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Hindalco Industries Ltd, P.O. Renukoot,District Sonebhadra v. Presiding Officer, Industrial Tribunal-I,Allahabad & ors. - WRIT - A No. 32886 of 1997  RD-AH 77 (4 April 2003)
COURT NO. 24
CIVIL MISC. WRIT PETITION NO 32886 Of 1997
Hindalco Industries Ltd, P.O. Renukoot,
District Sonebhadra ----- Petitioner
Presiding Officer, Industrial Tribunal-I,
Allahabad & ors. ----- Respondents.
Hon'ble Dr. B.S.Chauhan, J.
This writ petition has been filed against the order dated 3.2.1997 (Annex. ''10'), by which the respondent no. 1 Tribunal rejected the application of the petitioner under Section 6 E (2) (b) of the U.P. Industrial Disputes Act, 1947 (hereinafter called Act 1947) and order dated 16.9.1997 (Annex. ''12'), by which the review application has been rejected.
Facts and circumstances giving rise to this case are that the Workers Union of Hindalco Industries Ltd. has raised the industrial dispute regarding entitlement of certain benefits to its members, and the appropriate Government made the reference to the Tribunal. During the pendency of the said matter before the Tribunal, a charge sheet was issued to the respondent workman on 9.7.1992 for misbehaving and causing injuries to his superior officer. Workman filed the reply to the charge sheet. Not being satisfied with the reply, the petitioner proceeded with the enquiry and after completing the same, Enquiry Officer submitted the report holding the workman guilty. The copy of the enquiry report was made available to the workman and he filed objection. However, the competent authority passed the order of dismissal from service of the workman on 1.3.1993. As the matter was pending before the Tribunal, in view of the provisions of Section 6 E (2) (b) of the Act 1947 an application for approval was moved before it. Vide order dated 4.4.1996, the Tribunal held that the enquiry against the workman was held in accordance with law and it was fair and proper. But, vide order dated 3rd February, 1997 (Annex. ''10') the application for approval was rejected on the ground that one month's wages was not paid to the workman as required under the rule. Being aggrieved and dissatisfied, a review application was filed on 14.2.1997, which has been rejected vide order dated 16.9.1997 (Annex. ''12'). Hence this petition.
Shri Sanjai Misra, learned counsel for the petitioner has submitted that if the Tribunal came to the conclusion that enquiry has fairly been conducted and there was ample evidence before it that one month wages has been paid/tendered simultaneously along with the order of termination by money order, the order dated 3.2.1997 (Annex. ''10') was unwarranted and the order dated 6.9.1997 also suffers from illegality as the review application ought to have been allowed.
On the contrary, Shri Rahul Jain, learned counsel appearing for respondent no. 3 workman has submitted that whether the one month wages had been paid simultaneously is a question of fact and this Court in a limited jurisdiction under Article 227 of the Constitution cannot reappreciate the evidence. The order dated 6.9.1997 being without jurisdiction cannot be read as the application for review in absence of any statutory provision was not maintainable, and once the said application has been rejected, this Court should not look into that issue at all. Even if the application is treated under Section 6 (6) of the Act 1947, the same is liable to be rejected.
I have considered the rival submissions made by the learned counsel for the parties and perused the record.
When the application was filed under Section 6 E (2) (b) of the Act 1947, the Tribunal proceeded to determine a preliminary issue as to whether the enquiry against the workman had been held fairly and in accordance with law, and recorded a finding that it had been a fair enquiry and the statutory provisions as well as the principles of natural justice had been complied with.
Only question remained before the Tribunal was as to whether one month wages had been paid simultaneously along with the order of termination?. To prove this fact, the petitioner management filed the copies of the acknowledgement of money order form before the Tribunal and the same had been filed before this Court as Annex. ''7'. The workman disputed the issue seriously that the said amount was not in respect of one month wages, rather it was a salary for the earlier month. As to whether it was the wages of one month or the salary of last month was a factual issue. Tribunal recorded the finding that the date on the said money order form/acknowledgement etc. by the postal department were not clear, and therefore, it was not possible for the Tribunal to decide the issue as on what date the money order had been sent and when it had been received by the workman and for what purpose the money order had been sent. The witness examined by the management in this regard could not make out any case in support of the management. The Tribunal placed reliance upon the judgment in Sindhu Diwakar Dabholkar Vs. B.N. Dongre & ors, 1988 F.L.R. (56) 244, in which, it has been held that the requirement of law was to pay the wages simultaneously and it was mandatory requirement. The representative of the employer did not utter a single word on the issue as to whether the payment had been made/tendered simultaneously. The relevant part of the order reads as under:-
"The learned representative for the workman has vehemently argued that the payment of one month wages to the workman concerned is a condition precedent to the dismissal of the services of the workman by the employer, that the aforesaid proviso is mandatory and that the employer has not complied with the aforesaid condition and, therefore, the application is not maintainable.- - - - -The learned representative for the employer has nothing to say against the aforesaid argument of the learned representative for the workman."
In this facts situation where the petitioner management had to prove its case and failed even to make any submission, I fail to understand how any fault can be found with the order of the Tribunal. It is not the case that the management was not aware what was the controversy involved. Application had been filed for seeking approval of the order of punishment because of the pendency of the case before the Tribunal the management miserably failed to prove that one month wages had been paid or tendered simultaneously along with the order of termination. Copy of the money order form/acknowledgement could not reveal anything because the seals showing the dates etc. were not legible, nor it was clear as for what the money order had been sent. Once there was a serious dispute regarding the said payment, the management ought to have led proper evidence to satisfy the Court that the compliance of law had been made.
It is settled proposition of law that a party has to plead the case and produce/ adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. (Vide Bharat Singh Vs. State of Haryana, AIR 1988 SC 2181; M/s. Larsen & Toubro Ltd. Vs. State of Gujarat & ors., AIR 1998 SC 1608; National Building Construction Corporation Vs. S. Raghunathan & ors., AIR 1998 SC 2779; Ram Narain Arora Vs. Asha Rani & ors., (1999) 1 SCC 141; Chitra Kumari Vs. Union of India & ors., AIR 2001 SC 1237; and State of U.P. & ors. Vs. Chandra Prakash Pandey, AIR 2001 SC 1298).
In Atul Castings Ltd. Vs. Bawa Gurvachan Singh, AIR 2001 SC 1684, the Hon'ble Apex Court observed as under:-
"The findings in the absence of necessary pleadings and supporting evidence cannot be sustained in law."
Similar view has been reiterated in Vithal N. Shetti & Anr. Vs. Prakash N. Rudrakar & ors., (2003) 1 SCC 18.
In a case like instant, the Court can review only the "decision making procedure" and not the "decision" of the authority. The Court, not being a Court of Appeal, is not competent to substitute its own view on factual aspects of the case. The Court can review to correct errors of law or fundamental procedural requirements which may lead to manifest injustice and can interfere with the impugned order in "exceptional circumstances". (Vide Union of India Vs. Parma Nanda, AIR 1989 SC 1185; State Bank of India & ors. Vs. Samarendra Kishore Endow, (1994) 2 SCC 537; State of Punjab Vs. Surjit Singh, (1996) 8 SCC 350; State of U.P. Vs. Ashok Kumar Singh, & Anr., AIR 1996 SC 736; State of U.P. Vs. Nand Kishore Shukla & Anr., AIR 1996 SC 1561; Transport Commissioner, Madras Vs. Thiru ARK Moorthy, (1995) 1 SCC 332; Rae Bareli Kshetriya Gramin Bank Vs. Bhola Nath Singh & ors., AIR 1997 SC 1908; State of Punjab Vs. Bakhshish Singh, AIR 1997 SC 2696; Yoginath D. Bagde Vs. State of Maharashtra & Anr., (1999) 7 SCC 739; Union of India Vs. Lt. Gen. R.S. Kadyan & Anr., (2000) 6 SCC 698; Food Corporation of India Vs. A. Prahalada Rao & Anr., (2001) 1 SCC165; Kumaon Mandal Vikas Nigam Ltd. Vs. Girja Shankar Pant & ors., (2001) 1 SCC 182; N.R. Nair Vs. Union of India & ors., (2001) 6 SCC 84; Union of India & ors. Vs. Ashotosh Kumar Srivastava, (2002) 1 SCC 188; and Ouseph Mathai & ors. Vs. M. Abdul Khadir, (2002) 1 SCC 319).
In State of Tamil Nadu Vs. S. Subramaniam, AIR 1996 SC 1232, the Apex Court held that the only consideration the Court/Tribunal has, in its judicial review, is to consider whether the conclusion is based on the evidence on record and support the finding, or whether the conclusion is based on no evidence.
In the General Court Martial & ors. Vs. Col. Aniltej Singh Dhaliwal, AIR 1998 SC 983, the Hon'ble Supreme Court has held that the High Court, in its limited power of exercise of judicial review, may interfere by appreciating the evidence only if there is an omission on the part of the Authority to consider the relevant evidence. Similarly, in Rajender Kumar Kindra Vs. Delhi Administration, (1984) 4 SCC 635, the Court observed as under:-
"It is equally well settled that where a quasi-judicial Tribunal or arbitrator records findings based on no legal evidence and the findings are either his ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated... Viewed from either angle, the conclusions of the Enquiry Officer.... are wholly perverse and hence unsustainable. The High Court, in our opinion, was clearly in error in declining to examine the contention that the findings were perverse on the short, specious and wholly untenable ground that the matter depends on appraisal of evidence. Between appraisal of evidence and total lack of evidence there is an appreciable difference which could never be lost sight of and the High Court ought not to have short-circuited the writ petition."
In view of the above as there is a very limited scope of judicial review and there is nothing on record on the basis of which it can be held that the findings of fact recorded by the Tribunal are perverse being based on no evidence or contrary to the evidence on record, there is no occasion for this Court to reappreciate the evidence and interfere with the findings of fact. Thus, I find no reason to interfere with the order dated 3.2.1997 as in a limited jurisdiction under Article 227 of the Constitution it is not permissible for the Court to reappreciate the evidence. Therefore, submissions raised by Shri Sanjai Misra on behalf of the petitioner are preposterous and are liable to be rejected.
So far as the order dated 16.9.1997 (Annex. ''12') is concerned the Tribunal has rejected the application of review on merit observing as under:-
"Heard Sri V.R.Agarwal, learned representative for the employer who submitted that Ex. E-14 and E-15 are the postal receipt of money order. He brought to the notice Ex. E-14 and E-15. I have carefully examined Ex. E-14 and E-15 which are money order payment receipt. The careful scrutiny of these two receipts do not show any date of actual payment to the workman. The postal seal on these two receipts are blurred and nothing could be known about the date of actual payment of money order to the workman. Photostat copies of the money order dispatch receipt are on the record which are not admitted by the endorsement of the workman."
Therefore, the aforesaid finding recorded by the Tribunal clearly shows that the petitioner management failed to prove the factum of payment of one month salary along with the order of termination.
More so, Shri Jain has raised the serious dispute that the Court cannot examine the order dated 3.2.1997 because it is a nullity for want of jurisdiction as review could not have been entertained in absence of any statutory provision provided for review under Act 1947. Shri Sanjai Misra, the learned counsel appearing on behalf of the petitioner has submitted that this application had been filed under Section 6(6) of the Act, and therefore, it was maintainable. Even if it is assumed that the application was filed under Section 6 (6) of the Act, I am doubtful regarding its maintainability.
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.
Even if the application had been filed under S. 6 (6) of the Act 1947 it is doubtful that in this case such an application could be entertained. The provision reads as under:-
"A Tribunal, Tribunal or Arbitrator may either of its own motion or on the application of any party to the dispute, correct any clerical or arithmetical mistakes in the award or error arising therein from any accidental slip or omission----."
Language used in the aforesaid section is verbatim to Section 152 of the Code of Civil Procedure (hereinafter called the C.P.C.) and in exercise of that power correction is permissible only when it is necessary to give effect to the judgment, degree or order so that the manifest rights of the parties intended to be effectuated by the earlier decision of the Court may not be defeated. When degree is not clear as to what was decided and what the Court intended, the Court may amend it so as to carry out its meaning. (Vide Rai Jatindra Nath Chowdhury Vs. Uday Kumar Das & ors., AIR 1931 PC 104 and Seth Manakchand Vs. Chaube Manoharlal & Anr., AIR 1944 PC 46). This provision cannot be resorted to in order to annul the degree or where there is no clerical or arithmetical mistake or error arising from accidental slip or omission or the power can be used to re-determination the rights of parties already adjudicated upon. In Dwaraka Das Vs. State of Madhya Pradesh, 1999 (3) SCC 500 the Hon'ble Apex Court held that powers cannot be used to grant some thing which had not been granted earlier as it would not amount to accidental omission or mistake. In I. L. Janakirama Iyer & ors. Vs. P.M. Nilakanta Iyer & ors., AIR 1962 SC 633 the Apex Court held that as in the degree the mesne profit had been typed as a net profit and it was merely a typographical error in exercise of power under Section 152 C.P.C. the word "net" must be substituted by "mesne". The powers of the Court are limited only to correct this kind of typographical mistakes. In K. Rajamouli Vs. A.V.K.N. Swamy, 2001 (5) SCC 37 the Hon'ble Supreme Court held that if while deciding a case interest pendente lite had not been granted it cannot be granted while allowing the application under Section 152 C.P.C. In M/S Plasto Pack Mumbai Vs. Ratnakar Bank Limited 2001 AIR SCW 3426 a similar view has been reiterated observing that power to amend a degree cannot be exercised so as to add to or substract therefrom any relief granted earlier.
In Jayalakshmi Coelho Vs. Oswald Joseph Coelho AIR 2001 SC 1084 the Hon'ble Supreme Court placed reliance upon its earlier judgment in State of Bihar Vs. Neelmani Sahu 1996 (11) SCC 528 and Bai Shakriben Vs. Special Land Acquisition Officer, 1996 (4) SCC 533 and held that the inherent powers as exemplified in S. 152 C.P.C. generally be available to all Courts and authorities irrespective of the fact whether the provisions contained under S. 152 C.P.C. may or may not strictly apply to any particular proceeding.
But the power to rectification of clerical and arithmetical errors or accidental slips does not empower the Court to have a second thought over the matter and to find a better order or degree could or should be passed. There cannot be reconsideration of merits of the matter to come to a conclusion that it would have been better and in the fitness of things to have passed an order as sought to be passed on rectification. On a second thought the Court may find that it may have committed a mistake in passing an order in certain terms but every such mistake cannot be rectified in exercise of the Court's inherent powers as contained under S. 152 C.P.C. It is to be confined to something initially intended to left out or added against such intendment.
Similar view has been reiterated in Lakshmi Ram Bhuyan Vs. Hari Prasad Bhuyan & ors. 2002 AIR SCW 4843 issue as the Apex Court held that such powers can be used limited to the extent that a clerical or arithmetical mistake occurred in the judgment, degree or order or error arising therein from any accidental slip or omission can be corrected subsequently by the Court either on its own motion or on the application of any of the parties. While deciding the said case, the Court placed reliance upon the judgment in re Swire; Mellor Vs. Swire (1885) 30 Ch.D 239 wherein it had been held that the said provisions enabled the Court to vary its judgment so as to give effect to its meaning and intention, when the order was passed.
Thus, in view of the above it cannot be held that under the garb of application under Section 6 (6) of the Act 1947 the Tribunal is permitted to reopen the case on merit and examine the case again and adjudicate upon the merit of the issue decided already.
Be that as it may, even if it is assumed that the application was maintainable, as the Tribunal has held that petitioner management failed to prove its case of payment of one month wages, no interference is required with the findings of fact as it cannot be held to be perverse being based on no evidence or contrary to the evidence on record or suffering from any apparent error on the face of the record.
Shri Sanjai Misra, learned counsel for the petitioner management has very heavily relied upon the judgment of the Hon'ble Apex Court in the Straw Board Manufacturing Co. Ltd., Saharanpur Vs. Govind, AIR 1962 SC 1500, wherein dealing with the same provision the Apex Court has held as under:-
"What we mean is that the employer's conduct should show that the three things contemplated under the proviso, namely, (i) dismissal or discharge (ii) payment of the wages, and (iii) making of the application, are parts of the same transaction. If that is done, there will be no occasion to fear that the employee's rights under Section 33 A would be affected. The question whether the application was made as part of the same transaction or at the same time when the action was taken would be a question of fact and will depend upon the circumstances of each case."
I fail to understand how the ratio of the aforesaid judgment comes to rescue of the petitioner. As per the said judgment petitioner was to establish before the Tribunal that the payment of wages had been made simultaneously with the order of dismissal, which he miserably failed to prove and being a question of fact cannot be reappreciated by this Court as held by the Hon'ble Apex Court in the said case.
Similarly, reliance has been placed upon the judgment in The Management of Delhi Transport Undertaking Vs. Industrial Tribunal, AIR 1964 SC 1503, wherein interpreting the same provision the Court held as under:-
"The proviso does not mean that wages for one month should have been actually paid because in many cases the employer can only tender the amount before the dismissal but in view of the aforesaid the employee to receive the payment before dismissal becomes effective."
In view of the aforesaid judgment, at the most, it can be submitted that one month wages must be tendered at the time of dismissal and it is not necessary to pay. In the instant case, petitioner could not establish that fact by leading any evidence as to whether the said wages had been tendered. The facts of the instant case being distinguishable, the aforesaid judgment has no application.
Thus in view of the above, as the Tribunal has recorded a finding of fact that the one month wages has neither been tendered nor paid as no evidence could be led by the management in this regard and that finding of fact cannot be reopened in a limited jurisdiction of judicial review. There is no evidence on record to show that the aforesaid finding is perverse and thus requires the issue to reopen, I am not inclined to interfere with the matter.
Petition is devoid of merit and is accordingly dismissed.
There shall be no order as to costs.
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