1. Challenge is laid in both writ petitions to the orders passed by the Deputy Labour Commissioner under Section 6-H(1) of the U.P. Industrial Disputes Act, 1947, dated 6.6.2016, whereby the authority concerned has reviewed its previous orders passed in the matter on 1st October, 2015.
2. A perusal of the record goes to show that an industrial dispute was raised at the instance of the respondent workmen, which came to be registered as Adjudication Case No.99 of 1982. Proceedings for recovery under Section 6-H(2) were also initiated in Misc. Case No.30 of 1984, and both matters came to be decided finally by the Labour Court on 30th September, 1985. It gave rise to filing of Writ Petition Nos.3982 of 1986 and 3983 of 1986. The writ petitions were disposed of by this Court on 5th February, 2009. It appears that modification applications were thereafter filed being Application Nos.97252 of 2009 and 97253 of 2009, both of which came to be disposed of by this Court on 15th January, 2013. Operative portion of the order dated 15.1.2013 reads as under:-
"Accordingly, as the petitioners had been reinstated hence order dated 5.2.2009 is modified. There is no question of granting back wages. However, as petitioners were taken back in service and continued to work for 22 years till the closure of the mill hence there is no question of disturbing the reinstatement order passed through impugned award. Accordingly, it is directed that since the date of reinstatement which according to workmen was 17.11.1985 the workmen shall be paid such amounts which were paid to other similarly situate employees of the same Mill as retaining allowance and bonus. If other employees of the mill in question have been offered or are offered benefit of V.R.S. scheme the same benefit may be extended to the workmen in this writ petition who have not yet crossed the age of retirement.
Direction for payment of Rs.35,000/- to each workman is recalled.
Modification applications are disposed of. Judgement and orders dated 5.2.2009 are modified accordingly."
3. It appears that while the issue relating to the award as well as proceedings upon modification were pending, the sugar factory, which initially belonged to U.P. State Sugar and Cane Development Corporation, came to be transferred pursuant to a slump sale agreement in favour of respondent no.2 i.e. M/s Dynamics Sugar Private Ltd. The respondent no.2 accordingly moved an application and sought its impleadment in pending proceedings before this Court, which was allowed. The order passed by this Court on 15th January, 2013 has been assailed by respondent no.2 before the Hon'ble Supreme Court by filing Special Leave to Appeal (Civil) CC No.12606 of 2013, in which delay has been condoned on 13th December, 2013, and notices were issued. It is agreed between the parties that the SLP against the order of this Court dated 15th January, 2013 continues to remain pending.
4. It appears that benefit of the order passed by this Court in writ petitions arising out of the award was not extended to the workmen, and as such, an application under Section 6-H(1) of the U.P. Industrial Disputes Act was filed by the workers before the Deputy Labour Commissioner, in which respondent no.2 through its Chief Accountant and Managing Director of the respondent no.2 were impleaded as opposite parties. An objection was raised against the claim of respondent workers by respondent no.2 disputing its liability to pay the amount, as claimed against them in view of the terms of transfer deed. The Deputy Labour Commissioner proceeded to adjudicate the issue, and passed an order on 1.10.2015 holding the respondent no.2 liable for payment of amount due to the workmen under Section 6-H(1) of the Act.
5. Aggrieved by the order of the Deputy Labour Commissioner dated 1.10.2015, respondent no.2 moved an application for review before the same authority on the ground that in terms of provisions of slump sale agreement, respondent no.2 was not liable for payment of dues admissible to the workers. This application has been brought on record of the writ petition no.34041 of 2016 as Annexure-9. The application for review was objected to by the workers on the ground that Deputy Labour Commissioner had no jurisdiction to review his order. It appears that while review application was pending, a direction was issued to implead the present petitioner also as a respondent to the main proceedings under Section 6-H(1). An objection, therefore, was filed by the petitioner specifically challenging the jurisdiction of the authority to entertain a substantive review in the absence of an enabling provision. Reliance was placed upon various orders passed by this Court as well as by the Hon'ble Supreme Court in Kapra Mazdoor Ekta Union Vs. Birla Cotton Spinning and Weaving Mills Ltd. And another, reported in 2005 (13) SCC 777.
6. The Deputy Labour Commissioner after hearing the parties has proceeded to pass the orders impugned, whereby application for review filed by the respondent no.2 has been allowed, and a finding has been returned that in terms of the provisions of slump sale agreement, the liability to pay the dues of the workmen lay with petitioner and not upon respondent no.2. It is these orders passed upon review application, which are assailed in the present writ petition.
7. I have heard Sri S.S. Nigam, learned counsel for the petitioner, learned Standing Counsel appearing for the respondent no.1, Sri S.G. Hasnain, learned Senior Counsel assisted by Sri Syed Mohd. Fazal for the respondent no.2, and Sri A.K. Singh, learned counsel appearing for the respondent nos.3 to 6.
8. The moot question, which arises for consideration of this Court in the present matter, is as to whether the Deputy Labour Commissioner exercising his jurisdiction under Section 6-H(1) of the U.P. Industrial Disputes Act has any power to review his order?
9. Section 6-H(1) of the U.P. Industrial Disputes Act, 1947, reads as under:-
"6H. Recovery of money due from an employer.--(1) Where any money is due to a workman from an employer under the provisions of Sections 6J to 6R under a settlement or award, or under an award given by an adjudicator or the State Industrial Tribunal appointed or constituted under this Act, before the commencement of the Uttar Pradesh Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, the workman may, without prejudice to any other mode of recovery, make an application to the State Government for the recovery of the money due to him, and if the State Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same as if it were an arrear of land revenue."
10. From the nature of proceedings and jurisdiction conferred thereunder, it is not in dispute that the Deputy Labour Commissioner exercises quasi-judicial powers. Learned counsel for the petitioner has submitted that under the provisions of the Act, as well as the Rules, there exists no power of substantive review available to the Deputy Labour Commissioner.
11. Sri Hasnain, learned Senior Counsel appearing for the respondent no.2, although has made various submissions, but attention of the Court has not been drawn to any provision under the U.P. Industrial Disputes Act, 1947 or the Rules framed thereunder, which confers power of substantive review upon the Deputy Labour Commissioner.
12. From the materials, which have been brought on record, this Court finds that the claim as was originally instituted by the respondent workmen under Section 6-H(1) was against respondent no.2. It further appears from the record that an objection was taken by respondent no.2, questioning the claim raised by respondent workmen as against respondent no.2. This issue was considered and has been decided by the Deputy Labour Commissioner, on merits, after hearing the respondent no.2. In its order dated 1st October, 2015, respondent no.2 has categorically held that in terms of the provisions of the agreement, liability to pay the dues of respondent workmen lay upon respondent no.2.
13. In case, respondent no.2 felt aggrieved by the order dated 1st October, 2015, as according to them they were not liable to pay such amount under the agreement, they had the remedy available to assail the order before the appropriate forum, which has not been pursued. In the absence of any enabling provision conferring power of review upon the authority, a review application was not maintainable. The review application filed by the respondent no.2 was not a procedural review, inasmuch as the order dated 1st October, 2015 had been passed after hearing the respondent no.2. In the absence of any power of substantive review available to the Deputy Labour Commissioner, he had no jurisdiction to pass the order upon the review application. Neither the review application was maintainable nor any order upon it would have been passed. The question as to whether in the absence of power of substantive review, a quasi-judicial authority could exercise the power of review has been adjudicated by the Apex Court in Kapra Mazdoor Ekta Union (supra). Para-19 of the judgment reads as under:-
"19. Applying these principles it is apparent that where a Court or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the Court or the quasi judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the Court or quasi judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the Court or quasi judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the Court or the quasi judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be re-heard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra), it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be re-heard and decided again."
14. Per contra, Sri Hasnain, learned Senior Counsel, has relied upon a decision of the Apex Court in Rajendra Singh Vs. Lt. Governor, Andaman and Nicobar Islands and others, reported in 2005 (107) FLR 1069. Paras-11 and 12 of the judgment, which have been relied upon, reads as under:-
"11. We are unable to countenance the argument advanced by learned Additional Solicitor General appearing for the respondents. A careful perusal of the impugned judgment does not deal with and decide many important issues as could be seen from the grounds of review and as raised in the grounds of special leave petition/appeal. The High Court, in our opinion, is not justified in ignoring the materials on record which on proper consideration may justify the claim of the appellant. Learned counsel for the appellant has also explained to this Court as to why the appellant could not place before the Division Bench some of these documents which were not in possession of the appellant at the time of hearing of the case. The High Court, in our opinion, is not correct in overlooking the documents relied on by the appellant and the respondents. In our opinion, review jurisdiction is available in the present case since the impugned judgment is a clear case of an error apparent on the face of the record and non- consideration of relevant documents. The appellant, in our opinion, has got a strong case in their favour and if the claim of the appellant in this appeal is not countenanced, the appellant will suffer immeasurable loss and injury. Law is well-settled that the power of judicial review of its own order by the High Court inheres in every Court of plenary jurisdiction to prevent mis-carriage of justice.
12. The power, in our opinion, extends to correct all errors to prevent miscarriage of justice. The courts should not hesitate to review its own earlier order when there exists an error on the face of the record and the interest of the justice so demands in appropriate cases. The grievance of the appellant is that though several vital issues were raised and documents placed, the High Court has not considered the same in its review jurisdiction. In our opinion, the High Court's order in the revision petition is not correct which really necessitates our interference."
15. The judgment of the Apex Court in Rajendra Singh (supra) was delivered by the Hon'ble Supreme Court in the context of exercise of power by the High Court under Article 226 of the Constitution of India. It is not in dispute that power of review is available to a High Court, and therefore, any observation made in paras-11 and 12 will have to be read in the context of the power, which was being exercised. The observation made in paras-11 and 12, therefore, cannot be pressed into service by the respondents to contend that Deputy Labour Commissioner had an authority to review his order. This Court in a recent decision in M/s. Indo Gulf Industries Ltd. Vs. State of U.P. And others, reported in 2016 (148) FLR 991, has been pleased to scan the law on the issue, and following observations have been made in Paras-24, 25 and 26, which reads as under:-
"24. In Kapra Mazdoor Ekta Union3 the Three Judges of the Supreme Court considered the distinction between the review and the recall applications and held though the Act do not grant any power of review either expressly or by necessary implication but the procedural power belongs to a different category and if the party is able to establish that the procedure followed by the forum is vitiated and therefore, the order requires to the recalled it has ample power to do so.
25. In view of the above discussion, it is crystal clear that the power of substantive review is not exercisable by any court, tribunal or authority unless the same is specifically conferred upon it under the relevant statute whereas the power of procedural review is inherent in every court tribunal or authority and could be exercised even if no such power is given to them under the Act but for the exercise of the same the party applying has to establish that he was not served with the notice or that he was prevent for sufficient good reason from attending the proceedings or that the procedure followed by the forum stood vitiated as it was violative of the principles of natural justice.
26. The legal position summarised above, compels me to hold that though the prescribed authority had no power to review its own decision but had the power to consider the applications for recall of the orders on the limited grounds on which procedural review is permissible. Therefore, ignoring the substantive part of the review and without touching the merits of the orders could have considered the recall applications within the limited scope of violation of principles of natural justice. Thus, it committed material irregularity in rejecting the applications as not maintainable for want of power to review."
16. In view of the discussions aforesaid, this Court has no hesitation to hold that neither the review application filed by the respondent no.2 was maintainable before the Deputy Labour Commissioner nor he had any jurisdiction to review his order passed previously. The orders impugned dated 6.6.2016, consequently, are wholly without jurisdiction, and are set aside. This judgment, however, shall not preclude the respondent no.2 from challenging the order dated 1.10.2015, if they are so advised, in the manner contemplated by law.
17. Subject to the observations made above, the writ petitions stand allowed. No order as to costs.
Order Date :- 3.8.2016 Anil