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Judgment
Gurmeet Singh Sandhawalia, J.—The present writ petition has been filed by the petitioner-establishment challenging the order dated 05.06.2013 (Annexure P-6) passed by the Labour Court-I, Gurgaon whereby, an application filed by the workman-respondent No. 2 for setting aside the order dated 22.11.2012 (Annexure P-3) has been allowed, subject to payment of Rs. 1000 as costs and the case was being fixed for evidence of the workman. The sole argument of counsel for the petitioner is that the Labour Court had no power to review once it had decided the reference on merits against the workman and, therefore, the impugned order dated 5.6.2013 is without jurisdiction and deserves to be set aside.
However, this Court is not impressed with the said submission.
A perusal of the paper book would go on to show that the workman, in his claim petition dated 18.05.2010, had challenged his termination dated 02.05.2009, being violative of the provisions of the Industrial Disputes-Act, 1947 (in short ''the Act'').
In the written statement dated 07.09.2010 filed by the petitioner-establishment, a plea taken was that a proper inquiry had been held by an inquiry officer and after the charges had been proved, the termination order had been passed. Issues were framed on 19.04.2011 but it seems that the workman failed to lead evidence despite availing several opportunities. Accordingly, vide order dated 22.11.2012 (Annexure P-3) due to the absence of the workman, the evidence was closed. Since there was no evidence of the workman, the management also closed its evidence without leading any evidence and accordingly, the reference was rejected and answered against the workman vide order dated 22.11.2012. The workman filed an application dated 17.12.2012, for setting aside the final award and for permission to adduce evidence, which was objected to on various grounds by the management in its reply submitted on 2.4.2013. The said application has now been allowed by the Labour Court and the order reads thus:--
Heard on application for setting-aside the order dated 22.11.12 moved on behalf of workman. Original file seen. The workman has alleged that he could not appear on the date fixed because the marriage of his younger brother was on. 30.11.12 and lagan-tika ceremony was to be held on 22.11.12 and due to this reason, he could not reach in the court. Copy of marriage card has been also placed on the file. The present application has been moved by the workman after 14-15 days i.e. well within the period of limitation. So, Keeping in view the facts and circumstance mentioned in the application, the present application moved on behalf of the workman for setting aside order dated 22.11.12 is allowed and order dated 22.11.12 is ordered to be set-aside but subject to payment of 1000 as costs. No to come up on 08.08.13 for evidence of workman as well as payment of costs.
From a perusal of the "said order, it would be clear that a sufficient cause had been given by the workman as to why he could not put in appearance on 22.11.2012 and the said explanation has been accepted rightly by the Labour Court. The submission of the counsel was that it was an order reviewing on merits, cannot be accepted which would be clear from the earlier order dated 22.11.2012 in which it was recorded as under:--
No evidence of workman is present. Adjournment requested. Even the workman has also not come present. The perusal of the case file shows that'' issues were framed in this case long back on 19.04.2011 and despite availing several opportunities including, the workman failed to adduce any evidence. So, in such a satiation, no case for further adjournment is made out and as such, evidence of workman is hereby ordered to be closed.
Thus, it would be clear that the case was not decided on merits and was only decided on the ground that the evidence had not been produced and it was merely a default on the part of the workman, which has been rectified by imposing costs of Rs. 1,000.
The Apex Court in Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Others, , while examining the power of the Labour Court, has held that the Tribunal can always correct inadvertent error ex debito justitiae and a procedural review is permitted and such power lies in every Court or Tribunal. The relevant portion reads thus:--
We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellant,. the order setting aside the ex parte award, in fact, amounts to review. The decision in Patel Narshi Thakershi and Others Vs. Shri Pradyumansinghji Arjunsinghji, is distinguishable. It is an authority for the proposition that the power of review is not an inherent power, it must be conferred either specifically or by necessary implication. Sub-sections (1) and (3) of Section 11 of the Act themselves make a distinction'' between procedure and powers of the Tribunal under the Act. While the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the powers of civil court content upon it are clearly defined. The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in section 11. The answer to the question is, therefore, to be found in sub-section (1) of Section 11 and not in subsection (3) of Section 11. Furthermore, different considerations arise on review. The expression ''review'' is used in two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the Court in Narshi Thakershi''s case held that no review lies on merits unless a statue specifically provides for it Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal.
The said view was thereafter followed by a three Judge Bench of the Apex Court in Kapra Mazdoor Ekta Union Vs. Management of Birla Cotton Spinning and Weaving Mills Ltd. and Another, . In the said case, an award had been passed in favour of the union. An application was filed before the Tribunal that the award be recalled as the terms of settlement had been determined in the award without giving opportunity to the union. The Tribunal allowed the application against which the management filed a writ petition before the High Court, The said writ petition was allowed and the order of the Tribunal was set aside recalling the award. The union challenged the same before the Apex Court. A legal question which arose was whether the Tribunal has jurisdiction to recall its earlier order which amounts to a review". The Apex Court held that the Tribunal has the power for review or recall whereby the order suffers from any illegality which vitiates the proceedings, and if a party was not heard for no fault or the matter was not decided on the date fixed for hearing, the matter should be reheard. It was only where the matter had been decided on merits, review was not permissible. Accordingly, the appeal was dismissed and the order of the High Court was upheld. The relevant portion reads thus:--
The core question which arises for consideration is whether the Industrial Tribunal was justified in recalling the earlier Award made on June 12, 1987 and in framing an additional issue for adjudication by the Tribunal. According to the appellant the recall of the order was fully justified in the facts of the case, while the respondents contend to the contrary. Two issues arise for our consideration while considering the legality and propriety of the Tribunal in recalling its earlier Award. Firstly--whether the Tribunal had jurisdiction to recall its earlier order which amounted virtually to a review of its earlier order; and secondly--whether the Tribunal had no jurisdiction to entertain the application for recall as it had become functus officio. The High Court answered the first question in favour of the respondent-Management and the second in favour of the appellant.
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Applying these principles it is apparent that where a Court or quasi-judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the Court or the quasi judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category, in such a review, the Court or quasi-judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the Court or quasi-judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from ah error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the Court or the quasi-judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be re-heard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. v. Central Government Industrial Tribunal and others (supra), it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be reheard and decided again.
The facts of the instant case are quite different. The recall of the Award of the Tribunal was sought not on the ground that in passing the Award the Tribunal had committed any procedural illegality or mistake of the nature which vitiated the proceeding itself and consequently the Award, but on the ground that some mattes which ought to have been considered by the Tribunal were not duly considered. Apparently the recall or review sought was not a procedural review, but a review on merits. Such a review was not permissible in the absence of a provision in the Act conferring the power of review on the Tribunal either expressly or by necessary implication.
Thus, from the perusal of the above said observations, it would be clear that the Labour Court has power to recall such like orders whereby, the evidence has been closed and reference has been answered due to the non-appearance of the work-man and the workman has been able to show sufficient cause for non-appearance. The establishment should not shy away from the decision on merits as it is settled that rules of procedure are the hand maid of justice. Accordingly, impugned order does not suffer from any illegality or irregularity which may warrant interference under Article 226 of the Constitution of India and the present petition is dismissed in limine.