Full Text
HIGH COURT OF DELHI
Date of Decision: 01.12.2016
FOOD CORPORATION OF INDIA ..... Petitioner
Through Mr. Karunesh Tandon, Advocate
Through Mr.Inderjeet Singh, Advocate for R-2
JUDGMENT
Review Petition No. 92/2016
1. Vide this application u/O XXXXVII r/w Section 114 of the Code of Civil Procedure, the petitioner seeks review of the order dated 22nd July, 2015 vide which the writ petition filed by him challenging the order of the Appellate Tribunal under the Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as the ‘Act’) was dismissed.
2. Before going to the application in hand, it will be in the fitness of things to narrate the circumstances leading to the filing of the present application.
3. The management of Food Corporation of India, New Delhi submitted an appeal under Section 6 of the Act challenging the order dated 05.01.2005 passed by the Certifying Officer and RIC(c), New Delhi issued in the 2016:DHC:7775 application of the FCI Management seeking amendment to existing clauses 1(3), 5, 1 & 2(A) and clause 16 of the Certified Standing Orders. The appeal was dismissed by the Appellate Authority on the ground of limitation by observing that the Certifying Officer passed the order of 05.01.2005. The order was issued/despatched on 25.01.2005 as per the entry in the despatch register. The copy of the order was received by the Management on 28.01.2005. The appeal dated 28.02.2005 was received in the office of CLC(C) on 01.03.2005 as per the stamp of Central Registry of CLC(C) office on the original copy of the memorandum of appeal although the copy of the appeal available in the records of the management shows 28.02.2005 as the date of receipt as per the stamp of Central Registry. It was noted that some mischief had taken place in the Central Registry of CLC(C) office however without going into that aspect, it was observed that 30 days period from the date when the order was sent came to an end on 24.02.2005 as such, the appeal was barred by time. The contention of the appellant that the date on which the copy of the order is sent should be interpreted as the date on which the order came to the knowledge of the appellant did not find favour with the Appellate Authority by observing that there is no scope for such an interpretation in view of the clarity in the Section 6(1), as such, the appeal was rejected.
4. The impugned order was challenged by filing the Writ Petition (C) 1676/2008 for setting aside the impugned order dated 8th October, 2007 passed by the Dy. Chief Labour Commissioner, inter alia, on the ground that the order has been passed on very hyper technical view without appreciating the fact that the appeal was filed within 30 days from the date of receipt of the impugned order dated 5th January, 2005. The petitioner in fact had received the copy of the impugned order dated 5th January, 2005 on 28th January, 2005 and the appeal was filed on 28th February, 2005. Hence, the appeal was preferred within the prescribed period from the date of knowledge of the order. Even if there is delay of 30 days, same can be condoned as provisions of Civil Acts are applicable to Industrial Disputes Act and no separate application was required.
5. Section 6 of the Industrial Employment (Standing Orders) Act, 1946 which was relevant for appreciating the case of the petitioner reads as under:- “6. Appeals.— (1) [Any employer, workmen, trade union or other prescribed representatives of the workmen] aggrieved by the order of the Certifying Officer under sub-section(2) of section 5 may, within [thirty days] from the date on which copies are sent under sub-section (3) of that section, appeal to the appellate authority, and the appellate authority, whose decision shall be final, shall by order in writing confirm the standing orders either in the form certified by the Certifying Officer or after amending the said standing orders by making such modifications thereof or additions thereto as it thinks necessary to render the standing orders certifiable under this Act. (2) The appellate authority shall, within seven days of its order under subsection (1), send copies thereof of the Certifying Officer, to the employer and to the trade union or other prescribed representatives of the workmen, accompanied, unless it has confirmed without amendment the standing orders as certified by the Certifying Officer, by copies of the standing orders as certified by it and authenticated in the prescribed manner.
6. Referring to this Section, it was held that any employer/workman, trade union or prescribed representatives of the workman, aggrieved by the order of the certifying officer, can prefer an appeal to the appellate authority within 30 days from the date on which copies are sent. As such, the period of 30 days is to be counted from the date on which copies are sent. It was observed that the order was issued/dispatched on 25th January, 2005 and even if this date is excluded then the appeal having been filed on 28th February, 2005/1st March, 2005 was barred by time. The appellate authority was not competent to condone the delay in filing the appeal, that being so, no infirmity was found in the impugned order and as such, the writ petition was dismissed.
7. The petitioner seeks review of this order on the ground that a writ can be issued in correcting the error of jurisdiction as and when an inferior court or tribunal acts without jurisdiction and also for an error in the decision or determination itself if there is manifest error apparent on the face of the proceedings. In the instant case, the order dated 5th January, 2005 was dispatched on 25th January, 2005, 26th January, 2005 being Republic day was a National holiday and, therefore, the order could not have been served on the petitioner on 26th January, 2005. These facts were not examined by the Court. Moreover under Article 226 of the Constitution of India, the Court has ample power to correct any error and decision apparent on the face of record and to condone the delay. Reliance in this regard is placed on four judgments of Gujarat High Court rendered in Amitara Industries Ltd. vs. Union of India & Ors. C/SCA/6069/2011; Lathia Industrial Supplies Co. Pvt. Ltd. vs. The Commissioner (Appeal-I), C/SCA/16182/2012; Nelly Garments Pvt. Ltd. vs. Union of India and Ors., C/SCA/14778/2014 and Board of Control for Cricket in India and Anr. vs. Netaji Cricket Club and Ors., (2005) 4 SCC 741.
8. The application is opposed by the contesting respondent, i.e., respondent No. 2. Learned counsel representing respondent No. 2 submitted that there are no grounds for review of the order. As regards invoking writ jurisdiction seeking condonation of delay in filing the petition, it is submitted that neither such plea was taken in the writ petition nor during the course of arguments and, therefore, by way of this review petition, the petitioner cannot be permitted to take a fresh plea. Reference is also made to the order passed by the Division Bench of this Court in appeal preferred by the appellant challenging the order dated 22nd July, 2015 and it was noted that this point was not urged before this Court. The appellant then withdrew the appeal and after seeking liberty, filed the present review application. Reliance is placed on Tamilnadu Terminated Full Time Temporary LIC Employees Association vs. S.K. Roy, The Chairman of Life Insurance Corporatoin of India and Anr., 2016 (150) FLR 924 for urging that review of the impugned order in the instant case is not permissible.
9. I have given my considerable thoughts to the respective submissions of the learned counsel for the parties and have perused the record.
10. Under Order XXXXVII r/w Section 114 of the Code of Civil Procedure, a review will be maintainable on the following grounds:-
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the Petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record and
(iii) Any other sufficient reason.
11. The words "any other sufficient reason" has been interpreted in Chhajju Ram v. Neki, AIR 1922 PC 112 and approved by the Supreme Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius and Ors., (1955) 1 SCR 520, to mean "a reason sufficient on grounds at least analogous to those specified in the rule".
12. As observed in Tamilnadu (supra), review will not be maintainable in following eventualities:-
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications;
(ii) Minor mistakes of inconsequential import;
(iii) Review proceedings cannot be equated with the original hearing of the case;
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice;
(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error;
(vi) The mere possibility of two views on the subject cannot be a ground for review;
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched;
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition and
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.
13. The submission of learned counsel for the petitioner that the order dated 5th January, 2005 having been dispatched on 25th January, 2005 and 26th January, 2005 being a national holiday and only one working day was left, was not taken into consideration while considering the fact whether the appeal was filed within time or not is bereft of merit as this averment was made in the writ petition and was duly considered by this Court. However, while dismissing the writ petition, it was observed that Section 6 of the Industrial Employment (Standing Orders Act), 1946, prescribed the period of appeal to be preferred to the Appellate Authority within 30 days from the date on which the copies are sent. Therefore, the period of 30 days was to be counted from the date on which copies are sent. That being so, the appeal having been filed on 28th February, 2005/1st March, 2005 was barred by time.
14. Even in D.R. Industries Limited and Anr.(supra) where the challenge was made to proviso to Sub Section 1 of Section 35 of Central Excise Act, 1944 which provided that the power of the Commissioner (Appeals) to condone the delay in filing the appeal beyond the period of 60 days was confined to a further period of 30 days only, reference was made to two decisions of Delhi High Court rendered in M.R. Tobacco Pvt. Ltd. vs. Union of India, 2004(178) ELT 137 and Delta Impex vs. Commissioner of Customs, 2004(173) ELT 449. In M.R. Tobacco (supra), the Division Bench of this Court reiterated its view in Delta Impex (supra) that the Commissioner (Appeals) has no power to condone the delay beyond a further period of 30 days from the expiry of the time within which the appeal ought to have been filed, that the Central Excise Act, 1944 is a complete code and the provisions of Section 35 clearly indicate that the provisions of the Limitation Act were to apply only to the extent and during the extended period of 30 days and not beyond. Delay could be condoned by the Commissioner (Appeals) within the extended period of 30 days and thereafter he had no power left in him to entertain any application for condonation of delay or to entertain the appeal itself. The decision in M.R. Tobacco (supra) was challenged before the Supreme Court. The Supreme Court dismissed the SLP (Civil) No. 20552/2004 reported in 2004(94) ECC 373 in the following terms:- “In view of the fact that the provisions of the Limitation Act, 1963 have no application in relation to proceedings under the Central Excise Act and furthermore in view of the fact that the Act as a special statute deals with the matter relating to limitation, the High Court cannot be said to have committed any error in following the judgment of this Court in India House v. Kishan N. Lalwani, [2002] SUPP 5 SCR 522. We find no merit in this petition. The special leave petition is dismissed.”
15. Relying on this judgment as well as the other judgments, it was held by Gujarat High Court that the Limitation under Sub Section 1 of Section 35 of the Central Excise Act, 1944 was 60 days for filing an appeal and the same could have been condoned only up to a period of 30 days. It was urged that in extraordinary cases, the delay can be condoned. Since the constitutional validity of the proviso was challenged, therefore, the petitioner was given liberty to file fresh petition for invoking the writ jurisdiction under Article 226 of the Constitution of India. That being so, the petitioner does not get any benefit from this case. In Nelly Garments(supra); Amitara Industries Ltd.(supra) and Lathia Industries (supra), it was observed that in extraordinary cases where assessee is not in a position to challenge the order within the prescribed period of limitation, the assessee may invoke the writ jurisdiction of the Court. However, it was clarified that such a power has to be exercised sparingly.
16. As regards Board of Control for Cricket in India(supra), in that case, the order was reviewed in peculiar circumstances of the case as there was a mistake on the part of the Court in understanding the nature and purport of undertaking given by the counsel appearing for the Board on the well recognized maxim of equity, namely, actus curiae neminem gravabit which means an act of the court shall prejudice no man.
17. Things are substantially different in the instant case.
18. The review petitioner has not submitted anything on record to suggest that the impugned order suffers from any error apparent in law. While in the review petition the factual and legal submissions urged in the writ petition have been reiterated, in the review petition for the first time it is being pleaded that in exercise of power under Article 226 of the Constitution of India, the Court can condone the delay. In Tamilnadu (supra), it was observed by the Supreme Court that a mere repetition of the same argument, which were urged in the appeal and have been rejected is not sufficient to justify the exercise of power of review under Article 137 of the Constitution of India. Reference was made to Kamlesh Verma vs. Mayavati, (2013) 8 SCC 320 where it was held as under:- “9…. Review is not re-hearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to re-open concluded adjudications. This Court, in Jain Studios Ltd. v. Shin Satellite Public Company Ltd., (2006) 5 SCC 501, held as under:
11. So far as the grievance of the applicant on merits is concerned, the learned Counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.”
19. That being so, the petitioner has failed to show that there was any error of jurisdiction or error in the decision which warrants review of the order.
20. As regards invoking the jurisdiction of this Court under Article 226 of the Constitution of India, in the entire writ petition, no such plea was taken and this point was even not urged during the course of arguments. That being so, there are no grounds for invoking the extraordinary jurisdiction which in any case has to be exercised sparingly to review the impugned order.
21. In view of the foregoing, there is no merit in the review application, the same is accordingly dismissed.
JUDGE DECEMBER 01, 2016 rs