Hotel Alka vs Joint Labour Commissioner, Delhi ...
2006 Latest Caselaw 1240 Del

JUDGMENT

Gita Mittal, J.

1. The question which is required to be answered by way of the present order is as to whether a party can be denied adjudication in a prior application on the ground that it subsequently filed an application seeking a similar relief which it withdrew.

2. Shri Daulat Ram and Shri Rajesh Massey were working with the petitioner. They challenged the termination of their services through the Hotel Mazdoor Union which took up their cause and demanded their reinstatement in service. This matter was referred to joint arbitrators with the consent of the parties. By an award running into ninety two pages which is dated 17th May, 1988, the arbitrators granted reinstatement to these workmen without back wages and directed the petitioner to reinstate the respondents into service with effect from one month from the date of the award. This award was published in accordance with the provisions of Section 17 of the Industrial Disputes Act, 1947 on 14th June, 1988.

3. It appears that the workmen did not assail the denial of back wages. The present petitioner also did not assail the award by any proceedings available to it in law. Upon publication on 14th June, 1988, the award became enforceable and binding on all parties.

4. On 8th May, 1989, after a demand was sent to the petitioner to implement the award on behalf of the respondents, the respondents/workmen through the union filed a complaint before the Labour Commissioner for prosecution of the petitioner's managing director and general manager for non-implementation of the award. The petitioner contested this complaint in which, by an order dated 28th March, 1990, the Joint Labour Commissioner directed the petitioner to reinstate the respondent Nos. 3 and 4 (the workmen noticed hereinabove) in service as per the award within ten days of the issuance of this award and also made a further order requiring the petitioner to make payment to the workmen.

Aggrieved thereby, on 4th April, 1990, the petitioner herein has filed the present writ petition.

5. By an order dated 18th April, 1990, notice was issued to the respondents. On the application for interim relief, this Court directed that the petitioner would not be prosecuted in pursuance of the order dated 28th March, 1990 till the next date. This interim order was continued from time to time. On 10th July, 1991, the Division Bench of this Court issued rule in the matter and confirmed the interim order of stay. It was however directed that in the circumstances of the case, hearing of the writ petition be expedited. The matter was not listed for hearing for a substantial period till 1st October, 1999 when it was placed before the Division Bench when it was directed that in view of the order dated 10th July, 1991 issuing rule in the matter, the writ petition was required to be placed before a Single Judge for hearing.

6. As the matter was still not taken up for hearing, the respondents/workmen filed CM 10838/1999 seeking early hearing in the matter which was allowed on 2nd November, 1999 when the court directed listing of the matter in the fist five cases in the category of 'Regular Matters' in the week commencing 6th January, 2000.

7. Despite the above order directing expedited hearing of the matter, it appears that nothing further happened till the writ petition was listed and taken up on 17th August, 2004. On that date, the respondents were not present when the matter was called out. On a statement on behalf of the petitioner that the respondents/workmen had not bothered to approach the petitioner for reinstatement for all these years. It was further urged that for this reason, it would appear that the respondents/workmen were not interested in rejoining duties with the petitioner. It was also pointed out that they were absent in the hearing. In these circumstances, the order dated 28th March, 1990 was set aside and it was held by this Court that the petitioner was not obliged to reinstate the respondents/workmen.

8. The present applications have been filed only thereafter on or about the 29th October, 2004. By CM 13179/2004, the respondents/workmen have sought recall of the order dated 17th August, 2004 while by CM 13180/2004, the respondents/workmen are seeking condensation of delay in filing the application seeking recall of the order. Both these applications have been filed in identical circumstances and as such have been taken up together for hearing and consideration.

9. The workmen have set out the aforenoticed facts with regard to listing of the present matter which are born out from the record. It has further been stated that the workmen were being represented by Mr. Anil Kumar Gupta, Advocate who had also filed the counter affidavit on their behalf as back as on 19th January, 1993. The workmen have stated that they had returned to the native place and were not aware as to what has happened in the present matter. According to the respondents, unfortunately their counsel Mr. Anil Kumar Gupta expired sometime in February, 2002 and that the workmen were not aware of his demise. It is further stated that the general secretary of the Union representing the respondent/workman (respondent No. 2 herein) also expired sometime in the year 2001. The workmen have stated on affidavit that they were not aware of the deaths of the counsel or the general secretary. They returned from their native place in September, 2004 when they made inquiries about the status of the case and learnt about the demise of their counsel. As an immediate consequence, they authorised Mr.Nilambar Pandey and Mr.Vidhu Upadhyaya, Advocates to enquire about the status of the writ petition. The new counsel engaged by the workmen inspected the Court file on 11th October, 2004 when it was brought to their knowledge that the writ petition had been disposed of in favor of the petitioner by order dated 17th August, 2004 depriving the workmen of their right to reinstatement under the award, which had happened on account of their non-representation before this Court. So far as the award directing the reinstatement is concerned, the workmen have stated that they had made various representations for reinstatement to the petitioner including demand notices after the passing of the award. It was on account of refusal of the management that the complaint dated 10th May, 1989 was necessitated and further representations and demands made also did not result in any positive response. These documents had been placed on the record Along with the counter affidavit which was filed as back as on 19th January, 1993. The workmen have stated that they were throughout willing to rejoin the duties with the petitioner and were even willing to do so at the time of filing of the application.

10. The workmen have explained the delay which has occurred in filing CM 13179/2004 on account of the demise of their counsel and the secretary of the union and have pleaded that grave injustice would result to them if they were not heard in the main matter.

11. These applications on behalf of the workmen have been vehemently opposed on behalf of the petitioner. It is pointed out by Mr. Vinay Bhasin, learned senior counsel representing the petitioner that long after the filing and pendency of these applications, the workmen filed Review Petition No. 6/2005 which they withdrew unconditionally on 14th January, 2005. It is contended that the prayer in the review petition was in identical terms as the prayer made in CM 13179/2004 and sought the same relief infact. According to learned senior counsel, having made such review petition and withdrawn the same, the respondents/workmen could not possibly be permitted to seek adjudication in the present applications. It is further contended that the application of the respondents/workmen is grossly belated, their contentions deserved to be disbelieved and for these reason, no relief could possibly be given to the workmen in these applications.

12. I have heard learned counsel for the parties and perused the available record. The workmen have filed CM 13179/2004 seeking the following reliefs:

i) Recall/modify the order/judgment dated 17.08.2004;

ii) Direct the Petitioner/Management to implement the award-dated 17.05.1998 and reinstate the workman back on duty;

iii) Pass such other order as is deemed fit and proper in the facts and circumstances of the case.

This application was accompanied by CM 13180/2004 seeking condensation of delay in filing CM 13179/2004.

13. This application was treated by the registry as an application for review and, by an order passed on 6th November, 2004, was directed to be listed before M.B. Lokur, J who had passed the order dated 17th August, 2004.

14. When the application came up before the court on 8th November, 2004, the court was of the view that since CM 13179/2004 was not an application for review, it should be listed before the appropriate Bench as per roster on 17th November, 2004.

The application was listed by the Registry on 19th November, 2004 when it was adjourned to 8th December, 2004 and again to 9th March, 2005.

15. In the meantime, the respondents/applicants filed RP. No. 6/2005 seeking review of the order dated 17th August, 2004. In this review petition, the workmen have explained the circumstances in which the same was filed thus:

11. That the Respondent/workman filed an application for modification/recalling of the order-dated 17.08.2004 explaining the reasons for non-appearance on behalf of Respondent No. 3/workman when the matter was heard by the Hon'ble Court. The said application came up for hearing before the Hon'ble Court on 08.11.2004 and it was directed that the same be listed before the appropriate Bench on 17.11.2005. The matter was listed before the Hon'ble Court on 19.11.2004 and the Hon'ble Court in the course of hearing expressed its inability to grant the relief as prayed by the Respondent/Workman unless this Hon'ble Court reviews the order/judgment dated 17.08.2004.

16. Thus, review petition No. 6/2005 accompanied by CM No. 180/2005 seeking condensation of delay in filing the review petition were listed again before the same Bench which had passed the order dated 17th August, 2004 and 6th November, 2004 on 14th January, 2005. It is noteworthy that this application and the review petition were filed in identical circumstances and gave the same explanation as stated in CM 13179/2004. On 14th January, 2005, delay in filing the review petition was condoned and CM 180/2005 for this purpose was allowed. However, review petition No. 6/2005 was permitted to be withdrawn.

17. Thereafter, notice has been issued on CM 13179/2004 and time was given to the petitioner to file its reply. In these circumstances, I find force in the submissions made on behalf of the respondents/ applicants that the review application was filed subsequent to the filing of CM 13179/2004 and that the review petition had been withdrawn on 14th January, 2005 only for the reason that an application seeking a similar relief as that sought in RP No. 6/2005, that is CM 13179/2004, was already pending before the court.

18. Perusal of the order dated 14th January, 2005 shows that the court accepted the circumstances which has resulted in the delay in filing the review petition. CM 180/2005 was therefore allowed. Thereby, this Court accepted the explanation rendered by the respondents as the reason for the delay in filing the review petition. The reasons given by the respondent as noticed above are identical to those stated in CM Nos. 13179/2004 and 13180/2004.

The review petition only contained a further explanation which has been noticed hereinabove as the circumstances in which the review petition was filed.

19. The afore-noticed explanation rendered by the petitioner for the reasons in which delay has occurred and it had failed to appear before this Court on 17th August, 2004 had been accepted by this Court when the order dated 14th January, 2005 allowing CM No. 180/2005 was passed. Therefore, the only objection which requires to be considered is the objection taken by Mr. Vinay Bhasin, learned senior counsel appearing for the petitioner that the application under Section 151 was not maintainable as the respondents had filed a review petition. Further, the applicants having withdrawn the review petition, these applications were not maintainable.

20. The other ground of opposition on behalf of the petitioner to CM 13179/2004 is on the ground that the only course open to the respondents was to seek review of the order dated 17th August, 2004 and that CM 13179/2004 was a mere application under Section 151 of the CPC which was not permissible in law.

21. Learned senior counsel appearing for the petitioner has been at pains to point out that the prayer made in CM No. 13179/2004 is identical to the prayer made in RP No. 6/2005. Therefore, CM No. 13179/2004 is really an application seeking review of the order dated 17th August, 2004 but couched as an application seeking recall/modification of the order dated 17th August, 2004. At best, then, it would be a situation where an applicant has filed an application which is couched under the wrong provision of law. There is no dispute that the court has jurisdiction to review or modify/recall an order passed. It is well settled that the court having jurisdiction to grant the relief sought in an application would not be precluded from doing so, merely because an application has been couched under a wrong provision of law.

The order dated 14th January, 2005 also supports the explanation given by the respondents for withdrawl of RP No. 6/2005. The application for condensation of delay having been allowed, there could possibly be no reason for withdrawl of the review petition which was filed on identical reasons and grounds other than the pendency of CM 13179/2004 wherein the applicants had sought the same relief.

For all these reasons, the objection of the petitioner that the relief cannot be granted in these applications, has not been filed under the provision governing review of an order is not sustainable.

22. The writ petition had been allowed in the absence of the respondents by the order dated 17th August, 2004. I see no legal prohibition in the respondents seeking recall or modification of the ex-parte order by way of an appropriate application. Even though, the Code of Civil Procedure is not strictly applicable to proceedings under Article 226 of the Constitution of India. However, the courts have been entertaining applications for various reliefs which are filed by parties which may be couched under various specific provisions of the Code of Civil Procedure. Instances of this are to be found in applications seeking interim relief, substitution of legal heirs and even review petitions. Before this Court, no arguments have been laid that this Court did not have any jurisdiction to recall or modify the order or that review of the order dated 17th August, 2004 was impermissible. Therefore, merely because the respondents have captioned the application as being under Section 151 of the CPC, though they had sought a relief which could have been granted by this Court, in my view, would not bar the maintainability of the application.

23. So far as the objection based on delay in filing the application is concerned, I find that on 14th January, 2005 this Court accepted the explanation given by the respondents in filing Review Petition No. 6/2005. Review Petition No. 6/2005 was filed long after the filing of CM 13179/2004. The reasons given and the explanation rendered for the delay includes the reasons for the delay which have occurred in filing CM 13179/2004. The application for condensation of delay was allowed on 14th January, 2005. This order has attained finality.

Even otherwise, no material has been placed before this Court to enable it to disbelieve the submissions made on behalf of the respondents. The demise of the counsel as well as that of the secretary of the union have been set up as the reasons and circumstances in which the respondents did not have knowledge of the passing of the orders on 17th August, 2004. The workmen have explained that they have not been reinstated. Secure in the belief that their matters were being adequately looked after, they returned to their native village. I find that the respondents have adequately explained the reasons for the delay in filing CM 13179/2004 and the same were bonafide. Delay in filing CM No. 13179/2004 deserves to be condoned. CM No. 13180/2004 is therefore allowed.

24. In addition to the reasons noticed hereinabove setting out the circumstances in which delay was occasioned, it is noteworthy that by the award dated 17th May, 1988, the industrial adjudicator had directed reinstatement into service of the respondents. This award was never assailed by the petitioner and has attained finality. Respondents have submitted that they have made request to the petitioner to implement the award and had placed copies thereof with their counter affidavit. It was the implementation proceedings taken by the respondents which were impugned by way of the writ petition. The respondents have undoubtedly been pursuing the defense of the writ petition. Not only was the counter affidavit filed, but the respondents had also made an application seeking early hearing. Despite orders directing expedited hearing of the matter, no hearing on the writ petition was effectuated for a long period of almost five years. Thereafter, it was suddenly listed and on the first occasion itself, the order dated 17th August, 2004 was passed. In these circumstances, there is nothing to support the contention that the respondents were careless in prosecution of the writ petition or that they were not interested in the relief which had been granted to them.

25. By this application, the respondents have pointed out by the order dated 17th August, 2004 that they have been deprived of the fruits of the industrial award which resulted in the adjudication of the refusal of the petitioner to assign duties to them in the end of March, 1987. The present case is not a case where the respondents were negligent and therefore deserve to be deprived of their right to contest the writ petition. I am satisfied that the respondents have adequately explained the circumstances in which they were absent before this Court on th 17th August, 2004. The matter was finally listed and taken up for hearing after a period of five years. Valuable rights which had been created in a party after a long drawn adjudication, do not deserve to be taken away when a party is prevented by sufficient appearance in the court.

The respondents are merely seeking a hearing in the matter which has remained pending in this Court since 1990 till the passing of the ex-parte order in the year 2004. In my view, the rights of the respondents do not deserve to be taken away ex-parte in the circumstances set out in the application filed by the respondents.

26. In this view of the matter, I am of the view that the respondents were prevented by circumstances beyond their control and for reasons which are bonafide from appearance before the court on 17th August, 2004. They have adequately explained the circumstances thereof in the application.

I therefore also allow CM No. 13179/2004 and recall the order dated 17th August, 2004. The writ petition shall stand restored to its original position.

There shall be no order as to costs.