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2004 DIGILAW 654 (GAU)

Basanta Saikia v. Assistant Labour Commissioner

2004-12-23

D.BISWAS, RANJAN GOGOI

body2004
JUDGMENT Ranjan Gogoi, J. 1. This review application has been filed praying for review / recall of the order dated 13.5.2002 passed by this Court in Writ Appeal No. 121/2002 . 2. The facts in brief may be noted at the outset. By an order dated 28.8.1992, the review petitioner, who was a Mazdoor in the Oil India Limited, was discharged from service after holding an enquiry. The charge levelled against the review petitioner is one of absence from duty without leave for almost one and half years. The petitioner, after unsuccessfully exhausting the remedy of a departmental appeal, instituted a writ proceeding before this Court which was registered and numbered as Civil Rule No. 3576/94. By the order dated 30.3.1995, the aforesaid writ proceeding was disposed of by this Court by holding that the petitioner should avail of his remedies under the provisions of the Industrial Disputes Act. Thereafter, in the year 1996, the petitioner approached the Conciliation Officer and a conciliation proceeding under the provisions of Section 12 of the Industrial Disputes Act, was initiated by the Assistant Labour Commissioner at Dibrugarh. At the end of the aforesaid proceeding, an order dated 16.12.1996 was passed by the Assistant Labour Commissioner, Dibrugarh, closing the aforesaid conciliation proceeding. Thereafter, the review petitioner approached this Court by instituting a second writ petition which was registered and numbered as Civil Rule No. 1692/97. The said writ petition having been dismissed by the judgment and order dated 22.11.2001 on the grounds and reasons stated, Writ Appeal No. 121/2002 was filed. 3. The Bench hearing Writ Appeal No. 121/2002 after taking note of the facts, took the view that the order of the Assistant Labour Commissioner closing the conciliation proceeding on the ground of delay on the part of the petitioner in seeking his redress under the provisions of the Industrial Disputes Act, thereby, rendering the claim raised as a stale claim and the agreement of the learned Single Judge with the said conclusion as expressed in the order dated 22.11.2001, was not correct, inasmuch as, in the facts of the case, no delay could be attributed to the petitioner. However, the Court taking into account the fact that reference of the matter for an industrial adjudication and the possibility of offshoot litigations arising from such adjudication would cause further delay, considered it prudent and appropriate to go into the merits of the dispute i.e. validity of the discharge of the petitioner from service. The records in original having been placed before the Court, the same were duly considered and taking into account certain letters written by the petitioner which were found to be an admission of the petitioner remaining absent without leave, the Division Bench found no infirmity with the order of discharge passed by the authority. Consequently, the writ appeal was dismissed by the order dated 13.5.2002. Aggrieved, the present review application has been filed by the writ petitioner/appellant. 4. We have heard Mr. K.K. Mahanta, learned counsel for the review petitioner and Mr. S.N. Sarma, learned counsel appearing on behalf of the respondents. 5. Mr. Mahanta in support of the review prayed for has contended that the relief prayed for by the writ petitioner in the writ proceeding was for a reference of the industrial dispute, with regard to his discharge, to the Industrial Court for adjudication. The order of discharge of the petitioner from service was not challenged in the writ petition. In such a situation, exercise of jurisdiction by the Appellate Bench to decide on the merits of the discharge order, disclosed an error apparent on the face of the record which is liable to be corrected in exercise of the review powers. The learned counsel has further submitted that the provisions of the Industrial Disputes Act having provided a mechanism as well as a specific forum for redress of the grievances of industrial workers, the exercise of jurisdiction by the Appellate Bench on the merits of the controversy is plainly without authority and the order dated 13.5.2002 of the Appellate Bench having nullified the procedure prescribed by the Industrial Disputes Act, the said order discloses a patent error which would require correction in exercise of the power of review. Lastly, it has been submitted by Mr. Mahanta, learned counsel, that the petitioner has been prejudiced by the adjudication made by the Appellate Bench on the merits of the discharge order, inasmuch as, the petitioner has been denied the opportunity of adducing relevant evidence and materials in defence. Lastly, it has been submitted by Mr. Mahanta, learned counsel, that the petitioner has been prejudiced by the adjudication made by the Appellate Bench on the merits of the discharge order, inasmuch as, the petitioner has been denied the opportunity of adducing relevant evidence and materials in defence. The order has caused injustice and, therefore, the present is a fit case wherein this Court may exercise the powers of review. Though reliance has been placed on a large number of decisions of the Apex Court as well as this Court in support of the contentions advanced, specific notice may be taken of the decision of the Apex Court in the case of S. Nagaraj and Ors., Petitioner v. State of Karnataka and Anr. The reliance placed on paragraph 18 of the aforesaid judgment may particularly be noticed in this regard. "18. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would have not exercise the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. Rut the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law the scope is still wider. Technicalities apart if the Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law the scope is still wider. Technicalities apart if the Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order. Here as explained, the Bench of which one of us (Sahai, J) was a member did commit an error in placing all the stipendiary graduates in the scale of First Division Assistants due to State's failure to bring correct facts on record. But that obviously cannot stand in the way of the Court correcting its mistake. Such inequitable consequences as have surfaced now due to vague affidavit filed by the State cannot be permitted to continue." 6. The arguments advanced on behalf of the review petitioner have been refuted by Mr. S.N. Sarma, learned counsel for the respondents. According to Mr. Sarma, the challenge in the writ petition filed by the review petitioner was against the order dated 16.12.1996 passed by the Assistant Labour Commissioner, Dibrugarh closing the conciliation proceeding initiated at the instance of the review petitioner. The learned counsel has submitted that in the said proceeding the Management had filed a written statement justifying the order of discharge of the petitioner and the petitioner being unauthorisedly absent from duty for as long as a year and a half, the Management in the proceedings before the Assistant Labour Commissioner had objected to any kind of settlement of the dispute. The order of closure of the proceeding by the Assistant Labour Commissioner, notwithstanding the language used, is in effect a failure of the conciliation and the report of such failure of the conciliation was required to be sent under the provisions of Section 12(4) of the Industrial Disputes Act to the Government. The learned counsel has submitted that no mandamus is liable to be issued compelling the State Government to make a reference to the dispute under the provisions of the Industrial Disputes Act and it is upon taking into account the said fact as well as the possible delay that may be occasioned that the Appellate Bench in its order dated 13.5.2002 had adjudicated on the merits of the dispute. The learned counsel by placing reliance on the judgment of the Apex Court in the case of Dhari Gram Panchayat, Appellant v. Saurashtra Mazdoor Mahajan Sang and Anr., Respondents has submitted that the magnitude of the powers available to the Writ Court under Article 226 of the Constitution contains no expressed limitation or bar and the reluctance of the Writ Court to enter into matters pertaining to an industrial dispute is on account of self-imposed limitations. In the present case, having regard to the uncertainty of the time frame for which the litigation between the parties could have extended, the Appellate Bench by the order dated 13.5.2002 thought it proper to enter into the merits of the dispute with regard to the validity of the discharge order. The jurisdiction having been exercised on the aforesaid ground, no error much less an error apparent on the face of the record is discernible so as to warrant exercise of the review power. 7. The rival contentions advanced on behalf of the parties have received our anxious consideration. We have noted the background and the facts and circumstances in which the Appellate Bench while considering Writ Appeal No. 121/2002 thought it proper to enter into the merits of the dispute as regards the validity of the order of discharge of the petitioner. After recording the finding that the action of the authority under the Industrial Disputes Act leading to refusal to refer the dispute to the Industrial Court on the ground stated i.e. delay on the part of the petitioner, was not correct, the Appellate Bench in order to shorten the litigation between the parties decided to enter into the legality of the discharge order. There is no law prohibiting recourse to such an action by the Writ Court if the facts of the case could justify the same. The plenary powers under Article 226 are meant to strike at injustice whenever such injustice comes to the notice of the Court. The reluctance and refusal of the Writ Court to enter into the merits of an industrial adjudication is not on account of any inherent lack of jurisdiction. Such course of action, on the contrary, is prompted by reasons of self-imposed limitations. The reluctance and refusal of the Writ Court to enter into the merits of an industrial adjudication is not on account of any inherent lack of jurisdiction. Such course of action, on the contrary, is prompted by reasons of self-imposed limitations. In such a situation, assumption of jurisdiction by the appellate Bench to decide the merits of the dispute, per se, cannot be said to have occasioned an error apparent on the face of the record. Whether in the given facts of the case such an exercise was prudent is a matter which can only be resolved after a detailed consideration. What is required for exercise of review power is not whether the order is erroneous but whether it is so erroneous that the error appears on the very face of the order. The observations of the Apex Court in the case of S. Nagaraj (supra) must be understood in the proper context. In S. Nagaraj (supra) the order of the Apex Court which was reviewed proceeded on the basis of incomplete if not altogether wrong data made available to the Court by the State. In the facts and circumstances of the present case, we are inclined to take the view that the exercise of jurisdiction by the Appellate Bench cannot be said to have given rise to an error apparent on the face of the record so as to justify resort to the powers of review vested in us. Whether the course of action adopted by the Appellate Bench was correct in the given facts of the case is a matter on which we express no opinion as we would not be concerned with the same in exercise of the review power. 8. In view of the foregoing discussions we are of the view that in the present case, it would be proper for us to decline to exercise our review powers leaving it open to the review petitioner to avail of such other remedies as may be available to him under the law.