an appeal numbered as LPA No. 1147 of 2005.

(h) A Division Bench of this Court vide its order dated 27th May, 2005 disposed of LPA No. 1147 of 2005 with the following order:

There is an inordinate delay of 165 days in preferring the appeal. On realizing the situation counsel came out with a case that the judgment delivered by the Constitution Bench of the Supreme Court cited before the learned Single Judge has not been considered. We find no reference to this in the impugned order. It is required to be noted that it was the duty of the counsel immediately after the judgment was received to move the concerned court but he has not done the same and is making grievance before this Court which cannot be granted. Therefore we are not entertaining the appeal. However it will be open for the appellant to file a review application in accordance with law. Permission granted. Rejected as withdrawn.

(i) In these circumstances the workman filed the present application dated 13th July, 2005 praying for a review of order dated 11th October, 2004 and consequently for grant of full back wages instead of 25% back wages granted thereby.

Mr. Chaturvedi, counsel appearing on behalf of the applicant firstly submitted that this Court had not considered the decision of the Constitution Bench in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and Ors. (supra), in terms of which the applicant was entitled for 100% back wages. Counsel for the applicant secondly submitted that the judgment under review dated 11th October, 2004 erred in fact, inasmuch as, there was a specific averment in the affidavit accompanying the writ petition to the effect that the workman was still unemployed and not working in any establishment and facing great financial hardship because the Corporation was not reinstating him with consequential benefits.

Per contra, Ms. Aarti Mahajan, counsel for the Corporation firstly stated that not only was the review petition filed belatedly after the rejection of the Letters Patent Appeal, and after a gap of more than nine months from the date of the order under review, but even the LPA No. 1147 of 2005, as noticed by the Division Bench, had been filed after an inordinate delay of 165 days. It was her submission that the review application is not maintainable as being time barred as it is neither accompanied by an application for condonation of delay, nor any explanation has been offered for the same. Counsel secondly urged that in the judgments cited in the order under review dated 11th October, 2004 fully support and substantiate the decision of the Single Judge of this Court. Lastly, she urged that there was no mistake or error in the order dated 11th October, 2004, inasmuch as, there was absolutely no specific averment in the body of the writ petition that the workman was not employed during the interregnum, and further that the affidavit in support of the petition does not constitute the petition itself. Furthermore, even in the affidavit in support, relied upon by the workman, it had only been stated that the workman was still unemployed and it was nowhere stated that he was unemployed even earlier or that he was continuously unemployed from the date of his dismissal from service.

Before considering the contentions raised before me during the course of hearing it would be useful to extract the relevant portions of the decisions relied upon by the parties in support thereof.

1) In Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and Ors. (supra), the Supreme Court after considering the question whether the rejection of approval u/s 33(2)(b) of the Industrial Disputes Act, 1947 renders the order of dismissal ineffective from the date it was passed or from the date of non-approval held that:

Where an application is made u/s 33(2)(b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not, etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 33(2)(b) dismissing or discharging an employee brings an end of relationship of employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement.

2) In M.P. State Electricity Board v. Smt. Jarina Bee (supra), and relied upon in the order under review dated 11th October, 2004 the Supreme Court stated that:

Shri S.K. Agnihotri, learned Counsel appearing for the Board, submitted that the Industrial Court as well as the High Court fell in grave error by holding that the award of back wages was the natural consequence in all cases where the order of removal was set aside. Mr. B.S. Banthia, learned Counsel appearing for the respondent (widow of the employee) submitted that the High Court was justified in its conclusion considering the fact that the order of dismissal was without sanctity in law. Alternatively, it was submitted that full back wages are to be paid, considering the nature of the allegations and findings recorded by the Labour Court, Industrial Court and the High Court and the directions cannot be faulted on the facts of the case.

In P.G.I. of M.E. and Research, Chandigarh Vs. Raj Kumar, , this Court found fault with the High Court in setting aside the award of the Labour Court which restricted the back wages to 60% and directing payment of full back wages. It was observed thus:

The labour court being the final court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the finding of the Tribunal or the labour Court. It is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect.

Again at paragraph 12, this Court observed:

Paying of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straight-jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety.

The position was reiterated in Indian Railway Construction Co. Ltd. Vs. Ajay Kumar,

Applying the legal principles, the inevitable conclusion is that the High Court committed an error in holding that the award of full backwages was the natural consequences.

3) In Allahabad Jal Sansthan v. Daya Shankar Rai and Anr. reported as 2005 V AD (SC) 224, the Supreme Court after considering and analyzing earlier decisions stated that:

We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full back wages was the usual result. But now with the passage of time, it has come to be realized that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at.

In view of the fact that the Respondent had been reinstated in service and keeping in view the fact that he had not raised any plea or adduced any evidence to the effect that he was remained unemployed throughout from 24.1.1987 to 27.2.2001, we are of the opinion that the interest of justice would be sub-served if the Respondent is directed to be paid 50% of the back wages.

4) In Delhi Transport Corporation v. Virender Singh 116 (2005) DLT 26, a Single Judge of this Court after considering the question of reinstatement with back wages pursuant to rejection of an application seeking approval of the Tribunal u/s 33(2)(b) of the Industrial Disputes Act, 1947, held as follows:

Learned Counsel appearing for the workman while relying upon the judgment of the Supreme Court in M.D.Tamil Nadu State Corporation v. Neethivilangam (supra) contended that wherever a direction u/s 33(2)(b) of the Act is declined inevitable conclusion will be that workman continues in employment as is his services were never terminated. This of course in law cannot be disputed but claim of back wages is not something which automatically flows to the principal relief of reinstatement granted to the workman in all cases and without exemption. In the writ petitions no averment has been made and it is not even normal human conduct that a workman would remain unemployed for this long period.

In view of the above judgments of the Supreme Court, I am of the considered view that the workman is entitled to reinstatement with back wages. However, in the interest of justice and keeping in view the circumstances of the present case I am further of the view that awarding of 40% back wages to the petitioner would meet the ends of justice.

It is true, 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. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised for the correction of a mistake but not to substitute a view. The power of review can be exercised where there is some mistake or error apparent on the face of the record, but cannot be exercised where different views on the same subject are possible. The limitations of the power of the Court under Order 47 Rule 1 CPC are similar and applicable to the jurisdiction available to the High Court under Article 226 of the Constitution of India. The Court in exercise of its power to review has to proceed with caution so as to ensure that such power is not exercised or permitted to be used for an arguably erroneous decision to be reheard and corrected. The review cannot be treated as an appeal in disguise and can be exercised only for correction of a patent error of law which is apparent on the face of the record and not an error which has to be traced after elaborate arguments being noted for establishing it. A review of a judgment is not maintainable if the only ground for review is that the point is not dealt in correct perspective, so long as the point is dealt with and answered. In Parsion Devi and Others Vs. Sumitri Devi and Others, the Supreme Court held as under:

It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise. An error which is not self evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record.

In the present case, it is observed that it is the case of the applicant that the order under review dated 11th October, 2004 did not consider the decision in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and Ors. (supra), inevitably and automatically entitling the workman for 100% back wages. It was urged on behalf of the petitioner himself that the said decision was cited in the petition before this Court. In this behalf it is noticed that in the order under review dated 11th October, 2004 this Court after considering the judgment of the Supreme Court in M.P. State Electricity Board v. Smt. Jarina Bee (supra), came to the conclusion that the award of full back wages was not warranted in the facts and circumstances of the case. The opinion so expressed constitutes a different view on the subject of payment of back wages, albeit a view that is possible, and as such, cannot be a ground to review the order dated 11th October, 2004. Furthermore, it is seen that the view expressed in the order under review relying upon the decision of the Supreme Court in M.P. State Electricity Board v. Smt. Jarina Bee (supra), has been cited with approval by the Supreme Court in the decision in Allahabad Jal Sansthan v. Daya Shankar Rai and Anr. (supra) and followed by this Court in the decision in Delhi Transport Corporation v. Virender Singh (supra). It is not a sufficient ground for review that the court should have taken a different view or the judgment proceeded on an incorrect exposition of the law. A mere error of law is not a ground for review, since a decision cannot be reviewed on the ground that it is erroneous. It must be an error of law apparent on the fact of the record to be amenable to review. For that the point of law involved must be indisputable. That situation, in any view, does not obtain in the instant case in relation to the issue of payment of full back wages. Therefore, the first submission on behalf of the applicant cannot be countenanced.

Insofar as the second submission urged on behalf of the applicant is concerned, I find considerable force in the contention made on behalf of the Corporation that, (a) there was no specific averment in the body of the writ petition that the workman was not employed during the interregnum period, (b) that the affidavit in support of the petition, although it mentioned that the workman is unemployed, cannot be said to constitute a part of the main body of the petition and (c) even otherwise the affidavit in support, only stated that the workman was still unemployed, without any specific pleading that the workman had been unemployed earlier or that he was continuously unemployed from the date of his dismissal from service.

Apart from the merits of the submissions made on behalf of the workman, it is observed that the application for review was filed only on the 13th July, 2005, after a gap of about nine months from the date of the order under review i.e. 11th October, 2004. Also that, even the LPA filed against the order under review had been filed after an inordinate delay of 165 days. Furthermore, the present application for review was not filed immediately after the rejection of the LPA on the 27th May, 2005 and was filed only on 13th July, 2005. The application for review is not accompanied by any application for condonation of delay, nor has any explanation been offered for the delay in filing the same. In this behalf, it is observed that, the Limitation Act prescribes a uniform period of 30 days for a review of judgment. The application for review is, thus, not maintainable even on this ground. In addition, the concept of finality of judgment ought to be enforced with its normal rigour. If the practice adopted by the applicant in the present case is permitted it will amount to undermining the concept of finality of proceedings, and in every case, the party who is not satisfied with the judgment, would seek a rehearing of the matter in the guise of review. It is a settled canon of law that merely because the parties are not satisfied with the judgment of the Court, or it was possible to take another view on reasonable interpretation of law and facts, that would itself be no ground for review of judgment. In the circumstances the application for review is an attempt on the part of the workman to have a rehearing which is impermissible in law.

For the foregoing reasons the review petition is without any merit and is accordingly dismissed, leaving the parties to bear their own costs.