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Judgment
S.K. Dubey, J.
The petitioner employer, by this petition under Article 226/227 of the Constitution of India has challenged the ex-parte award of the Labour Court (Annexure P-2) dated 15.7. 1987 direeting reinstatement and the order dated 10.8.1987. modifying the award of reinstatement with back wages and the order dated 20.2.91 dismissing the application of the petitioner for setting aside the ex-parte award.
Facts are not in much dispute. Respondent No. 4 was employed by 1.12.1981 in the establishment of the petitioner whose services were terminated vide order dated 27.4.83. The Respondent No. 4 raised an industrial dispute which was referred u/s 10. 12 of the Industrial Dispute Act 1947 (For short the ''Act''.) for adjudication of the Labour Court at Bhopal. The Labour Court issued the notice to the parties. The respondent No. 4 filed its statement of claim so as also the petitioner filed the written statement taking plea tht the respondent No. 4 was employed as Sales Officer therefore, does not fall within the definition of ''Workman" as defined in section 2 (5) of the Act. On the date fixed for recording of the evidence i.e. 3.7.86. the petitioner did not appear, therefore, the Labour Court ordered to proceed exparte against the petitioner. Ultimately exparte award was passed on 15.7.87, where in the Labour Court after appreciating the evidence and materilas adduced on recordd direccted reinstatement without back wages. Thereafter, the respondent No. 4 tiled an application for review/ modification of the award for awarding back wages. The Labour Court holding that it was a clerical error modified the award without notice to the petitioner and awarded back wages. This modified award was also sent for publication to Labour Commissioner Indore. which then was published and pronounced. The petitioner having come to know that the exparte award has been passed an application under order 9 rule 13 of the CPC for setting aside exparte award was filed, on the ground that the petitioner engaged the counsel. but, as the lawyers were abstaining from the work therefore, counsel wrote to the petitioner that the date of hearing will be intimated to the petitioner, till then petitioner need not come, the petitioner did not appear. This application was opposed. The petitioner examined his manager and exhibited theree letters of the Advocate which are at page 37. 38 & 39 of the paper book. The Labour Court after appreciating the evidence on record dismissed the application holding that no sufficient cause has been established as the letters exhibited are after thought and made up documents.
Shri R. K. Gupta & Shri C. M. Lal counsel for the petitioner and Shri L. P.Bbhargawa, Sr. Advocate with Shri R. C. Kohli and Shri Maindiratta counsel for respondent no. 4 heard.
It was contended by the petitioner that the Labour Court acted illegally in not setting aside the exparte award as there was a sufficient cause, as for the inaction on the part of the counsel, a party who has engaged a counsel for the proper conduction of the case cannot be made to suffer, relience was placed on a decision of Supreme Court in case of Rafiq and Another Vs. Munshilal and Another, . Next it was contended that the Labour Court when once pronounced the award which was published could not have modified the award by exercising power of review as the law is settled that a right of review does not exist unless conferred by statute or by necessary implication, reliance was placed on decisions in the case of Patel Narshi Thakershi and Others Vs. Shri Pradyumansinghji Arjunsinghji, and Manoharlal Verma Vs. State of Madhya Pradesh and Others, . In any case before modifying the award the labour Court ought to have issued the notice of the application to the petitioner. On merits it was submitted that when there was a specific stand that the respondent No. 4 was discharging the duties of a sales officer and was not a workman the Labour Court ought to have decided the reference against the respondent no. 4 as it is settled that a sales officer does not fall within the definition of workman, a decision of Supreme Court in case of Burmah Shell Oil Storage and Distribution Company of India Ltd. Vs. The Burma Shell Management Staff Association and Others, was pressed into service. Lastly it was submitted that after the award the petitioner was gainfully employed, therefore this Court on the application of the petitioner directed an enquiry. The Labour Court has recorded a finding that the petitioner was employed from 24.5.88 to 26. 12.89 and from 16.6.90 to 1.8.91 and then from 20.7.92 till the date of the report of the Labour Court dated 7.1.94 the respondent no. 4 was gainfully employed, therefore, the respondent no. 4 is not entitled to any back wages.
Shri L. P. Bhargawa learned counsel for respondent no. 4 supported the award and orders of the Labour Court and contended that the finding that the respondent No. 4 was a workman as defined in section 2 (S) of the Act is based on appreciation of evidence which cannot be interfered under Article 227 of the Constitution of India so also the finding that there was no sufficient cause can be interefered in the supervisory jurisdiction under Article 227 of the Constitution of India, reliance was placed on the decision of the Supreme Court in case of Mohd. Yunus Vs. Mohd. Mustaqim and Others, . As regards the modification of award it was submitted that the power was exercised under Rule 28 of the M. P. Industrial Disputes Act. Rules. 1957. (for short the ''Rules''), as it was a clerical or accidental slip. Therefore, the order of modification of the award cannot be interfered with. As regards the payment of back wages it was submitted that the petitioner has not paid the full amount to the workman of the period in which the petitioner was not found to be gainfully employed, therefore, the petition be dismissed and the workman be allowed to join his duties.
After hearing counsel on both sides and giving due consideration to the facts of the case. I am of the opinion that the order rejecting application under order 9 rule 13 C. P. C. does not call for any interference, as the Labour Court, after appreciation of evidence has reached to the conclusion that the letters exhibited are concocted and after thought documents, which were not even proved by examining the author of the letters that is advocate. His affidavit was also not filed, therefore, hence the finding that the petitioner failed to establish the sufficient cause is neither perverse nor menilestly illegal and cannot be interfered in the supervisory jurisdiction under Article 227 of the Constitution of India. See Mohammad Yunus case (supra).
Coming to the modification of the award. I an of the view that the Labour Court by the award dated 15.7.1987 departed with the normal rule, on declaration of termination order is bad of granting thereliel of reinstatment with full wages and granted only reinstatement. The refore. the award in exercise of its powers under Rule 28 of the Rules could not have been modified, treating it to be a case of typing error. For that it would be appropriate to extract the Rule 28, which reads thus :
Correction of errors; The Labour Court. Tribunal or Arbitrator may correct any clerical mistake or error arising from an acciedental slip or omission in any award it/he issues.
A bare reading of this rule shows that this power does not confer power of review. Law is well settled that power of review must be conferred by law either specifically or by necessary implication, it cannot be exercised under inherent powers. See the decisions of M/s Ibrahim & Co. and Manoharlal (supra).
Learned counsel for respondent No. 4 also did not bring to the notice of this Court any provision in the Act or Rules from which it could be gathered that the Labour Court has power to review or modify the award once pronounced by it. Rule 28 gives power only to correct any clerical mistake or error arising from an accidental slip or omission in the award. It represents that which the Court never intended to say. It is an error apparent on the fact of the record and does not upon its discovery on arguments or deputation.
In the original award the Labour Court only granted reinstatement departing with the normal rule of reinstatement and back wages. This normal rule of reinstatement and hack wages, on an order of discharge, dismissal or retrenchment being demolished was considered by the Supreme Court in case of Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan Tin Works Pvt. Ltd. and Others, . wherein, para 11 it was observed thus :
In the very nature of things there cannot be strait-jacket formula for awarding rebel of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage Tribunal will exercise its discretion keeping in view ail the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the fact of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice. according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular (See Susannah Sharp v. Wakefield 1891 A. C. 173 at Page 179.
In the present case the petitioner filed its written statement objecting to reinstatement and back wages on the groung of loss of confidence, but because of petitioners absence, the case proceeded exparte against the petitioner. Even on expurte evidence and on the material on record the Labour Court did not exercise the discretion to award back wages and departed with the normal rule. Therefore, the respondent No. 4 ought to have challenged that part of the award in an appropriate forum, but could not have applied for modification of the award by making application for review under inherent powers, even if discretion was not exercised judiciously for the reason that it requires reconsideration of the matter in hearing of arguments. Therefore, the award so modified by the order dated 10.8.1987 so far as it relates to award of back wages till the date of the award cannot be sustained and is hereby quashed.
On merits of the contention that the respondent No. 4 was not a workman u/s 2 (S) of the Act. the finding recorded and conclusion reached that the respondent No. 4 was not a Sales Officer'' is a finding of fact and hence, cannot be interefered in supervisory jurisdiction under Article 227 of the Constitution
In the result, the petition is partly allowed the petitioner is directed to reinstate the respondent No. 4 and to pay the amount of pay of the period from the date of the award till the date of reinstatement after adjusting the amount already paid of the period in which the petitioner was found to be gainfully employed. The petitioner shall also bear the costs of this petition which are quantified as Rs. 1000-.