Brahm Singh vs Management, M/S The Hindustan ...
2018 Latest Caselaw 3786 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+      REV.P. No.291/2015 in W.P.(C) 2758/2013

       BRAHM SINGH                                                   ..... Petitioner
                               Through:       Mr.Sudhir Sharma, Advocate
                                              (DHLSC) with Petitioner in
                                              person

                                         versus

       MANAGEMENT,
       M/S THE HINDUSTAN TIMES LTD. & ANR.         ..... Respondents
                     Through: Mr.Raj Birbal, Sr.Advocate
                              with Ms.Raavi Birbal,
                              Ms.Meghna Mishra, Mr.Ankit
                              Rajgarhia & Ms.Riya Singh,
                              Advocates

CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI

                               ORDER

% 09.07.2018

1. The petitioner has filed this application seeking review of the order dated 13th February, 2015, whereby the writ petition has been disposed of in terms of the Memorandum of Settlement dated 22nd January, 2015.

2. The grievance of the petitioner is that under the terms of the settlement, the respondent/management was required to pay him `7 lakhs at two stages i.e. `2 lakhs on the date of signing the settlement and `5 lakhs before the Court. However, he has been paid

only `2 lakhs and as the application under Order XXIII Rule 3 Code of Civil Procedure has not been signed by him or supported with his affidavit, the writ petition could not have been disposed of on the basis of the settlement [Annexure-A].

3. The matter has been passed over twice as learned counsel for the petitioner was not available. On the third call, learned counsel for the petitioner has appeared and made submissions. However, when this Court is about to dictate the order, he requests that the matter may be posted for the post-lunch session to enable him to make further submissions.

4. At his request, put up at 2:15 PM for further arguments.

PRATIBHA RANI, J.

JULY 09, 2018
„hkaur‟

At 2:15 PM
Present:       As above.


REV.P. No.291/2015 in W.P.(C) 2758/2013

1. An Industrial Dispute [ID No.23/2005] raised by the workmen, whose services were terminated by the management on 3rd October, 2004, against the respondents Hindustan Times Limited (respondent No.1) and Hindustan Times Media Limited (respondent No.2) was referred to the Industrial Tribunal with the following terms of reference:

"Whether the action of management of M/s Hindustan Times Ltd. in transferring the ownership of its Printing undertaking to M/s H.T. Media Ltd. w.e.f. 02.10.04 and terminating the services of workmen whose names are given in Annexure A by invoking the provisions of Section 25FF of Industrial Disputes Act 1947 is illegal and/or unjustified and if so, to what relief are the workmen entitled and what directions are necessary in this respect?

2. Learned Industrial Tribunal in its award dated 23 rd January, 2012 directed the management of M/s Hindustan Times Ltd. "to re-instate 272 workmen treating them in continuity of service under terms and conditions of service as before their alleged termination i.e. 03.10.04."

3. The petitioner Brahm Singh, who was one of the claimant/workman before the Industrial Tribunal, invoked the writ jurisdiction of this court by filing W.P.(C) 2758/2013 with the following prayer:

(a) Allow present petition by issuing an appropriate writ/order/directions thereby modifying impugned award dt.23.01.2012 in I.D.No.207/10/05 in Ref:F.24(188)/05/Lab.983-87 dt.02.02.2005, passed by Sh.Mahavir Singhal, POIT, Karkardooma Courts, Delhi, and please to grant full back-wages along with other benefits as this Hon'ble Court may deem fit and proper in the interest of justice including all retiral benefits in addition to the relief already granted;

(b) Pass such other and further orders, as this Hon‟ble Court may deem fit and proper in the facts and circumstances of the present case."

4. During the course of hearing of this petition, on 22nd January, 2015, the petitioner was present in person when learned counsel for respondent No.1 informed the Court about the talks for settlement going on, which fact was duly admitted by the petitioner Brahm Singh. The matter was adjourned to 10th February, 2015.

5. On the next date of hearing when the matter came up for hearing on 10th February, 2015, learned counsel for the petitioner and the respondent No.1 informed the court that the matter has been settled and sought time to file joint application under Order XXIII Rule 3 Code of Civil Procedure and the matter was adjourned to 9th March, 2015. Thereafter, CM No.2587/2015 under Order XXIII Rule 3 CPC was filed by the parties, which was taken up on 13th February, 2015.

6. On 13th February, 2015, this Court allowed the application and the writ petition was disposed of on the basis of the settlement between the parties mentioned in the application under Order XXIII Rule 3 CPC and the Memorandum of Settlement [Annexure -A]. The next date of hearing i.e. 9th March, 2015 was cancelled.

7. Thereafter the petitioner Brahm Singh filed a Review Petition seeking review of the order dated 13th February, 2015. Learned counsel for the petitioner has submitted that the order dated 13th February, 2015 may be reviewed by this court for the reason that the settlement agreement was for a sum of `7 lakhs. Out of the settled amount of `7 lakhs he was paid only `2 lakhs on 21st January, 2015 and balance of `5 lakhs was to be paid in the Court on 10th February, 2015. The application under Order XXIII Rule 3 CPC was not

supported with the affidavit of the petitioner. The petitioner was not in contact with his counsel during that time. Hence, the Management be directed to stick to the agreement to pay `7 lakhs after adjusting `2 lakhs, already paid by him.

8. Mr.Sudhir Sharma, learned counsel for the petitioner has submitted that the order dated 29th August, 2017, has been complied with by the petitioner and he has deposited with the Registrar General an amount of `2 lakhs, received by him vide cheque No.015034, dated 22nd January, 2015, drawn on Kotak Mahindra Bank.

9. Mr.Raj Birbal, Sr.Advocate and Ms.Raavi Birbal, Advocate have submitted that the petitioner has not been able to point out any error apparent on the face of the record so as to seek review of the order dated 13th February, 2015. It has been further submitted that the memorandum of settlement as well the receipt of full and final payment have been signed by the petitioner in English. Both these documents record the settlement amount to be `2 lakhs. As he has served Delhi Police as Constable for a long time, plea of illiteracy is not available to him especially when his testimonials prove otherwise. A copy of the Identity Card of the petitioner [Page No.317] reveals that he has retired from Delhi Police and at the time of retirement he was posted in Crime and Railways. Learned counsel for the petitioner has drawn the attention of this court to the Memorandum of Settlement [Annexure-A] which has been signed by him on each page in the presence of his counsel who is a witness to the settlement.

10. Learned counsel for the petitioner further submits that had there been any discrepancy in the terms of settlement duly reduced into

writing under the Memorandum of Settlement or the petitioner being misled by his counsel about the amount payable under the Memorandum of Settlement, he would have made complaint against his counsel before the Bar Council, which has not been done by him.

11. With a view to appreciate as to whether there is an error apparent on the face of record, it is necessary to refer to the terms and conditions of the settlement as recorded in the Memorandum of Settlement dated 22nd January, 2015, which is signed by the petitioner on each page and witnessed by his own counsel, Mr.H.K.Chaturvedi. The Memorandum of Settlement incorporates the following terms of settlement:

1. It has been agreed between the Parties i.e. Mr.Brahm Singh, the workman and Hindustan Times Ltd. and its officials / subsidiary/s, whether impleaded as party to any of the disputes mentioned hereof or not, the Management, M/s Hindustan Times as a special case and without creating any precedent, has paid an ex- gratia of `200000 (Two lacs only) to the workman Mr.Brahm Singh towards the full and final settlement of all his claims / disputes / demands arising of the matters mentioned hereof including the claim of reinstatement, re-employment, back wages, earned wages, medical allowance, LTA, Notice pay, Leave Encashment, Compensation, Bonus, gratuity, provident fund and any other statutory dues, if any.

2. Further upon receipt of above sums by virtue of present memorandum of settlement, all dispute/ claim/ grievance of the workman against the management before any court of law / forum including but not limited to all his claims arising out of or in connection with the reference as referred herein above and/or in relation to Award dated 23.01.2012 and/or Execution Proceedings

No.3/2012 and/or C.M.(Main) 368/2013 and/or W.P.(C) 1000/2013 and/or W.P.(C) 2758/2013 and/or LPA 6/2015 and under any Labour laws, whether it is Payment of Bonus Act, Payment of Gratuity Act, Employee Provident Fund Act, Workman Compensation Act, Industrial Dispute Act or any other allied Act etc. stands settled and satisfied.

3. That the workman in view of this present settlement has agreed that after receipt of cheque bearing no.015034 dated 22.01.2015 for `Two lacs only, all his claims shall stand settled as full and finally and the workman shall not press the following matters and withdraw the following matters:

(i) Execution Proceedings No.3/2012 pending before the Ld.Execution Court;

(ii) W.P.(C) 2758/2013 pending before Hon‟ble Delhi High Court and

(iii) LPA 6/2015 pending before division bench of Hon‟ble Delhi High Court.

(iv) C.M.(Main) 368/2013 pending before the Hon‟ble Delhi High Court.

4. The workman shall hereinafter not raise any dispute before any forum under any law including labour laws as already enumerated above that is Payment of Bonus Act, Payment of Gratuity Act, Employee Provident Fund Act, Workman Compensation Act, Industrial Dispute Act or any other allied Act Etc.

5. That the payment of the agreed amount of `2,00,000/- (Rupees Two Lakh only) towards compensation (Ex.Gratia lump sum) is being made to the workman by the management before his Advocate, Sh.H.K.Chaturvedi on 22.01.2015 by cheque no.015034, drawn on Kotak Mahindra Bank, K.G. Marg, New Delhi-110001. The Cheque bearing no.015034 dated 22.01.2015 for a sum of `2,00,000/- (Rupees Two Lacs Only) is enclosed herewith as

Annexure-A.

6. That in view of the above mentioned settlement the workman has no disputes/demands/claims of any kind whatsoever including but not limited to reinstatement with and/or without full back wages remaining against the management and both the parties will be strictly bound with the settlement.

7. That a copy of this memorandum of settlement shall be filed on the records of Ld.Execution Court, ADJ, Delhi in Execution No.3/2012, Single judge of Hon'ble Delhi High Court in W.P.2758/2013, Division bench of Hon‟ble Delhi High Court in LPA 6/2015, Single Judge of Hon‟ble Delhi High Court in C.M.(Main) 368/2013. Further, the workman shall have no objection if the management submits copy of settlement before any forum under the labour laws/any other law so that the dispute/case is closed and award is passed accordingly.

8. The parties hereto confirm and declare that they have been voluntarily and of their own free, without being any pressure, coercion or threat or undue influence of any kind have arrived at this Settlement Agreement in the presence of witnesses.

9. Both the parties have signed on this Memorandum of Settlement after fully accepting the above terms and conditions in presence of the following witnesses, who have also signed in presence of parties and undertakes to remain bound by the above referred terms and conditions without any dispute or demur in further.

10. It is expressly agreed between the Parties that besides the disputes mentioned hereof no other case, claim or dispute is pending between them. In case any case is subsequently found pending, the same shall be withdrawn by them in view of the present settlement."

[Emphasis added]

12. The receipt executed by the petitioner and referred to in Clause 5 of the Memorandum of Settlement is to the following effect:

"Receipt I, Braham Singh employee Code no.7028 have received a sum of `2,00,000/- (Rupees Two Lacs only) through a cheque bearing no.015034 dated 22.01.2015 as full and final settlement towards my all claims against the management arising out of award ID No.207/10/05 dated 23.01.2012.

(Brahm Singh) Employee Code No.7028"

[Emphasis added]

13. The petitioner has not disputed his signature either on the Memorandum of Settlement or on the receipt of full and final settlement and the cheque of `2 lakhs was also encashed by him.

14. The W.P.(C) 2758/2013 has been filed by the petitioner through Sh.H.K.Chaturvedi and Ms.Anjali Chaturvedi in the month of April, 2013. Each page of the Memorandum of Settlement [Annexure-A] between Mr.Brahm Singh and M/s Hindustan Times Ltd. is signed by the petitioner and by Mr.Avik Basu, Assistant Vice-President, Human Resource on behalf of M/s Hindustan Times Ltd. This settlement dated 22nd January, 2015 is witnessed by Mr.H.K.Chaturvedi, Advocate representing the petitioner and by Mr.Arun Pathak, Advocate. The petitioner neither disputes his signature on the Memorandum of Settlement nor denies the receipt of cheque of `2 lakhs for which he had executed a receipt. Not only in the Memorandum of Settlement but also in the receipt there is a recital that payment of Rs.2 lakhs to the petitioner Brahm Singh towards

compensation ex-gratia lump sum was towards full and final settlement of all his claims.

15. The contentions raised on behalf of the petitioner that he is an illiterate person and that he signed the Memorandum of Settlement without understanding its contents, is not borne out from the record. The settlement has been signed by him in English witnessed by his counsel Mr.H.K.Chaturvedi. No complaint has been made by him against his counsel till date before Bar Council. The petitioner, who has served Delhi Police as Constable and has also studied in Inter-mediate College, Sarurpur Kalan, Meerut, cannot take the plea of illiteracy in the Review application. The receipt which running into five lines, clearly records that the payment of `2 lakhs was in full and final settlement of his claims. The petitioner cannot seek review of the order dated 13th February, 2015 on the oral plea that the sum agreed to be paid to him was `7 lakhs especially when the Memorandum of Settlement and receipt do not have any over writing or interpolation.

16. In the review petition the petitioner has claimed that he was not in contact with his counsel Mr.H.K.Chaturvedi on 13th February, 2015, when the writ petition was disposed of in terms of the settlement which is contrary to record as Mr.H.K.Chaturvedi, Advocate has not only filed this writ petition but had also been appearing for him regularly. Even on 10th February, 2015 Mr.H.K.Chaturvedi informed the court about the matter being settled as he was also signatory to the Memorandum of Settlement dated 22nd January, 2015. The management has been given right to place the settlement before

the court. The application under Order XXIII Rule 3 CPC has been duly signed by Mr.H.K.Chaturvedi, Advocate who was counsel for the petitioner and witness to the Settlement. For the respondent also application has been signed by his counsel. Hence the petitioner cannot seek review of the order merely on the ground that the application is not supported by his affidavit.

17. No doubt the power of review is inherent in the High Court to review its own order passed in the writ jurisdiction, the same has to be exercised on well recognized and established grounds on which judicial orders are reviewed. Review can be sought when the order discloses some error apparent on the face of the record or on grounds analogous thereto. The term 'mistake or error apparent' signifies an error which is evident per se from the record of the case and does not require detailed examination either on the facts or the legal position. If the error is not self evident and detection thereof requires process of reasoning, it cannot be treated as an error apparent on the face of record for the purpose of Order XLVII Rule 1 CPC.

18. The writ petition has been disposed of in terms of the settlement, contents of which reveal that all the claims of the petitioner were settled on payment of Rs.2 lakhs, duly paid to him through cheque against receipt. The petitioner cannot seek review claiming that the amount payable under the Settlement was `7 lakhs whereas the Memorandum of Settlement records it as `2 lakhs.

19. As there is neither any error apparent on the face of record nor any sufficient reason, the review petition is dismissed.

20. The amount of `2 lakhs received by the petitioner under Memorandum of Settlement has been deposited by him in compliance of the order dated 1st November, 2017. The petitioner is at liberty to withdraw the said amount from the Registry.

PRATIBHA RANI, J.

JULY 09, 2018 „hkaur‟