Full Text
HIGH COURT OF DELHI
Date of order: 12th July, 2024
AJAI KUMAR & ORS .....Petitioners
Through: Mr.Piyush Sharma, Mr.Shivam Dubey, Mr.Anuj Kumar Sharma, Mr.Shivesh Kumar Srivastava and
Ms.Sakshi Raghav, Advocates
Through: Mr.Jitesh Pandey, Mr.Akarsh Bhalla, Mr.Pankaj Anil Arora, Mr.Hrishabh
Tiwari and Mr.Harsh Sharma, Advocates for R-1
Mr.Ateev Mathur & Mr.Amol Sharma, Advocates for R-2
CHANDRA DHARI SINGH, J (Oral)
ORDER
1. The instant review petition under Section 114 of the Code of Civil Procedure, 1908 (hereinafter “CPC”) has been filed on behalf of the petitioners seeking the following reliefs:- “a) Allow the present review petition and review the order dated order dated 19.03.2024 passed by this Hon'ble Court in W.P. (C) No. 3455/2018 titled as Ajai Kumar & Ors. vs. Sumitomo Mitsui Banking Corporation & Anr. in view of the facts stated hereinabove from paragraph 2-a) to d) and recall its order and decide the writ petition on various submissions raised by the Petitioners. b) Pass such order / further orders as this Hon'ble Court may deem just fit and proper and. c) Any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case.”
2. Learned counsel appearing on behalf of the petitioners submitted that by way of the instant review petition, they are challenging the impugned judgment dated 19th March, 2024 by virtue of which the petitioners’ writ petition was dismissed.
3. It is submitted that a writ petition was filed seeking setting aside of the award dated 10th February, 2017 passed in ID No. 159/2011, by the learned CGIT, New Delhi wherein the learned CGIT had dismissed the petitioners’ claim which was filed against the discrepancy in the benefits provided to the employees in Delhi and Mumbai branches of the respondent bank. It is further submitted that the petitioners’ claim was dismissed by the learned CGIT on the ground that the same was not espoused by a Union as mandated under Section 10 of the Industrial Disputes Act, 1947 (hereinafter “the Act”).
4. It is submitted that the plea of non-espousal was not raised by the respondent management before the authorities during the conciliation proceedings, therefore, it cannot be raised at a later stage during the adjudication before the learned CGIT.
5. It is submitted that the plea of espousal was not even taken in the written statement as well as in the affidavit filed by the management and therefore, the said plea cannot be taken by the respondent management during the cross-examination as well as at the time of final hearing.
6. It is submitted that eight workmen raised the industrial dispute through a union and the total number of workmen as per the management is about 18 and therefore, even if it is held that there is no espousal by the union, the number of workmen constitute majority of the workmen and thus, they can raise the industrial dispute.
7. It is submitted that the dispute raised before the learned CGIT is a dispute concerning each and every workmen working in the Delhi Branch of the respondent management and therefore, it is not an individual dispute and the finding in this regard with respect to the espousal by the learned CGIT is totally erroneous and is liable to be set aside.
8. It is submitted that the aforesaid submissions have not been considered by this Court while passing the impugned judgment and therefore, the impugned judgment is liable to be reviewed.
9. Therefore, in view of the foregoing submissions, it is submitted that the instant petition may be allowed and the reliefs, as prayed for, may be granted.
10. Per Contra, the learned counsel appearing on behalf of the respondents vehemently opposed the instant petition submitting to the effect that the same is liable to be dismissed, being devoid of any merits.
11. It is submitted that the impugned judgment dated 19th March, 2024 was delivered after thorough consideration of all submissions, arguments, and contentions raised by all the parties, including the petitioners and this Court had meticulously dealt with each and every argument, and after considering the same, found no merit in the claims as raised by the petitioners. Thus, there is no ground for review based on the alleged nonconsideration of their submissions.
12. It is submitted that the scope of review has been circumscribed by Section 114 of the CPC which provides that a review of an order is permissible upon the discovery of new and important matter of evidence. In the present case, nothing new has been brought before this Court by the petitioners.
13. It is submitted that the averments made in para (a) to (e) of the review petition are wrong, misconceived and denied. It is denied that the issue of espousal was not raised during the proceedings before the learned CGIT.
14. It is submitted that on 20th January, 2018, the learned CGIT framed the issue „whether there is industrial dispute between the 'management and the workman in view of section 2(k) of the ID Act, 1947.’ It is further submitted that the said issue was framed on the objection of nonmaintainability of the industrial dispute as not properly been espoused by the union. After consideration of submission of parties and evidence on record including the cross examination of the petitioner, the learned CGIT decided that the present dispute is not maintainable.
15. It is also submitted that it is a well settled position in law that only errors apparent on the face of the record are liable to be reviewed and such errors must state one in the face where no elaborate arguments are necessary to pinpoint those errors. It is further submitted that the petitioners have failed to put forth any such errors warranting review of the said impugned judgment by this Court and thus, the present petition is liable to be dismissed.
16. Therefore, in view of the foregoing submissions, it is submitted that the instant petition may be dismissed.
17. Heard the learned counsel appearing on behalf of the parties and perused the material on record.
18. It is a well settled principle of law that the power of review is exercised in cases where there is an error apparent on the face of the record and in such an event the order or judgment can be corrected. A Court cannot act as an appellate Court for its own judgments, nor can it allow the petitions for review based only on the claim that one of the parties believes the judgment proven bane for them. If the matters that the Court has already adjudicated upon could be reopened and reheard, the same would be detrimental to the public interest. In Kamlesh Verma v. Mayawati, (2013) 8 SCC 320, the Hon’ble Supreme Court carved out the essential principles qua review and held as under: “…14. Review of the earlier order cannot be done unless the court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. This Court in Col. Avtar Singh Sekhon v. Union of India [1980 Supp SCC 562: 1981 SCC (L&S) 381] held as under: (SCC p. 566, para 12) “12. A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. In Sow Chandra Kante v. Sk. Habib [(1975) 1 SCC 674: 1975 SCC (Cri) 305: 1975 SCC (L&S) 184: 1975 SCC (Tax) 200] this Court observed: (SCC p. 675, para 1) „1. … A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. … The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality.‟”
15. 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. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. This Court in Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715] held as under: (SCC pp. 718-19, paras 7-9) “7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. [AIR 1964 SC 1372] this Court opined: (AIR p. 1377, para 11) „11. What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an “error apparent on the face of the record”. The fact that on the earlier occasion the court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an “error apparent on the face of the record”, for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by “error apparent”. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.‟
8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury [(1995) 1 SCC 170] while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma [(1979) 4 SCC 389] this Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.
9. 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‟.” (emphasis in original)
19. Upon perusal of the above cited paragraphs, it is crystal clear that while dealing with the issue of review of their own judgment, the Court cannot set aside the same until and unless there is an error apparent on the face of record.
20. Now adverting to the merits of the instant review petition.
21. Upon perusal of the impugned judgment, it is made out that this Court had initially discussed upon the learned CGIT’s observation made qua the issue of maintainability due to lack of proper espousal of the workmen’s dispute by a union and how the industrial dispute raised by the workmen is not maintainable. Further, this Court had taken into consideration the fact that the learned CGIT did not delve into the merits of the industrial dispute, rather, limited the adjudication to the maintainability aspect.
22. This Court has considered the entire contents of the impugned judgment and upon perusal of the same, it is revealed that the issue of espousal was duly considered therein by properly analyzing the award impugned in the writ petition and referred to the judgments of the Hon’ble Supreme Court as well, and thus, settled position of law qua the principle of espousal in terms of Section 2 (k) of the Act.
23. It has been contended by the petitioners that the plea of non-espousal was not raised by the respondent management before the authorities during the conciliation proceedings, therefore, it cannot be raised at a later stage during the adjudication before the learned CGIT. However, it is pertinent to mention herein that the learned CGIT had framed the issue of maintainability on 20th January, 2018 and therefore, it cannot be stated that the petitioners were not aware of the said issue which was adjudicated after providing sufficient opportunities to both the parties to lead their evidence.
24. This Court is of the view that in terms of the law laid down by the Hon’ble Supreme Court, an error alleged by the review petitioner must be such which is apparent on the face of the record and not an error which has to be fished out.
25. In simpliciter terms, the said error must be an error of inadvertence as the power of review can be exercised for correction of a mistake but not to substitute a view already taken to conclude the case. Further, the mere possibility of two views on the subject is not a ground for review.
26. With regard to the facts of the instant review petition, it is observed that the same is an appeal in the garb of a review petition. The petitioners have put forth various contents and the same clearly seem to be grounds for appeal. Since no new evidence has been placed on record by the petitioners to support their arguments, the same cannot be dealt with under Section 114 of the CPC due to the limited scope of intervention.
27. It is held that the entire facts of the present dispute have been taken into consideration in the impugned judgment and the law has also been appreciated rightly. The petitioners cannot be permitted to dispute the findings of the impugned judgment just because they are dissatisfied with the reasoning provided therein. The petitioners have failed to make out a case for review and therefore, the instant review petition is liable to be dismissed.
28. In view of the aforesaid discussions on facts as well as law, the impugned judgment dated 19th March, 2024 passed in W.P (C) NO. 3455/2018 is upheld.
29. Accordingly, the instant review petition stands dismissed. Pending applications, if any, also stand dismissed.
30. The order be uploaded on the website forthwith.