M/S. Paradeep Phosphates Ltd vs Presiding Officer
2022 Latest Caselaw 7433 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                    I.A. No.16541 of 2022

           [Arising out of WP(C) No.32412 of 2021]


M/s. Paradeep Phosphates Ltd.           ....              Petitioner

                             -versus-

Presiding Officer, Labour Court,        ....        Opposite Parties
Bhubaneswar and another

Advocates appeared in this case :

For Petitioner :        Mr. Narendra Kishore Mishra, Sr. Advocate
                        Mr. N. K. Mishra, Advocate
                        Mr. A. K. Roy, Advocate
                        Mr. A. Mishra, Advocate

For Opposite Parties : Mr. Shankar Das (O.P. no.2 in person)


CORAM:

JUSTICE ARINDAM SINHA
JUSTICE SANJAY KUMAR MISHRA

                     JUDGMENT

15.12.2022

ARINDAM SINHA, J.

1. Mr. Mishra, learned senior advocate appears on behalf of

applicant-management, who was writ petitioner. He submits, the writ

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petition was disposed of by judgment dated 17th November, 2022. The

application carries prayer for recalling the judgment and for the

matter to be heard afresh by another Division Bench, where one of us

(Mr. S. K. Mishra, J.), is not a party.

2. He draws attention to disclosure in the application, being an

affidavit. He points out, the deponent is none other than opposite

party no.2 in the writ petition. The deponent was identified in the

affidavit by Mishra, J. In the circumstances, the prayer.

3. The workman appears in person. We have not required him to

answer.

4. It has been said in the application, inter alia, Mishra, J. while

at the Bar had conducted I.D. Case no.16 of 2003 on behalf of

Paradeep Phosphates Employees' Union and had identified said

opposite party as workman witness no.3 (WW3), deponent of the

affidavit. It has also been said that at the hearing of the writ petition,

particularly on 17th November, 2022, the workman appeared in

person. When the matter was taken up for the first time by this Bench,

Mishra, J. should have recused himself from hearing the writ petition

being otherwise concerned with opposite party no.2, appearing in

I.A. No.16541 of 2022

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person. However, the Bench not only heard the case as the only

matter on that day but also perhaps inadvertently, passed judgment.

5. Perused the affidavit in context of aforesaid. It appears,

Mishra, J., while at the Bar was representing Paradeep Phosphates

Employees' Union. The evidence on affidavit says that the deponent

was working as Junior Accountant in the Finance and Accounts

Department of the company. There is no mention that he was an

office bearer of the Union. It also appears from the affidavit,

identification made of the deponent was on 23rd October, 2009.

Applicant has brought this to our notice after we heard and dealt with

the writ petition on 17th November, 2022.

6. We have looked at the order-sheet in the writ petition and

find, this Bench heard it on two days. First was on 27th October, 2022.

We reproduce text of our order made that day.

"1. Mr. Mishra, learned senior advocate appears on behalf of petitioner and submits, the writ petition be listed on 15th November, 2022. Opposite party no.2 appears in person and submits, several adjournments were obtained earlier. On query from Court he submits, the matter be taken up on any date fixed.

2. List on 15th November, 2022, marked at 10.30 A.M.

I.A. No.16541 of 2022

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3. Interim order to continue till next date."

Though there was direction for listing on 15th November, 2022,

marked at 10:30 A.M. but the writ petition could only be taken up on

17th November, 2022. It is obvious that applicant did not think fit to

make inquiry, in that period, regarding whether one of us was

acquainted with opposite party no.2.

7. We are sure in our minds that there was no recollection of this

obscure act of one of us, while carrying on the profession and in the

usual course of things, more than thirteen years ago, in having

identified said opposite party as a witness of the Union, when we

heard and disposed of the writ petition. Priority was given because a

litigant was appearing in person and had submitted on 27th October,

2022 that several adjournments had been obtained earlier.

8. Notwithstanding above, we looked for and found guidance

regarding recusal from judgment of the Supreme Court in Supreme

Court Advocates-on-record Assn. v. Union of India (Recusal

Matter), reported in (2016) 5 SCC 808. One of the learned Judge's

view was unanimous, the other learned Judges in the Bench having

I.A. No.16541 of 2022

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agreed therewith. We extract and reproduce paragraph 25 from the

view.

"25. From the above decisions, in our opinion, the following principles emerge:

25.1. If a Judge has a financial interest in the outcome of a case, he is automatically disqualified from hearing the case.

25.2. In cases where the interest of the Judge in the case is other than financial, then the disqualification is not automatic but an enquiry is required whether the existence of such an interest disqualifies the Judge tested in the light of either on the principle of "real danger" or "reasonable apprehension" of bias.

25.3. The Pinochet case added a new category i.e. that the Judge is automatically disqualified from hearing a case where the Judge is interested in a cause which is being promoted by one of the parties to the case."

No question has been raised or arises of Mishra, J. having financial

interest in the outcome of the case, for his automatic disqualification.

We have scrupulously enquired, pursuant to the application having

been moved, on whether applicant has made out a case on principles

of "real danger" or "reasonable apprehension" of bias. There could

not be real danger of bias in perception of applicant simply because

I.A. No.16541 of 2022

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had it been so, same would have kept applicant alert and upon

noticing constitution of the Bench, caused immediate awareness to

orally mention for release. The application is dated 1st December,

2022 seeking recall, on the ground urged, of judgment dated 17th

November, 2022. Reasonable apprehension cannot also be said to

have been there since, apprehension cannot be an afterthought..

Lastly, it cannot be said, opposite party, in contesting the writ

petition, was promoting a cause, in which Mishra, J. was or is

interested. In the circumstances, the application having been made to

the Court and to be dealt with by the Bench, we find the contention

for recusal, without merit.

9. Review is possible in law on discovery of new and important

matter or evidence, which after exercise of due diligence, was not

within knowledge of applicant or could not be produced by him, at

the time when the order was made. It is also possible on account of

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

sufficient reason. Here, the affidavit dated 23rd October, 2009 has

been produced, as discovered to be new and important matter or

evidence, obviously in context of hearing and adjudication of the writ

I.A. No.16541 of 2022

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petition. As aforesaid, deponent of the affidavit was not an office

bearer of the Union, the latter who was client of one of us when at the

Bar. Contents of the affidavit are in no way related to or connected

with the writ petition of applicant. Mistake or error on face of the

record has not been urged and in view of preceding paragraphs 5 to 8,

we do not find sufficient reason to review our judgment dated 17th

November, 2022.

10. There is no link for us to take cognizance of contention in the

application and feel that we ought not to have heard or decided

challenge in the writ petition.

11. The application is dismissed.

( Arindam Sinha ) Judge

( S. K. Mishra ) Judge

P.K. Sahoo

I.A. No.16541 of 2022