Omi Ram vs Presiding Officer, Industrial Tribunal-cum-Labour Court and Another

S.S. Nijjar, Actg. C.J.—The applicant M/s. K.N. Interplast Pvt. Ltd. (respondent No. 2) has filed this application under Article 226 of the Constitution of Indiaread with Order 47 Rules 1 and 2 and Section 114 of the CPC (CPC for short) for reviewing/recalling the order dated 7.3.2005 passed by a Division Bench of this Court. The review is sought on the ground that the very basis upon which the writ petition was allowed in favour of the petitioner did not exist as the award dated 17.8.2001 had, in fact, not been published in the official gazette. Therefore, the order dated 1.10.2003 of the learned Industrial Tribunal-cum-Labour Court, Rohtak (respondent No. 1) (''Labour Court'' for short) setting aside the earlier ex parte order dated 27.4.2001 and the award dated 17.8.2001 was within its jurisdiction.

The petitioner Omi Ram filed the writ petition seeking quashing of the order dated 1.10.2003 passed by the Labour Court (respondent No. 1) being without jurisdiction. The petitioner was appointed as Machineman with the applicant M/s. K.N. Interplast Pvt. Ltd. (respondent No. 2). His services were terminated on 2.6.1999, the dispute regarding which was referred to the Labour Court by the appropriate Government on 8.7.1999. The applicant-management of M/s K.N. Interplast Pvt. Ltd. (respondent No. 2) was proceeded ex parte on 27.4.2001 as it did not appear before the Labour Court (respondent No. 1) despite notice. The reference was thereafter answered in favour of the petitioner workman on 17.8.2001. The award that was passed directed that the petitioner be reinstated in service with continuity of service and 80% back wages. The copies of the award dated 17.8.2001 were forwarded to the Deputy Labour Commissioner, Panipat for implementation. Besides, it is pleaded in Para 9 of the writ petition that the award was published on 22.4.2002, which was clear from the certificate/order dated 22.4.2002 of the Labour Department, Haryana. A copy of the said order is attached as Annexure-P.4 with the writ petition. The management on being asked by the Deputy Labour Commissioner to implement the award, filed an application before the Labour Court for setting aside the order dated 27.4.2001 proceeding ex parte against the applicant and the ex parte award dated 17.8.2001. The Labour Court by its order dated 1.10.2003 set side the aforesaid ex parte order dated 27.4.2001 as also the award dated 17.8.2001. The petitioner sought the quashing of the said order dated 1.10.2003 passed by the Labour Court. A Division Bench of this Court on consideration of the matter held that the award rendered by the Labour Court setting aside the earlier ex parte award was wholly unsustainable. It was not disputed that the award dated 17.8.2001 was published in the official gazette on 22.4.2002 and the application for setting aside the award was not filed by the management till 25.9.2002 i.e., it was filed beyond 30 days after the publication of the award. Thus, by that time, it was held that the Labour Court had become functus officio.

Ms. Meenakshi Verma, Advocate, learned Counsel appearing for the applicant (respondent No. 2) submits that in fact the award had not been published in the official gazette dated 22.4.2002. A reference has been made to the case of a similarly situated employee, namely, Smt. Sudesh Devi of the same management i.e., the applicant-M/s K.N. Inter-plast Pvt. Ltd. (respondent No. 2). It is contended that in her case also an ex parte award was passed which was set aside by the learned Labour Court. The said Smt. Sudesh Devi also challenged the setting aside of the award by the Labour Court by way of C.W.P. No. 16460 of 2005 which was disposed of by this Court on 7.8.2006 and the order setting aside of the ex parte award passed by the Labour Court was maintained but subject to payment of Rs. 5,000/- by the employer. It is stated in the application seeking review that while arguing the said case, Counsel for Smt. Sudesh Devi, the petitioner in the said petition was specifically directed to produce the copy of the official gazette dated 22.4.2002 when the award was said to have been published. No such gazette notification was produced. Rather, the Counsel opposite placed on record documents and orders of the Deputy Labour Commissioner, Panipat wherein the mode of publication had been mentioned to the effect that the award was placed on the notice board of the office of Deputy Labour Commissioner, Panipat. It is submitted that the Counsel after coming to know of such type of publication made enquiries as to the mode of publication made in the present writ petition of Omi Ram and was told that the publication was exactly in the same manner as in the case of Smt. Sudesh Devi meaning thereby that there was no publication in the official gazette. In this manner, a wrong impression was given by the petitioner Omi Ram in the Labour Court as well as in this Court that the award dated 17.8.2001 of the Labour Court had been published in the official gazette.

We have given our thoughtful consideration to the matter. It may be noticed that while passing the order dated 7.3.2005�the review of which is sought it was not disputed by the Counsel appearing for the parties that the award dated 17.8.2001 was published in the official gazette on 22.4.2002. It is on account of the aforesaid admitted position on record that the award had been published that this Court came to the conclusion that the Labour Court (respondent No. 1) had become functus officio. Reliance has now been placed of the case of Smt. Sudesh Devi who had filed C.W.P. No. 16460 of 2005 in this Court which was disposed of on 7.8.2006. The records of the said case have been perused. In the said writ petition Smt. Sudesh Devi had prayed for setting aside the order dated 1.10.2003 passed by the Industrial Tribunal-cum-Labour Court, Rohtak being without jurisdiction. In terms of the order dated 1.10.2003 in Smt. Sudesh Devi''s case, the ex parte order dated 27.4.2001 and the ex parte award dated 17.8.2001 were set aside. Smt. Sudesh Devi filed C.W.P. No. 16460 of 2005 in this Court against the order dated 1.10.2003 setting aside the ex parte award dated 17.8.2001 in her case. A Division Bench of this Court on 7.10.2005 issued notice of motion for 7.2.2006 on the limited issue of reimbursement of costs to the petitioner workwoman therein as she for no fault on her part was made to go through the rigors of judicial proceedings once over again. The writ petition was disposed of on 7.8.2006 on the limited issue of reimbursement of costs to die workwoman who it was observed had not committed any fault and who was required to go through the rigors of judicial proceedings all over again. This Court was of the opinion that the workwoman (herein ought to have been awarded costs for being required to go through the ordeal of the entire process all over again for no fault ascribable to her. Resultantly, the order dated 1.10.2003 vide which the ex parte award dated 17.8.2001 had been set side was made subject to payment of costs of Rs. 5,000/-. The amount was to be paid by the management within the time framed by the Labour Court where the proceedings were pending.

In the said case of Smt. Sudesh Devi (C.W.P. 16460 of 2005), it was though pleaded by the petitioner-workwoman therein that the Labour Court had becomes functus officio after the expiry of a period of 30 days from the date of publication of the Award in terms of the provisions of Section 17 of the Industrial Disputes Act, 1947. However, this aspect was not gone into the said case as notice of motion was issued on the limited issue of reimbursement of costs to the petitioner-work woman who for no fault on her part was made to go through the rigors of judicial proceedings once again. The question whether the Award had been published or the effect of its publication was not gone into during the course of hearing of the said case. As to what happened or transpired in Sudesh Devi''s case is to be taken as conclusive and of absolute verity only on the basis of the orders passed therein. The pleadings of the applicant (respondent-2) as made in the application seeking review of the order passed by this Court that the Counsel for Smt. Sudesh Devi was specifically directed to produce the copy of the official gazette dated 22.4.2002 when the Award was said to have been published, is not discernible from the orders that had been passed in Smt. Sudesh Devi''s case C.W.P. 16460 of 2005. Therefore, an enquiry on the basis of the pleadings as now made is not to be conducted. The limited issue on which notice of motion was issued and the case was ultimately disposed of was confined only to the reimbursement of costs to the petitioner-workwoman therein. The said case is, therefore, confined to its own facts and circumstances and has no applicability to the case in hand.

It may, however, also be noticed that in the written statement filed in Smt. Sudesh Devi''s case a reference has been made to SLP (Civil) No. 13042 of 2005 which was filed against the order dated 7.3.2005, the review of which is now sought in the present case. The said SLP was disposed of on 25.7.2005 on the statement made by the learned Counsel for the petitioner that the petitioner, i.e. the applicant (respondent No. 2) herein, would file an appropriate application before this Court to challenge the award and in this view sought leave to withdraw the special leave petition. The SLP was accordingly dismissed as withdrawn. However, in the present review application the fact of filing SLP (Civil) No. 13042 of 2005 has been suppressed and no mention has been made with regard to the order passed by the Supreme Court on 25.7.2005, even though this fact is mentioned in the written statement filed by the applicant M/s K.N. Interplast Pvt. Ltd. (respondent No. 2) to the petition of Smt. Sudesh Devi.

In the circumstances, it is evident that in the case of Smt. Sudesh Devi the question whether the award of the Labour Court had been published in the official gazette or not was not in issue at the time of issuance of notice of motion or at the time of disposal of the case. Moreover, the fact of SLP having been filed in the Supreme Court of India against the order dated 7.3.2005, the review of which is now being sought, has been suppressed.

Even otherwise, a review is not permissible on the ground that the petitioner had not highlighted all the aspects of the case. In Haridas Das v. Ushu Rani Banik (2006) 4 SCC 76. it was observed by the Supreme Court that the parameters are described under Order 47 of the CPC which permit a rehearing "on account of some mistake or error apparent on the lace of the record or for any other sufficient reason". The former part of the rule, it was held deals with the situation attributable to the applicant and the latter part to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the explanation to Order 47 Rule 1, CPC. Besides, in Shivdeo Singh and Others Vs. State of Punjab and Others, , it was observed that there is nothing in Article 226 of the Constitution of India to preclude the High Court from exercising the, power of review which inheres in every Court of plenary jurisdiction to prevent the miscarriage of justice or 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 on the discovery of new and important mailer or evidence which, after the exercise of due diligence, was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised of any analogous ground. But it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal.

Therefore, for the mere failure on the part of the petitioner to highlight that the Award of the Labour Court had not been published and that, therefore, the very basis that the writ petition was allowed did not exist, does not in any manner affect the order passed by this Court on 7.3.2005�the review of which is sought.

For the foregoing reasons there is no merit in this review petition and the same is accordingly dismissed.