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2017 DIGILAW 208 (ORI)

Hindalco Industries Ltd. v. State of Odisha

2017-02-28

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT S.N. PRASAD, J. - These review applications have been preferred for review of common judgment dated 24.10.2016 passed in W.P.(C) Nos. 19324, 19331, 19333,19330,19335,19327,19332,19328,19325,19329,19324 and 19326 of 2013. The writ petitions have been filed assailing the order dated 16.7.2013 passed by the Industrial Tribunal, Bhubaneswar in I.D. Case No. 35 of 2012 raising the question of maintainability of the dispute on account of jurisdiction. 2. This Court after taking into consideration the various judgments of the Hon’ble apex Court has dismissed the writ petitions holding therein that the reference made by the State of Odisha is well within its jurisdiction. The review petitioner has filed these review petitions along with applications to condone the delay under Section 5 of the Limitation Act since there is delay of 12 days in filing the instant review applications. 3. We after going through the averments made in the applications for condonation of delay and appreciating the reasons mentioned therein are of the considered view that delay is to be condoned and accordingly, we condone the delay in filing the review applications and heard the review applications on merit. 4. The contention raised by the learned Senior Counsel representing the petitioner is that the order under review is necessary to be reviewed on the following grounds. (i) The Management has never accepted that the opposite party No.3- the General Secretary, Hindalco Staff Association representing the workmen and its members, are workmen. (ii) The Management has raised an objection concerning the dispute regarding segregation of mine employees and plant employees, by making objection to an insurance scheme floated by the petitioner-Management. (iii) Certain aspects of the matter on merit has not been taken into consideration by this Court as also the judgments relied upon by the management reported in 1990(1) SCC 193 and AIR 2013 SC 3060 have not been taken into consideration. 5. Mr. S.K. Mishra, learned counsel representing the opposite party no.3, has vehemently opposed the prayer made in these review petitions and has submitted that there is no scope for review of the judgment passed by this Court. He has vehemently argued that so far as the first contention that the members of opposite party no. 5. Mr. S.K. Mishra, learned counsel representing the opposite party no.3, has vehemently opposed the prayer made in these review petitions and has submitted that there is no scope for review of the judgment passed by this Court. He has vehemently argued that so far as the first contention that the members of opposite party no. 3 are workmen or not, this Court left the matter open to be adjudicated by the Tribunal by giving opportunity to the parties to lead evidence in this regard by making a specific observation that it is a mixed question of law and fact and as such, it is to be adjudicated by allowing the parties to lead evidence in course of adjudication pending before the Tribunal and hence, there is no need of further clarification in the order passed by the writ Court. So far as the other ground taken by the review petitioner in the instant review applications, it has been submitted by the learned counsel that all these aspects of the matter is regarding the merit of the case and since this Court has not entered into the merit of the case, hence, ;the judgment needs no review. 6. We have heard the learned counsel for the parties and appreciated the pleadings made in the review petitions as well as the argument advanced on behalf of the parties. 7. It is not in dispute that the power to review is the creation of a statue. It must be conferred by law either specifically or by necessary implication. Review is not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration had resulted in miscarriage of justice, then certainly this can be said to be ground for review, but the mere fact that different views on the same subject are possible, cannot be said to be a ground to review the earlier judgment passed by a Court of Law. This Court has considered the judgment of Hon’ble Apex Court regarding width and scope of power of review as has been rendered in the case of Moran Mar Basselious Catholicos and anothers Vrs. Most Rev. Mar Poulose Athanasious and Others, reported in AIR 1954 SC 526 particularly at paragraph 32 which reads as under. “32. Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to order XLVII, Rule I of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified, grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason.” In the case of Shivdev Singh v. State of Punjab, reported in AIR 1963 SC 1909 , in a review petition filed under Order 47, Rule 1 C.P.C., the Supreme Court held that the power of review of its own order by the High Court inheres in every Court of plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it. In doing so, the Court was only upholding the principles of natural justice. This decision indicates that the Court’s power of review while exercising jurisdiction under Article 226 of the Constitution extends to correct all errors to prevent miscarriage of justice. The judgment rendered by Hon’ble Apex Court in the case of Sow. Chandra Kanta and Another Vrs. Sheik Habib reported in AIR 1975 SC 1500 wherein it has been held that “a review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept on earlier by judicial fallibility. Chandra Kanta and Another Vrs. Sheik Habib reported in AIR 1975 SC 1500 wherein it has been held that “a review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept on earlier by judicial fallibility. A mere repetition through different counsel of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient.” It is the settled proposition as has been held by Hon’ble Apex Court in the judgment discussed herein above the scope of review which can only be done in case of discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decree was passed, mistake or error apparent on the face of the record and for any other sufficient reason and in the light of this legal position the fact of these review petitions need to be appreciated. 8. We, on critical appreciation of the judgment under review, are of the considered view that so far as the contention that this Court has held in page 20 that “management is not disputing the fact that the workers are coming within the definition of ‘workman’ as per the definition provided under the Industrial Disputes Act” and if this order will not be reviewed, the management will greatly be prejudiced since the preliminary issue is regarding adjudication as to whether the members of the 2nd party association are workmen as defined under Section 2(s) of the I.D. Act? We on examination of the judgment under review have found that this Court has specifically observed that the workers working in the mines apart from the ministerial work is a mixed question of law and fact and is to be adjudicated by allowing the parties to lead evidence in this regard and as such, there is no question of any prejudice to be caused to the management regarding adjudication of the preliminary issue. However, we clarify this issue since the Tribunal has formulated the first issue to decide whether the status of the members of the 2nd party association are workman as defined under Section 2(s) of the I.D. Act?, the issue has to be decided by the Tribunal by allowing the parties to lead evidence in this regard as has been observed by this Court in the judgment under review. 9. So far as the other contention raised by the review petitioner in the review petitions is concerned, since this Court has not gone into the merit of the claim of the parties and adjudicated regarding the authority of the reference having been made by the appropriate Government keeping the matter open for the parties to lead evidence before the Industrial Tribunal, for adjudication of the reference and as such, the contention raised by the learned Sr. Counsel representing the management for review of the judgment, is not fit to be considered in the light of the scope of the review as has been discussed by us hereinabove. 10. We after taking into consideration the settled proposition of law for review, have found that there is no ground for review, namely (i) discovery of new and important matter or evidence, which after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and for any other sufficient reason, accordingly, we find no merit in the instant review applications. Accordingly, the review applications are dismissed. Applications dismissed.