Sankar Das vs M/s. Paradeep Phosphates Ltd. and Another

B.N. Mahapatra, J.—This review petition has been filed seeking review of the Order Dated 12.05.2011 passed in W.A. No. 259 of 2011 arising out of W.P.(C) No. 22852 of 2010. Writ Appeal No. 259 of 2011 was preferred by Opp. Party-Management challenging the Judgment dated 4.3.2011 passed by the Learned Single Judge in W.P.(C) No. 22852 of 2010 quashing the Order Dated 18.9.2010 of the Labour Court, Bhubaneswar in I.D. Misc. Case No. 58 of 2008 & directing the Opp. Party No. 1-Management to pay the entire amount of claim u/s 33C(2) of the I.D. Act, 1948. The said Writ Appeal No. 259 of 2011 filed by the Opp. Party No. 1-Management was dismissed on 12.5.2011 with the following observations:

For the reason stated supra, we are of the view that applying the ratio in Jaipur Zilla Sahakari Bhumi Vikas bank Ltd.(supra), a workman against whom the order of dismissal was passed & proceeding u/s 33(2)(b) of the Act was undisputedly rejected & the same became final, the same is entitled for payment of salary & other consequential monetary benefits. Therefore, the Respondent-workman is entitled to salary for the period from 21.8.2006 to 18.12.2009, the date of first order of dismissal till the date of second order of dismissal, even though the second order of dismissal, still is required to be approved by the Tribunal in the subsequent proceeding stated on the application of the Appellant. Therefore, grant of wages & other consequential benefits by the leaned Single Judge to the Respondent-workman is legal & valid. The workman who will be entitled for the wages & other consequential benefits in the form of money as per the provision of law & the law laid down by the Apex Court in the case referred to in Jaipur Zilla Sahakari Bhumi Vikas Bank Ltd. (supra) laid down in case the non-grant of approval of order of dismissal, the workman is entitled for salary & consequential benefits from the date of dismissal till the date of disapproval. Therefore, the legal contentions urged on behalf of the Appellant that the workman has no existing right either in the settlement or pre-adjudication of the dispute are wholly untenable in law. For the foregoing reasons, the appeal is liable to be dismissed. Accordingly, the appeal is dismissed. Since we have affirmed the order of the Learned Single Judge, salary for the period & other consequential benefits in the form of kind as claimed by the Respondent, as granted by the Learned Single Judge, shall be paid within a period of six weeks by the employer. Otherwise that amount shall carry interest at 12% from the date of first order of dismissal till the date of payment of monetary benefits as directed in the impugned order.

Challenging the Judgment of this Court dated 12.5.2011 passed in the above writ appeal, the Appellant-Management preferred SLP (C) No. 16367 of 2011 before the Hon''ble Supreme Court. The said SLP was dismissed on 11.7.2011 having no ground for interference by the Supreme Court.

Learned Counsel appearing for the review Petitioner submitted that at the time of submission of the application u/s 33-C(2) of the I.D. Act before the Learned Labour Court a calculation sheet was appended to Annexure in Form - T -3 wherein the wages & other dues were mentioned as per the old scale of pay that was received by the Petitioner-workman at the time of dismissal. It was submitted that as per the decision of the Opp. Party-Management though the salary of the workman was revised, the Petitioner/workman was not aware of the same during pendency of the Writ Petition before the Learned Single Judge & the writ appeal which was disposed of on 12.5.2011. A Circular was issued on 30.04.2009 for revision of wages of unionised employees of Paradeep Phosphate Ltd. In the said Circular, it has been specifically mentioned that consequent upon signing of the memorandum of settlement between Paradeep Phosphates Employees Union (PPEU) & PPSA on 24.03.2008, the Management has revised the wages & prerequisite/allowances of non-executive employees from 1.1.2007 to 31.12.2011. Since the said Circular was not within the knowledge of the Petitioner-workman no prayer could be made inadvertently by him praying for direction to opposite No. 1 -Management to pay his dues as per revised pay structure. The said mistake was neither deliberate nor willful, rather bona fide. Learned Counsel for the Petitioner further submitted that the Petitioner- workman will suffer & he will be prejudiced if the review petition is not allowed. Therefore, Learned Counsel prayed for review of the Judgment dated 12.5.2011 passed in W.A. No. 259 of 2011 to the extent that the Management has to pay the salary of the workman as per the revised pay structure.

Mr. Ganeswar Rath, Learned Senior Advocate appearing on behalf of the Opp. Party Management, Paradeep Phosphates Ltd. submitted that the review petition is liable to be dismissed on the ground of delay & laches on the part of the review Petitioner. Placing reliance upon the cases of the Hon''ble Supreme Court in Kunhayammed and Others Vs. State of Kerala and Another, , Gopabandhu Biswal Vs. Krishna Chandra Mohanty and Others, it was submitted that the review Petitioner is not "a person aggrieved". It was further submitted that Section 114 read with Order 47, Rule 1, CPC provides for limitation for entertaining the review petition. The limitations are that the party filing the application for review has discovered a new important matter for evidence which was not within his knowledge or could not be produced by him at the time when the decree was passed or on account of some mistake or for other sufficient reason. In the instant case, the review Petitioner had knowledge of revision of wages. Therefore, the contention taken by the review- Petitioner that he had no knowledge of revise scale of pay during pendency of the Writ Petition & writ appeal is not correct. It was further submitted that the claim for revised wage is a fresh cause of action. Therefore, the review petition is not maintainable. Payment of revised wages will render the application u/s 33 (2) (b) which is sub judice before the Industrial Tribunal, infructuous & consequent thereupon the order of dismissal passed by the disciplinary authority will automatically be concluded as nullity.

This Court has already condoned the delay in presenting the review petition vide Order Dated 29.9.2011. It is not in dispute that the Petitioner is entitled to get salary for the period from 21.08.2006 to 18.12.2009 & there was a Circular dated 30.4.2009 issued for revision of wages of unionised employees of Paradeep Phosphates Ltd. Perusal of the said Circular reveals that consequent upon signing of memorandum of settlement between PPEU & PPSA on 24.3.2008, the Management has revised the wages & prerequisite/allowances of non- executive employees from 1.1.2007 to 31.12.2011. Having regard to the undisputed fact that salary of the workman has been revised from 1.1.2007 to 31.12.2011 the Petitioner is entitled to get such revised scale of pay from 01.01.2007 to 18.12.2009 in view of the decision of the Hon''ble Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Others, despite the fact that the contention of the review Petitioner that he had no knowledge of revision of the wages during pendency of the Writ Petition & writ appeal is not factually correct. Moreover, law is well settled that substantial justice must be given preference over technicalities & Court must do justice at all costs & at the same time the Court should not forget that justice should be tempered with mercy [see Ashutosh Vs. State of Rajasthan and Others, . Therefore, Opp. Party No. 1-Management is directed to pay the wages & other consequential benefits as per the revised pay scale as applicable to Petitioner-workman instead of paying the wages & other consequential benefits as directed by this Court vide Judgment dated 12.5.2011 passed in W.A. No. 259 of 2011. The Opp. Party-Management is directed to pay the revised scale of pay & other consequential benefit within a period of 8 weeks from the date of production of certified copy of this order. In the result, the review petition is allowed to the extent indicated above.

V. Gopala Gowda, C.J.

I agree.