Delhi High Court

Bishwanath Traders And ... vs Sh.Ajay Kumar Singh & Another on 8 October, 2010

Author: Anil Kumar

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     R.A. 200/2008 in W.P.(C) No.4902/2003

%                            Date of Decision: 08.10.2010

Bishwanath Traders and Investment Ltd.        .... Petitioner
                 Through Mr.Ashwini K.Sakhuja, Mr.Puneet Saini
                           and Mr.B.B Jain, Advocates

                                     Versus

Sh.Ajay Kumar Singh & Another               .... Respondents
                Through    Mr.Anjum     Kumar,   Advocate                   for
                           respondent No.1

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.    Whether reporters of Local papers may be                YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                  NO
3.    Whether the judgment should be reported                 NO
      in the Digest?



ANIL KUMAR, J.

1. This is an application by the petitioner/applicant seeking

review of order dated 11th February, 2008 whereby by an order under

Section 17 (B) of the Industrial Disputes Act, 1947 was passed in favour

of respondent No.1.

2. According to the petitioner/applicant, the order dated 11th

February, 2008 was challenged in an appeal being L.P.A.No.197 of

2008, which was withdrawn by the petitioner/applicant by order dated

28th April, 2008, however, the petitioner/applicant was allowed to seek

review of order dated 11th February, 2008.

3. The petitioner/applicant has sought review of order dated

11th February, 2008 on the ground that the petitioner/applicant had

engaged an Investigating Agency namely, M „n‟ F Consultants who had

given its report dated 26th April, 2008 and as per the report, respondent

No.1 is gainfully employed with Auto Sunlight, C-126, first floor Gate

No.3, Phase-I, Naraina, New Delhi as Supervisor/Office in charge for

last 6 years at the monthly salary of Rs.4,000/-. The alleged report and

a copy of Compact Disc have been filed as annexure along with the

application by the applicant.

4. The petitioner/applicant has contended that since

respondent No.1 is gainfully employed with Auto Sunlight, order dated

11th February, 2008 is liable to be reviewed, as relief under Section 17

(B) can be granted only if the concerned workman respondent No.1 is

not gainfully employed and has no source of income.

5. Along with the application, the petitioner/applicant has

also filed a Compact Disc allegedly showing that the applicant is

employed with Auto Sunlight, C-126, first floor, Gate No.3, Phase-I,

Naraina, New Delhi and has also filed three photographs. In two

photographs, respondent No.1 is standing near a structure where some

of the wheel caps of a vehicle are lying, in the third photograph, the

petitioner/applicant is holding a wheel cap. These photographs do not

show even prima facie that the respondent no.1 is employed with "Auto

Sunlight" in any manner.

6. Along with the application seeking review of order dated

11th February, 2008, the petitioner/applicant has also filed an

application under Section 5 of the Limitation Act, for condonation of

delay in filing the review application, inter-alia, on the ground that

liberty was granted to the petitioner/applicant to file a review petition

vide order dated 28th April, 2008 in L.P.A.No.197 of 2008 and CM Appl.

No.5873 of 2008. The petitioner/applicant has contended that there is

58 days delay in filing the review petition, and in the facts and

circumstances, the delay be condoned and review petition be heard and

disposed off on merits.

7. After application for review was filed, the copy of the

Compact Disc, which was filed along with the application was not given

for considerable period to the counsel for respondent No.1. Pursuant to

order dated 6th August, 2010, the copy of the Compact Disc relied on by

the petitioner/applicant was given to the counsel for respondent No.1

who has filed reply dated 15th September, 2010 contending, inter-alia

that respondent No.1 is not gainfully employed, nor any substantial

proof has been filed on behalf of the petitioner/applicant to prove that

respondent No.1 is gainfully employed. It is reiterated by respondent

No.1 that he is unemployed since the date of his termination i.e. 14th

March, 1992 and despite the order dated 11th February, 2008 passed by

this Court no amount has been paid to respondent No.1 despite his

illegal termination on 14th March, 1992. It is contended by the learned

counsel that the application for review has been filed with a view not to

comply with the order dated 11th February, 2008. It is also asserted

that the said order has not been stayed, however, in compliance thereof

no amount has been paid to the respondent no.1.

8. The learned counsel contends that the report of the

investigating agency (M „n‟ F Consultants) also does not disclose such

facts on the basis of which it can be inferred that respondent No.1 is

gainfully employed for last 6 years with M/s Auto Sunlight. The report

does not disclose the investigation of any such records or the details

thereof from which it could be inferred that respondent No.1 is gainfully

employed.

9. The learned counsel for respondent No.1 has also

contended that if respondent No.1 is gainfully employed for past 6 years

as has been alleged by the alleged investigating agency, then the

applicant should have got this investigated earlier and now in the garb

of the alleged investigating agency report, the applicant is not entitled to

seek review of order dated 11th February, 2008.

10. It is no more res integra, that the discovery of new evidence

or material by itself is not sufficient to entitle a party to seek review of a

judgment. A review is permissible on the ground of discovery of new

evidence only when such evidence is relevant and of such character, if it

had been produced earlier, it might possibly have altered judgment.

Further it must be established that the applicant had acted with due

diligence and that existence of the evidence, which he has now

discovered, was not within his knowledge when the order was passed. If

it is found that the applicant has not acted with due diligence then it is

not open to the Court to admit evidence on the ground of sufficient

cause. The parties seeking review should prove strictly the diligence he

claims to have exercised. In a review application, a party cannot be

allowed to introduce fresh documents merely to supplement the

evidence, which might possibly have held some effect on the result.

11. So far as the power of review available to a court is

concerned, in MANU/SC/0705/1999=AIR 2000 SC 84, Ajit Kumar Rath

v. State of Orissa and Ors it was held that this power is not an absolute

power and is hedged in by the restriction indicated in Order 47 of the

Code of Civil Procedure. Such power can be exercised on the application

of a person, on the discovery of new and important matter or the

evidence which, after the exercise of due diligence, was not within his

knowledge or could not be reproduced by him at the time when the

order was made. This power can also be exercised on account of some

mistake or error apparent on the face of the record or for any other

sufficient reason. A review cannot be sought merely for fresh hearing or

arguments or correction of an erroneous view taken earlier. The power

of review can be exercised only for correction of a patent error of law or

fact which stares in the face without any elaborate argument being

needed for establishing it. Similarly in Aribam Tuleshwar Sharma v.

Aribam Pishak Sharma and Ors, 1979 4 SCC 389 the Supreme Court

held that :-

"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 on the discovery of new and important matter of evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merit."

12. In AIR 1996 Madras 411 Shanmugam Servai v. P.

Periyakaruppan Servai the court laid down the legal requirements of

review under CPC which is as under:-

"..............I am firm in saying that such discovery of new evidence must contain (i) the relevancy of the same and (ii) be of such a character that, if it had been given in the suit it might possibly have altered the judgment. It must atleast be such as presumably to be believed and if so, it would be conclusive. The discovery afore-stated is not only a discovery of new and important materials or evidence : that would entitle a party to apply for, review, but the discovery of any new material or evidence and

important matter must be one of which was not within the knowledge of the party then the decree was made the person seeking the review should prove strictly the diligence as clearly spelt out in the above rule which he claims to have exercised and also that the matter or evidence which he wishes to have access to is, if not absolutely conclusive, at any rate, nearly conclusive. What has become more imperative is that a mere and bare assertion in the affidavit that the party could not trace the documents earlier or he was not in possession not in custody of said documents is not a ground at all to seek legal aid provided under the above rule. It is not the proper function of a review application to supplement the evidence or to make it serve the purpose of merely introducing evidence which might possibly have had same effect upon the result.

13. By order dated 11th February, 2008, the application of

respondent No.1 under Section 17 (B) of Industrial Disputes Act of 1947

dated 5th December, 2005 was disposed of. The petitioner/applicant

had filed a reply dated 26th April, 2007. If according to alleged

investigating agency report, respondent No.1 was employed for last 6

years, the applicant should have made efforts or taken steps to

ascertain by employing the said investigating agency earlier before filing

the reply dated 26th April, 2007 to the application of respondent under

Section 17 (B) of the Industrial Disputes Act, 1947 was filed. Why the

alleged investigation was not done earlier has not been divulged or

disclosed? No grounds have been disclosed by the petitioner/applicant

as to why no investigating agency was employed or some other mode

was employed to collect the alleged evidence regarding alleged

employment of respondent No.1 with M/s Auto Sunlight. In the

circumstances the applicant has not disclosed or even averred about

any due diligence on his part. . In the circumstances, the applicant has

not made out a good ground for review of order dated 11th February,

2008 on the basis of alleged subsequent evidence which is an alleged

report of the investigating agency.

14. Even if the alleged report dated 26th April, 2008 of the

investigating agency is considered, it also does not disclose any such

facts on the basis of which any inference as has been sought to be

drawn by the applicant can be drawn. The report does not disclose the

basis to infer that the applicant is employed as supervisor/office in

charge with M/s Auto Sun Light. The Compact Disc allegedly showing

respondent No.1 working at the factory also does not reveal such scene

on the basis of which it can be inferred that respondent No.1 is working

with M/s Auto Sun Light.

15. The Compact Disc has been perused by this Court and on

the basis of any of the scenes, it cannot be inferred even prima facie

that respondent No.1 is working with M/s Auto Sun Light. The

transcript of the audio of the Compact Disc has not been filed.

Whatsoever is decipherable from it, this cannot be inferred that

respondent No.1 is employed with M/s Auto Sun Light. The report of

the investigating agency and alleged findings are as under;-

Our successful surveillance of the person from the Court could house him at 1018/67, Seva Ram Park, Tri Nagar, N.Delhi and the person, henceforth be referred to as the subject, was found to be one Ajay Kumar Singh. He is learnt to be staying with his brother-in-law Mukesh (M-9350442719).

To find out his place of working, the subject was again followed from his residence and it was confirmed that he had been working at 'Auto Sunlight', C-126, First Floor, Gate No.3, Phase-I, Naraina, New Delhi as Supervisor/Office-in-Charge for the last 6 years at the monthly salary Rs.4000/-.

Our enquiries could further find out that 'Auto Sunlight' is owned by one Bablu (M-9811252802) and it is managed by one Vijay as Manager. In all, there are 9 persons including 3 ladies working in his factory. The factory deals in spray painting of wheel covers of Cars.

As regards any proof of his gainful employment, a CD showing the subject at work in the factory is being enclosed. The above mentioned report is true to the best of our investigators' knowledge & belief and we wish you good luck for your further proceedings.

16. From the above report, and the Compact Disc, the

inferences regarding the alleged employment of respondent No.1 cannot

be drawn and in absence of any cogent prima facie evidence regarding

the employment of respondent No.1, the order passed by this Court

under Section 17 (B) of the Industrial Disputes Act, 1947 dated 11th

February, 2008, whereby the petitioner/applicant was directed to pay

wages equivalent to last paid wages or minimum wages whichever is

higher from the date of award dated 23rd May, 2002 within 8 weeks and

continue to pay wages on the last paid wages or minimum wages can be

reviewed or modified. Despite there being no stay of the order dated 11th

February, 2008, no amount has been paid by the petitioner/applicant

nor any cogent reason has been disclosed. In the circumstances, the