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SURESH CHANDRA SHARMA versus PRESIDING OFFICER, LABOUR COURT IV, KANPUR & ORS.

High Court of Judicature at Allahabad

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Suresh Chandra Sharma v. Presiding Officer, Labour Court IV, Kanpur & ors. - WRIT - A No. 40918 of 1998 [2003] RD-AH 315 (10 September 2003)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

COURT NO. 24

(IN CHAMBERS)

CIVIL MISC. WRIT PETITION NO 40918 Of 1998

Suresh Chandra Sharma   -----        Petitioner

Versus

Presiding Officer, Labour Court IV,

Kanpur & ors. . -----   Respondents.

--------------

Hon'ble Dr. B.S.Chauhan, J.

This writ petition has been filed against the impugned order dated 9.10.1998, passed by the Labour Court allowing the application of the respondent and setting aside the award dated 8.7.1997 reopening the Adjudication Case No. 49 of 1992.

Facts and circumstances of the case giving rise to this case are that petitioner who had been working with respondent no. 2, had been removed from service vide order dated 1.7.1991. Being aggrieved and dissatisfied petitioner raised an industrial dispute, and the appropriate Government vide order dated 21.4.1992 in exercise of its power under Section 4 K of the U.P.Industrial Disputes Act, 1947 (hereinafter, the Act) made the reference to the Labour Court as to whether the termination was in accordance with law, and if not, to what relief he was entitled to?. In pursuance of the said reference workman filed the claim petition and the contesting respondents entered into appearance through their departmental representatives. However after appearing on few dates, the departmental representatives did not attend the proceedings, and Labour Court proceeded exparte and made the Award dated 8.7.1997, set aside the order of termination and issued the direction of reinstatement with notional security, but, the workman was deprived of the back wages. When the petitioner workman wanted the execution of the said Award dated 8.7.1997 on 2nd September, 1998, the contesting respondents filed an application before the Labour Court for setting aside the Award. The said application has been allowed. The matter has been reopened. Hence this petition.

In Patel Chunibhai Dajibha Vs. Narayanrao  Khanderao Jambekar, AIR 1965 SC 1457, the Hon'ble  Supreme Court had held that in absence of  any power of review,  the Tribunal could not  have  subsequently reconsidered  its previous   decision  and   the  subsequent  order re-opening the  matter was illegal,  ultra-vires and without jurisdiction.

In Harbhajan Singh Vs. Karam Singh, AIR 1966 SC 641, the Hon'ble Apex Court has held that in absence of any provision in the Act granting express power  of  review,  it is  manifest  that review could  not be made and the order in review was ultra-vires, illegal and without jurisdiction and the High  Court has rightly quashed it by the grant of   writ   under  Article   226   of   the Constitution.

While deciding the said case, the Hon'ble Supreme Court placed reliance on a large  number of judgments,  particularly  in Drew Vs. Mills, 1891 (1) QB 450; Hession Vs,. Johns, 1914  (2) KB 421; in Re: St. Nazaire Company, (1879) 12 Ch.D..  88; and Baijnath Ram Goyanka Vs.  Nand Kumar Singh, 14 Indian Appeal 54 (PC), wherein it had categorically been held that the power of setting-aside an order, which has been made after hearing the arguments, does not lie unless it is given by the Statute. The Court, under the Statute, cannot review an order deliberately made after argument and entertain a fresh argument upon it with a view to ultimately confirming or reversing it.  The Courts may have limited power only to make a necessary correction if the order, as drawn up, did not express the intention of the Court.  A party is entitled   to assail   the judgment only by the mode as indicated in the Statute and in absence of express provision of review, it cannot be entertained for the reason that review is practically the hearing of an appeal by the same Officer who decided the case.

In Patel Narshi Thakershi & ors. Vs. Pradyumansinghji  Arjunsinghji, AIR 1970 SC 1273, the Hon'ble  Apex  Court held that the  power  to review is  not  an  inherent power.  It must be conferred by law either   specifically or by necessary implication and in absence of any provision in the Act, review of an earlier order is impermissible.

In  Maj.  Chandra Bhan Singh Vs., Latafat Ullah Khan  &  ors., AIR 1978 SC 1814,  the  Apex Court followed the earlier referred two judgments in Chunnibhai  and  Harbhan   Singh  (supra)  and observed that it is well settled that review is a  creature  of Statute and cannot be entertained in absence of a provision therefor.

In Dr. Smt. Kuntesh Gupta Vs. Management of Hindu Kanya   Mahavidhyalaya, Sitapur,  AIR  1987 SC 2186, the Hon'ble  Supreme Court held as under:-

"It   is now   established   that   a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on  it  by  the statute   under  which  it  derives   its jurisdiction......  In the circumstances, it must be held that Vice Chancellor acted wholly without jurisdiction..... The said order of the  Vice  Chancellor dated  March  7,  1987   was  a  nullity. (Emphasis added)."

Similar  view has been reiterated by  the Hon'ble Supreme  Court in State of Orissa & ors. Vs. Commissioner of Land Records and Settlement, (1998) 7 SCC 162.

In Krishna Ashram Educational Trust Vs. District Judge, AIR 1995 All.  415, after placing reliance upon a large number of judgments of the Hon'ble Supreme Court, this Court held that in absence of a provision for review, the Authority becomes functus officio after deciding the case and it has no competence to entertain review application and change the order                passed by it earlier. Nor the order/Award be review under the garb of clarification/rectification/correction.

Therefore in view of the aforesaid settled legal proposition it can be summarised that in absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification/modification/correction is not permissible.

Learned counsel for the petitioner has submitted that once the Labour Court has passed the Award it becomes functus officio and does not have the power to entertain any application. Such an argument is admissible only in case where the order passed by statutory authority is to be reviewed and there is no statutory provision prescribing for review as held by the Hon'ble Supreme Court in Dr. Smt Kuntesh Gupta vs. Management of Hindu Kanya Mahavidhyalaya, Sitapur, AIR 1987 sc 2186, the Hon'ble Supreme Court held as under:-

"It is now established that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction... In the circumstances, it must be held that Vice Chancellor acted wholly without jurisdiction . . . . The said order of the Vice Chancellor dated March 7, 1987 was a nullity. (Emphasis added)."

Similar view has been reiterated by the Hon'ble Supreme Court in State of Orissa & ors. Vs. Commissioner of Land Records and Settlement, (1998) 7 SCC 162.

In Krishna Ashram Educational Trust vs. District Judge, AIR 1995 All. 415, after placing reliance upon a large number of judgments of the Hon'ble Supreme Court, the Allahabad High Court held that in absence of a provision for review, the Authority becomes functus officio after deciding the case and it has no competence to entertain review application and change the order passed by it earlier.

However, the issue involved in this case has been dealt with by the Hon'ble Supreme Court in Grindlay's Bank case, AIR 1981 SC 606, wherein the distinction between a review and recalling an exparte order has been explained and that was a case wherein the Hon'ble Supreme Court was dealing with a matter of recalling the exparte Award by the Labour Court itself. The Hon'ble Apex Court held that even in absence of any statutory provision if the Labour Court is satisfied that exparte order has to be recalled, there is no bar in law for recalling the exparte Award. Similar view has been reiterated in Satnam Singh Verma Vs. Union of India, AIR 1985 SC 294.

It is settled legal proposition that whether for non-appearance of a party there is a sufficient cause or not is a question of fact, and therefore, the writ/revisional court should not interfere against such finding.

In Arjun Singh Vs. Mohindra Kumar, AIR 1964 SC 993 the Court explained the difference between the good cause and the sufficient cause and observed that every sufficient cause must be a good cause and must afford an explanation for non appearance, nor conversely of a sufficient cause which is not a good one.

In Manindra Land and Building Corporation Ltd. Vs. Bhootnath Banerjee & ors, AIR 1964 SC 1336 the Hon'ble Apex Court held that the applicant must satisfy the Court that it was prevented by any sufficient cause from prosecuting its case, and unless the satisfactory explanation is furnished, the Court should not allow the application.

In Brij Indar Singh  Vs. Lala Kanshi Ram & ors., AIR 1917 P.C. 156 it has been observed that true guide for a Court is to exercise the distinction as to whether the applicant acted with reasonable diligence in prosecuting its case.

In Lala Matadin Vs. A. Narayanan, AIR 1970 SC 1953 the Hon'ble Apex Court held that in order to determine as to whether there was a sufficient cause for the non-appearance, which required to be examined either the mistake was bona fide or was merely a device to cover an ulterior purpose.

In State of Bihar & ors. Vs. Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306 the Court held that while considering as to whether there was a sufficient cause, the Court must bear in mind the object of doing substantial justice to all the parties concerned and the technicalities of law should not prevent the Court from doing substantial justice and doing away the illegality perpetuated on the basis of the impugned judgment.

In Madanlal Vs. Shyamlal, (2002) 1 SCC 535 and Ramnath Sao alias Ram Nath Sao & ors. Vs. Gobardhan Sao & ors., (2002) 3 SCC 195, the Hon'ble Apex Court has observed that the expression "sufficient cause" should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case, no strait-jacket formula is possible.

The case requires to be examined in the light of the aforesaid settled legal propositions. While making Award the learned Labour Court has observed that inspite of several opportunities the reply to claim petition had not been filed. In spite of notice, no one appeared on the date fixed, i.e., 3.2.1997. Further, none appeared on 21.4.1997, 1.5.1997, 26.5.1997 and 30.6.1997. There was a direction to produce the muster rolls. The same were not produced nor any affidavit had been filed explaining not possibility in respect of production of the muster rolls. In the application for recalling the Award it has been mentioned by the respondent nos. 2 and 3 that they had appointed Shri Noor Hasan and subsequently Shri Prabhakar Arya, their officials, to represent the case as the departmental nominee/representative, but, they did not intimate or furnish any information to the employers, and therefore, the exparte Award was made. The exparte Award has been recalled vide order dated 9.10.1998 making observation that Noor Hasan the authorized departmental nominee stopped attending the Court. Shri Prakash Rai another authorized representative, appeared only on one date and was not permitted to participate in the proceedings for want of authorization. As the party cannot suffer for fault of its lawyers, the application deserved to be allowed.

It is settled legal proposition that for the fault of the counsel, client should not suffer. But, in a case where a lawyer does not appear or pleads any instruction, the Court should give a notice to the party keither to appear in person or to make an alternative arrangement. (Vide Rafiq & anr. Vs. Munshilal & anr., AIR 1981 SC 1400; Goswami Krishna Murarilal Sharma Vs. Dhan Prakash & ors, (1981) 4 SCC 574; Smt. Lachi Tewari & ors, AIR 1984 SC 41; Tahil Ram Issardas Sadaranganj & ors Vs. Ramchand Issardas Sadaranganj & anor., 1992AIR SCW 3445; Bani Singh & ors Vs. State of U.P., AIR 1996 SC 2439  Sushila Narhari Vs. Nandkumar & ors., (1996) 5 SCC 529; and G. Raj Mallaiah & anr. Vs. State of Andhra Pradesh, AIR 1998 SC 2315).

There is a distinction in a lawyer and authorized representative of the department that principle would certainly not apply in a case where the authorized departmental representative does not represent the case properly and the department does not come to the writ Court explaining as to what action has been taken against such a erring officer, who had been responsible for making the exparte Award. The provisions of the Industrial Disputes Act permits the appearance of lawyers only in exceptional circumstances. Almost all the cases are being represented by the authorized departmental representatives. They cannot be put at the par with that of the legal practitioners, who are engaged in a particular case and are certainly not the employees of the department. The application for recalling the Award could not be held bona fide as the department itself had been thoroughly negligent in defending the case and further in not taking any action against such erring officer.

Thus in view of the above, I am of the considered opinion that though in spite of the fact that the Award has been published, the Labour Court has a power to recall the exparte Award, but there must be a "sufficient cause" shown for that. The order dated 9.10.1998 is liable to be set aside.

Petition succeeds and is allowed. Impugned order dated 9.10.1998 is hereby set aside. The respondents must ensure the compliance of the Award dated 8.7.1997 within a period of two months from today.

In the facts and circumstances of the case, there shall be no order as to costs.

10.4.2003

AKSI


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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