Krishan Chander vs Delhi Transport Corporation & ...
2008 Latest Caselaw 1607 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     REVIEW PETITION 207 of 2005
                   IN
      WRIT PETITION (CIVIL) 3379 OF 2003
                                     Reserved on:          16th July, 2008

                                  Date of Decision: 11th September, 2008

      KRISHAN CHANDER                                       ..... Petitioner

                         Through:       Mr. H.K. Chaturvedi, Adv.
                    versus

      DELHI TRANSPORT CORPORATION & ANR.                 ..... Respondents

                           Through:      Ms. Aarti Mahajan, Adv.

%     CORAM:
      HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

      1.     Whether reporters of local papers may be allowed to see
             the judgment? Yes.
      2.     To be referred to the Reporter or not? Yes.
      3.     Whether the judgment should be reported in the Digest?
             Yes.


                              JUDGMENT

SIDDHARTH MRIDUL, J.

1. The present petition seeks review of order dated 11th October,

2004 in view of the judgment of the Constitution Bench of Supreme

Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram

Gopal Sharma & Others, reported as (2002) 2 SCC 244.

2. By the judgment and order dated 11th October, 2004 this Court

disposed of two writ petitions being Writ Petition (Civil) No. 3379 of

2003 and Writ Petition (Civil) No. 5712 of 2003 filed by the workman

and the Delhi Transport Corporation (for short "Corporation")

respectively. The writ petition filed by the workman prayed for

issuance of an appropriate writ/direction to the respondent to grant

him reinstatement with consequential benefits after rejection of the

application filed by the Corporation under Section 33(2)(b) of the

Industrial Disputes Act, 1947 vide order dated 23rd October, 2002. The

other petition filed by the Delhi Transport Corporation challenged the

correctness of the order passed by the learned Industrial Tribunal

dated 23rd October, 2002. Since both the petitions arose from one and

the same award, it was considered appropriate to dispose of both

these petitions by a common judgment.

3. Before addressing the rival contentions of the parties it will be

relevant to adumbrate the facts giving rise to the present application:

(a) The applicant-workman was employed as a Driver with the

Delhi Transport Corporation. He was served with charge

sheet on 25th October, 1991 with the allegations that he

availed 40 days leave without pay during the period

between 1st January, 1991 to 30th June, 1991.

(b) Upon conclusion of a domestic enquiry held in accordance

with the Rules a show-cause notice was served upon the

workman on 24th November, 1992. Eventually, an order of

punishment removing the workman from service of the

Corporation was passed on 7th January, 1993.

(c) The Corporation, thereafter, applied for approval of the

action under the provision of Section 33(2)(b) of the Act.

The Industrial Adjudicator declined to approve the action

of the Corporation and rejected its application vide order

dated 23rd October, 2002.

(d) As aforesaid, the order dated 23rd October, 2002 was the

subject matter of the writ petitions filed by both the

parties before this Court. This Court vide order dated 11th

October, 2004 after noticing that the workman had

already been taken back into service by the Corporation

and after careful consideration of the evidence recorded

by the Industrial Adjudicator held that the impugned order

dated 23rd October, 2002 did not call for any interference.

(e) On the merits of the writ petition filed by the workman

claiming the relief of full back wages by virtue of the order

dated 23rd October, 2002, this Court held that "....there are

no specific averments made in the petition that he was not

employed during the interregnum period of dismissal of his

service till the date of his reinstatement. Furthermore, it cannot

be presumed that he is a person who was incapable of earning.

Workman is admittedly a driver. Thus, in normal course of life

he would be able to make his two ends meet. In these

circumstances and keeping in view the judgment of this Court

in M.P. State Electricity Board vs. Smt. Jarina Bee, JT 2003

(5) SC 544, it is not necessary for this Court to go into greater

detail in relation to payment of back wages and particularly in

view of the fact that there are no pleadings to the effect that

workman was not able to get employment despite his best

efforts".

(f) This Court vide the order dated 11th October, 2004

thereafter proceeded to consider the relevant portion of

the judgment in M.P. State Electricity Board vs. Smt.

Jarina Bee (supra) and thereupon held as follows:

"14. For the reasons afore-recorded, I allow this petition and direct the respondents to reinstate the workman with continuity of service with back wages, however restricted to 25% of the said wages for the interregnum period i.e. from the date of termination till reinstatement. I have restricted the back wages to 25%, keeping in view the absence of specific pleadings and normal conduct of the workman in the facts and circumstances of this case."

(g) Aggrieved and dissatisfied with the order of this Court

allowing partially the writ petition vide order dated 11th

October, 2004 the workman preferred an appeal

numbered as LPA No. 1147 of 2005.

(h) A Division Bench of this Court vide its order dated 27th

May, 2005 disposed of LPA No. 1147 of 2005 with the

following order:

"There is an inordinate delay of 165 days in preferring the appeal. On realizing the situation counsel came out with a case that the judgment delivered by the Constitution Bench of the Supreme Court cited before the learned Single Judge has not been considered. We find no reference to this in the impugned order. It is required to be noted that it was the duty of the counsel immediately after the judgment was received to move the concerned court but he has not done the same and is making grievance before this Court which cannot be granted. Therefore we are not entertaining the appeal. However it will be open for the appellant to file a review application in accordance with law. Permission granted. Rejected as withdrawn."

(i) In these circumstances the workman filed the present

application dated 13th July, 2005 praying for a review of

order dated 11th October, 2004 and consequently for grant

of full back wages instead of 25% back wages granted

thereby.

4. Mr. Chaturvedi, counsel appearing on behalf of the applicant

firstly submitted that this Court had not considered the decision of the

Constitution Bench in the case of Jaipur Zila Sahakari Bhoomi

Vikas Bank Ltd. vs. Ram Gopal Sharma & Others (supra), in

terms of which the applicant was entitled for 100% back wages.

Counsel for the applicant secondly submitted that the judgment under

review dated 11th October, 2004 erred in fact, inasmuch as, there was

a specific averment in the affidavit accompanying the writ petition to

the effect that the workman was still unemployed and not working in

any establishment and facing great financial hardship because the

Corporation was not reinstating him with consequential benefits.

5. Per contra, Ms. Aarti Mahajan, counsel for the Corporation

firstly stated that not only was the review petition filed belatedly after

the rejection of the Letters Patent Appeal, and after a gap of more

than nine months from the date of the order under review, but even

the LPA No. 1147 of 2005, as noticed by the Division Bench, had been

filed after an inordinate delay of 165 days. It was her submission that

the review application is not maintainable as being time barred as it is

neither accompanied by an application for condonation of delay, nor

any explanation has been offered for the same. Counsel secondly

urged that in the judgments cited in the order under review dated 11 th

October, 2004 fully support and substantiate the decision of the

Single Judge of this Court. Lastly, she urged that there was no

mistake or error in the order dated 11th October, 2004, inasmuch as,

there was absolutely no specific averment in the body of the writ

petition that the workman was not employed during the interregnum,

and further that the affidavit in support of the petition does not

constitute the petition itself. Furthermore, even in the affidavit in

support, relied upon by the workman, it had only been stated that the

workman was still unemployed and it was nowhere stated that he was

unemployed even earlier or that he was continuously unemployed

from the date of his dismissal from service.

6. Before considering the contentions raised before me during the

course of hearing it would be useful to extract the relevant portions of

the decisions relied upon by the parties in support thereof.

1) In Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs.

Ram Gopal Sharma & Others (supra), the Supreme

Court after considering the question whether the rejection

of approval under Section 33(2)(b) of the Industrial

Disputes Act, 1947 renders the order of dismissal

ineffective from the date it was passed or from the date of

non-approval held that:

"Where an application is made under Section 33(2)(b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not, etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 33(2)(b)

dismissing or discharging an employee brings an end of relationship of employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement."

2) In M.P. State Electricity Board vs. Smt. Jarina Bee

(supra), and relied upon in the order under review dated

11th October, 2004 the Supreme Court stated that:

"6. Shri S.K. Agnihotri, learned counsel appearing for the Board, submitted that the Industrial Court as well as the High Court fell in grave error by holding that the award of back wages was the natural consequence in all cases where the order of removal was set aside. Mr. B.S. Banthia, learned counsel appearing for the respondent (widow of the employee) submitted that the High Court was justified in its conclusion considering the fact that the order of dismissal was without sanctity in law. Alternatively, it was submitted that full back wages are to be paid, considering the nature of the allegations and findings recorded by the Labour Court, Industrial Court and the High Court and the directions cannot be faulted on the facts of the case.

7. In P.G.I. of Medical Education and Research, Chandigarh v. Raj Kumar (JT 2001(1) SC 336), this Court found fault with the High Court in setting aside the award of the Labour Court which restricted the back wages to 60% and directing payment of full back wages. It was observed thus:

"The labour court being the final court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail

the finding of the Tribunal or the labour Court. It is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect."

Again at paragraph 12, this Court observed:

"Paying of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straight-jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety."

8. The position was reiterated in Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya and Anr. (2002 AIR SCW 3008) and Indian Railway Construction Co. Ltd. v. Ajay Kumar (JT 2003 (2) SC 295).

9. Applying the legal principles, the inevitable conclusion is that the High Court committed an error in holding that the award of full backwages was the natural consequences."

3) In Allahabad Jal Sansthan vs. Daya Shankar Rai and

Another, reported as 2005 V AD (SC) 224, the Supreme

Court after considering and analyzing earlier decisions

stated that:

"17. We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full back wages was the usual result. But now with the passage of time, it has come to be realized that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at.

18. In view of the fact that the Respondent had been reinstated in service and keeping in view the

fact that he had not raised any plea or adduced any evidence to the effect that he was remained unemployed throughout from 24.1.1987 to 27.2.2001, we are of the opinion that the interest of justice would be sub-served if the Respondent is directed to be paid 50% of the back wages."

4) In Delhi Transport Corporation vs. Virender Singh,

116 (2005) DLT 26, a Single Judge of this Court after

considering the question of reinstatement with back wages

pursuant to rejection of an application seeking approval of

the Tribunal under Section 33(2)(b) of the Industrial

Disputes Act, 1947, held as follows:

"19. Learned counsel appearing for the workman while relying upon the judgment of the Supreme Court in M.D.Tamil Nadu State Corporation v. Neethivilangam (supra) contended that wherever a direction under Section 33(2)(b) of the Act is declined inevitable conclusion will be that workman continues in employment as is his services were never terminated. This of course in law cannot be disputed but claim of back wages is not something which automatically flows to the principal relief of reinstatement granted to the workman in all cases and without exemption. In the writ petitions no averment has been made and it is not even normal human conduct that a workman would remain unemployed for this long period.

20. In view of the above judgments of the Supreme Court, I am of the considered view that the workman is entitled to reinstatement with back wages. However, in the interest of justice and keeping in view the circumstances of the present case I am further of the view that awarding of 40% back wages to the petitioner would meet the ends of justice."

7. It is true, there is nothing in Article 226 of the Constitution to

preclude the High Court from exercising the power of review which

inheres in every Court of plenary jurisdiction to prevent miscarriage

of justice or to correct grave and palpable errors committed by it. But,

there are definitive limits to the exercise of the power of review. The

power of review may be exercised for the correction of a mistake but

not to substitute a view. The power of review can be exercised where

there is some mistake or error apparent on the face of the record, but

cannot be exercised where different views on the same subject are

possible. The limitations of the power of the Court under Order 47

Rule 1 CPC are similar and applicable to the jurisdiction available to

the High Court under Article 226 of the Constitution of India. The

Court in exercise of its power to review has to proceed with caution so

as to ensure that such power is not exercised or permitted to be used

for an arguably erroneous decision to be reheard and corrected. The

review cannot be treated as an appeal in disguise and can be

exercised only for correction of a patent error of law which is

apparent on the face of the record and not an error which has to be

traced after elaborate arguments being noted for establishing it. A

review of a judgment is not maintainable if the only ground for review

is that the point is not dealt in correct perspective, so long as the

point is dealt with and answered. In Parsion Devi vs. Sumitri Devi,

reported as (1997) 8 SCC 715, the Supreme Court held as under:

"It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be

remembered has a limited purpose and cannot be allowed to be an appeal in disguise. An error which is not self evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record."

8. In the present case, it is observed that it is the case of the

applicant that the order under review dated 11th October, 2004 did

not consider the decision in the case of Jaipur Zila Sahakari

Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma & Others

(supra), inevitably and automatically entitling the workman for 100%

back wages. It was urged on behalf of the petitioner himself that the

said decision was cited in the petition before this Court. In this behalf

it is noticed that in the order under review dated 11th October, 2004

this Court after considering the judgment of the Supreme Court in

M.P. State Electricity Board vs. Smt. Jarina Bee (supra), came to

the conclusion that the award of full back wages was not warranted in

the facts and circumstances of the case. The opinion so expressed

constitutes a different view on the subject of payment of back wages,

albeit a view that is possible, and as such, cannot be a ground to

review the order dated 11th October, 2004. Furthermore, it is seen

that the view expressed in the order under review relying upon the

decision of the Supreme Court in M.P. State Electricity Board vs.

Smt. Jarina Bee (supra), has been cited with approval by the

Supreme Court in the decision in Allahabad Jal Sansthan vs. Daya

Shankar Rai and Another (supra) and followed by this Court in the

decision in Delhi Transport Corporation vs. Virender Singh

(supra). It is not a sufficient ground for review that the court should

have taken a different view or the judgment proceeded on an

incorrect exposition of the law. A mere error of law is not a ground for

review, since a decision cannot be reviewed on the ground that it is

erroneous. It must be an error of law apparent on the fact of the

record to be amenable to review. For that the point of law involved

must be indisputable. That situation, in any view, does not obtain in

the instant case in relation to the issue of payment of full back wages.

Therefore, the first submission on behalf of the applicant cannot be

countenanced.

9. Insofar as the second submission urged on behalf of the

applicant is concerned, I find considerable force in the contention

made on behalf of the Corporation that, (a) there was no specific

averment in the body of the writ petition that the workman was not

employed during the interregnum period, (b) that the affidavit in

support of the petition, although it mentioned that the workman is

unemployed, cannot be said to constitute a part of the main body of

the petition and (c) even otherwise the affidavit in support, only stated

that the workman was still unemployed, without any specific pleading

that the workman had been unemployed earlier or that he was

continuously unemployed from the date of his dismissal from service.

10. Apart from the merits of the submissions made on behalf of the

workman, it is observed that the application for review was filed only

on the 13th July, 2005, after a gap of about nine months from the date

of the order under review i.e. 11th October, 2004. Also that, even the

LPA filed against the order under review had been filed after an

inordinate delay of 165 days. Furthermore, the present application for

review was not filed immediately after the rejection of the LPA on the

27th May, 2005 and was filed only on 13th July, 2005. The application

for review is not accompanied by any application for condonation of

delay, nor has any explanation been offered for the delay in filing the

same. In this behalf, it is observed that, the Limitation Act prescribes

a uniform period of 30 days for a review of judgment. The application

for review is, thus, not maintainable even on this ground. In addition,

the concept of finality of judgment ought to be enforced with its

normal rigour. If the practice adopted by the applicant in the present

case is permitted it will amount to undermining the concept of finality

of proceedings, and in every case, the party who is not satisfied with

the judgment, would seek a rehearing of the matter in the guise of

review. It is a settled canon of law that merely because the parties are

not satisfied with the judgment of the Court, or it was possible to take

another view on reasonable interpretation of law and facts, that would

itself be no ground for review of judgment. In the circumstances the

application for review is an attempt on the part of the workman to

have a rehearing which is impermissible in law.

11. For the foregoing reasons the review petition is without any

merit and is accordingly dismissed, leaving the parties to bear their

own costs.

SIDDHARTH MRIDUL, J.

September 11, 2008 mk