Chairman, Town Area & Another v. State of U. P. and Others
2014-03-14
RAM SURAT RAM (MAURYA)
body2014
DigiLaw.ai
JUDGMENT Civil Misc. Review Application No. 378138 of 2013 Ram Surat Ram (Maurya),J.:- Heard Sri Arvind Srivastava, for the petitioners and Sri Brajesh Shukla for the respondents. 2. The writ petition, which was filed against the award of Labour Tribunal was dismissed by judgment dated 13.09.2013. The petitioners have filed this review application along with delay condonation application. In the affidavit, it has been stated that judgment was not uploaded on internet up to 11.11.2013. A copy of the judgment was produced by the respondents on 25.11.2013. Then an inquiry was made and certified copy of the judgment was obtained and review application was filed. Short delay in filing the review application is condoned. The review application was heard and is decided on merit. 3. The counsel for the petitioners has raised the following grounds in support of the review application:- A. Because this Hon'ble court failed to consider that no finding having been given by the Tribunal about the delegation of power to Sri Prem Garg to act as state government and this fact having not been disputed by the respondent in the writ proceeding the learned single judge has made an error apparent on the face of record. B. Because the petitioner being not an industry and was discharging sovereign functions and the decisions by this Hon'ble Court made an error apparent on the face of record is not awaiting for the decision of the larger bench. C. Because this Hon'ble Court had made an error apparent on the face of record in stopping the petitioner to challenge the correctness of the reference after the award is made. D. Because this Hon'ble Court failed to address on the case issue whether the respondent had resigned on 31.07.1992 or nor which the tribunal fails to address in absence of a reference by the state government to this effect the Hon'ble Court made an error apparent on the face of record.
D. Because this Hon'ble Court failed to address on the case issue whether the respondent had resigned on 31.07.1992 or nor which the tribunal fails to address in absence of a reference by the state government to this effect the Hon'ble Court made an error apparent on the face of record. E. Because, the resignation letter dated 31.07.1992 being on record alongwith categorical averment that the respondent had not worked this Hon'ble Court made an error apparent on the face of record in giving him back wages and continually in service which is in teeth of the decisions passed by the Apex Court apart from in violation of the principal of no work no pay as admittedly the respondent has not worked during the pendency of the dispute either before this Hon'ble Court or before the tribunal has not stated that he is not gainfully employed. F. Because the petitioner is not an industry therefore the award given by the Labour Tribunal is without jurisdiction. G. Because, the Deputy Labour Commissioner Sri Prem Garg has not been delegated the power to act as State Government therefore made by him is illegal. H. Because, the issue referred for jurisdiction to the Tribunal having been incorrectly framed the award is vitiated in the eyes of law and the Tribunal has exceeded its jurisdiction in passing award. I. Because, the appointment of the respondent having been made without any advertisement the appointment was void abinitio. J. Because, the provisions of 6N of the U.P. Industrial Dispute Act having been complied and in fact the respondent having resigned on 31.07.1992 the finding given by the Tribunal is perverse and totally contrary to record. K. Because, the employee having appointed on a consolidated salary of Rs. 20 without any advertisement having worked and further being in gainful employment the Tribunal made an error apparent on the face of record in giving of award of reinstatement with 50% back wages. L. Because, there are no material or pleading by the respondent to prove that section 6N has been violated, the finding recorded by the Tribunal is perverse and irrational. M. Because, the tribunal made a manifest error of law in assuming that because the respondent had sent letters complaining the alleged obstruction by petitioner in his signing attendant register, the resignation letter was not given and section 6N has been violated is perverse, irrational and arbitrary.
M. Because, the tribunal made a manifest error of law in assuming that because the respondent had sent letters complaining the alleged obstruction by petitioner in his signing attendant register, the resignation letter was not given and section 6N has been violated is perverse, irrational and arbitrary. N. Because, there being no pleading or evidence to show termination of service of respondent the finding of the tribunal that provisions of section 6N have been violated are irrational, perverse to which no reasonable man of ordinary prudence could arrive. O. Because, the order dated 08.07.1997 having been passed on perverse grounds in an irrational manner depriving the petitioner to add documentary evidence to show that the respondent was employed and had resigned the Labour Tribunal acted with manifest illegality. 4. The counsel for the petitioners has argued before this Court following points: - (i) That Town Area Committee was constituted under U.P. Town Area Act, 1914. By the Constitution (73rd Amendment) Act, 1992, it has been provided constitutional status and is a local self government, discharging sovereign functions. It cannot be treated as an 'industry' as defined u/s 2(k) of U.P. Industrial Disputes Act, 1947. (ii) Respondent-3 voluntarily resigned from his duties which was accepted by the petitioner, as such, there was no termination of service. (iii) The respondent-3 was appointed as a daily wage employee on fixed salary of Rs. 20/- per day. Order for reinstatement in service on a permanent post was without jurisdiction. (iv) Engagement of respondent-3 was without advertisement of post and without following procedure for selection, as such, he was not entitled to claim his appointment or retaining over a permanent post. (v) Reference ought to have been as to whether respondent-3 voluntarily resigned but it has been illegally referred about termination of service. 5. The writ petition was filed against the award of Labour Court dated 02.03.1998, setting aside the order of Chairman, Town Area Committee dated 01.08.1992 and directing to reinstate Brijesh Kumar Batta (respondent-3), in service and to pay half of the wages during this period and order dated 09.07.1997, rejecting the applications 20-D and 21-D of the petitioners. It is stated that Brijesh Kumar Batta (respondent-3) was appointed as a daily wage employee in the Town Area on 20.08.1989, who voluntarily submitted his resignation on 31.07.1992, which was accepted on 01.08.1992.
It is stated that Brijesh Kumar Batta (respondent-3) was appointed as a daily wage employee in the Town Area on 20.08.1989, who voluntarily submitted his resignation on 31.07.1992, which was accepted on 01.08.1992. Subsequently, on the application of Brijesh Kumar Batta (respondent-3) State of U.P. made a reference under Section 4-K of U.P. Industrial Disputes Act, 1947, which was registered as Adjudication Case No. 122 of 1993 before Labour Court 1st, U.P. Kanpur. Before the Labour Court the petitioners contested the dispute. The petitioners filed an application for bringing on record the resignation of respondent-3 on record, which was rejected by Labour Court by order dated 09.07.1997. Labour Court by award dated 02.03.1998, setting aside the order of Chairman Town Area Committee dated 01.08.1992 accepting the resignation of respondent-3 and directed to reinstate Brijesh Kumar Batta (respondent-3), in service and pay half of the wages from 01.08.1992 till reinstatement. 6. Before this Court apart from oral arguments, the parties also filed written arguments, which is on record. In the written arguments, the petitioners raised following points namely (1) Town Area Committee is not an industry. (2) Sri Prem Garg, Deputy Labour Commissioner was not delegated the powers of State Government, reference of industrial dispute by him was without jurisdiction. (3) Issue relating to the jurisdiction of Deputy Labour Commissioner to refer the dispute was incorrectly framed and Tribunal has exceeded its jurisdiction in passing the award. (4) Appointment of respondent-3, having been made without any advertisement was void ab initio. (5) The provisions of Section 6 of U.P. Industrial Disputes Act, 1947 was not complied with and in fact the respondents having resigned on 31.07.1992 and the finding of Tribunal contrary to it was perverse. (6) Respondent-3 was appointed on consolidated salary of Rs. 20/- per day without any advertisement, having worked unsatisfactory for less than 3 years had no right of reinstatement and well as 50% back wages. This Court by a very well discussed judgment running in to 55 paragraphs did not accept any of the points raised by the counsel for the petitioners and dismissed the writ petition. Hence this review petition has been filed. 7. The counsel for the petitioners repeated the same arguments and placed reliance on the same judgments of Supreme Court, compilation of which has been attached to the written arguments and noticed in the judgment dated 13.09.2013. 8.
Hence this review petition has been filed. 7. The counsel for the petitioners repeated the same arguments and placed reliance on the same judgments of Supreme Court, compilation of which has been attached to the written arguments and noticed in the judgment dated 13.09.2013. 8. First question which requires to be noticed is the scope of review jurisdiction of this Court. There is no analogous provision like Article 137 of the Constitution specifically providing jurisdiction of review to the High Court. By virtue of Explanation to Section 141 CPC, provision of Section 114 read with Order 47 CPC is not applicable to writ proceedings. The Allahabad High Court Rules, 1952 also does not provide any power for review to the writ court. As such, in exercise of inherent jurisdiction, only errors apparent on the face of record, can be corrected by the writ court. 9. Supreme Court in Haridas Das v. Usharani Banik, (2006) 4 SCC 78 , held in order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it "may make such order thereon as it thinks fit". The parameters are prescribed in Order 47 CPC and for the purposes of this, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter 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 Rule 1 of Order 47 which states that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment.
Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection. 10. Supreme Court in Commissioner of Central Excise v. RDC,Concrete (India) Private Ltd. (2011) 12 SCC 166, held a mistake apparent on record must be an obvious and patent mistake and the mistake should not be such which can be established by a long-drawn process of reasoning. Again in Haryana State Industrial Development Corpn. Ltd. v. Mawasi, (2012) 7 SCC 200 , a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions, entertained about it, a clear case of error apparent on the face of the record would be made out. 11. Thus, scope of review is very limited. An erroneous view on interpretation of the law is no ground for review. The arguments that judgment of this Court is contrary to the judgments of the Supreme Court is not accepted in as much as by noting several judgments on the points, the Hon'ble Judge has preferred to rely upon one line of the judgments. Same arguments which were relied earlier are being again relied in the review application. 12. In view of the aforesaid discussion, the review petition has no merit and is dismissed. __________