Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P(C) No.3275/2001
% Date of decision: 19.03.2008
Krishna Bus Service (P) Ltd. ….… Petitioner
Through: Mr.Sanjeet Kumar, Advocate.
Versus
Satvir Singh & Others ....... Respondents
Through: Mr.Sanjeev Kumar, Advocate for
respondent No.1.
CORAM :-
HON’BLE MR. JUSTICE ANIL KUMAR
1. Whether reporters of Local papers may YES
be allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported NO
in the Digest?
ANIL KUMAR, J.
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1. The petitioner has challenged the order dated 3 March, 2001 of
the Labour Court III dismissing the application of the petitioner
management under Order XLVII Rule 1 of the CPC, 1908 seeking review
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of order dated 16 October, 2000 whereby the application of the
respondent/workman under Section 33C(2) was allowed holding that
the respondent No.1 is entitled for an amount of Rs.40,240/- from the
petitioner on account of wages from December 1999, bonus for four
W.P(C) No.3275/2001 Page 1 of 13
st st
years, overtime wages for three years from 1 January, 1988 to 31
December, 1990 and overtime wages for working on national/festival
holidays for three years.
2. The respondent had filed an application under Section 33-C(2)
claiming an amount of Rs.55,580/- on account of earned wages for the
month of December 1990 @ 1040/-; leave wages for four years four
months @ Rs.1,040/- per month amounting to Rs.4,160/-; bonus for
four years, four months @ one month‟s salary for each year amounting
to Rs.4,160/-; overtime wages at the double rate for last three years
st st
from 1 January, 1988 to 31 December, 1990 @ Rs.800/- per month
amounting to Rs.28,800/-; wages for national & festival holidays, 60
days salary amounting to Rs.6,240/-; expenses for contesting case of
accident while on duty with Bus No.DEP 3196 @ Rs.7,000/- and legal
expenses amounting to Rs.2,100/-. After considering the pleas and
contentions and the evidence produced by the parties, the Labour
Court, however, allowed only an amount of Rs.40,240/- to the workman
for one month earned wages for December 1990 amounting to
Rs.1040/-; bonus for four years at 8.33% amounting to Rs.4160/-;
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overtime wages at double rate for three years from 1 January, 1988 to
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31 December, 1999 at Rs.800/- per month amounting to Rs.28,800/-
and overtime wages for working on national/festal holidays for three
years amounting to Rs.6,240/-. The Labour Court also held by order
W.P(C) No.3275/2001 Page 2 of 13
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dated 16 October, 2000 that if the amount of Rs.40,240/- is not paid
to the respondent workman within a period of three months from the
date of order, the petitioner shall also be liable to pay interest @ 12%
per annum from the date of the passing of the order.
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3. The petitioner sought the review of the order dated 16 October,
2000 by filing an application under Order XLVII Rule 1 read with
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Section 151 of the Code of Civil Procedure on the ground that on 9
December, 2000, the petitioner was trying to search out some papers
regarding his business and he was surprised to see that some vouchers
were found regarding the bonus amount which the workman had
already received from the applicant/management. The petitioner
contended that the vouchers found by the petitioners are for a sum of
Rs.1206/- for the year 1988 and another sum of Rs.924/- for the year
1989 and third voucher for Rs.1672/- for the 1990 respectively.
Consequently, the petitioner contended that out of the claim of
Rs.4,060/-, respondent workman has already received a sum of
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Rs.3,802/-. The petitioner also sought review of order dated 16
October, 2000 on the ground that he worked with the management in
the year 1988 to December 1990 for 740 days, then he cannot claim
overtime @ Rs.800/- per month for the respective period and relied on
The Punjab University v. Manmohan & Ors, AIR 1973 Punjab &
Haryana 236 to contend that the power of the Court to review is not
W.P(C) No.3275/2001 Page 3 of 13
limited to discovery of new documents after the judgment but the Court
has wide discretion to do justice by granting review for any sufficient
reason.
4. The application of the petitioner was contested by the
respondent/workman and after hearing the parties, the Labour court
dismissed the application of the review on the ground that the petitioner
has not pleaded the essential circumstances which are necessary for
considering the case of the management for review. The Labour Court
held that the review can be sought only on three grounds, namely, (i)
discovery of new and important matter of evidence which after exercise
of due diligence was not within the knowledge of the applicant or could
not be produced by him at the time when the decree was passed or
order was made, or (ii) some mistake or error apparent on the face of
the record, or (iii) for any other sufficient reason.
5. The Labour Court noticed that in the application, the petitioner
did not plead as to how the petitioner/management could not produce
those documents despite due diligence on their part. The Labour Court
considered that the evidence of the petitioner was recorded for more
th th
than one year from 8 January, 1999 till 26 May, 2000 and no facts
have been pleaded regarding due diligence on the part of the petitioner.
The Labour Court also considered the plea of the respondent that
W.P(C) No.3275/2001 Page 4 of 13
though the signatures were obtained from the respondent/workman on
some vouchers and register, however, the bonus was not paid to him.
These allegations of the workman that signatures of the respondent
workman were obtained on some vouchers and register were not
specifically denied by the petitioner. The due diligence on the part of
the petitioner was also disbelieved on account of the fact that the
management was maintaining its office and it has a Cashier as well as
Accountant and in the cross examination of petitioners‟ witness, Shri
Manjit Singh, it was admitted that the petitioner was maintaining
records of its employees in respect of leave, bonus paid, etc.
6. The case of the petitioner was not that the documents sought to
be produced later on, three vouchers, on the basis of which review of
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the order dated 16 October, 2000 was sought, were misplaced. In the
circumstances, it was held that the management has failed to make out
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a case for review of order dated 16 October, 2000 on the ground of
discovery of new documents which could not be produced despite due
diligence.
7. Discovery of new evidence or material by itself is not sufficient to
entitle a party for review of a judgment. A review is permissible on the
ground of discovery of new evidence only when such an evidence is
W.P(C) No.3275/2001 Page 5 of 13
relevant and of such a character that if it had been produced earlier it
might possibly have altered the judgment, further, it must be
established that the applicant had acted with due diligence and that the
existence of the evidence, which he has now discovered, was not within
his knowledge when the order was passed. If it is found that the
petitioner has not acted with due diligence then it is not open to the
Court to admit evidence on the ground of sufficient cause. The party
seeking a review should prove strictly the diligence he claims to have
exercised. In a review application a party cannot be allowed to introduce
fresh documents merely to supplement evidence which might possibly
have had some effect on the result. A review cannot be sought merely
for fresh hearing or arguments or correction of an erroneous view taken
earlier. The power of review can be exercised only for correction of a
patent error of law or fact which stares in the face, without any
elaborate argument being needed for establishing it. In Aribam
Tuleshwar Sharma v. Aribam Pishak Sharma (AIR 1979 SC 1047) the
Supreme Court held that :-
“It is true there is nothing in Article 226 of the Constitution
to preclude the High Court from exercising the power of
review which inheres in every Court of plenary jurisdiction
to prevent miscarriage of justice or to correct grave and
palpable errors committed by it. But, there are definitive
limits to be exercise of the power of review. The power of
review may be exercised on the discovery of new and
important matter of evidence which, after the exercise
of due diligence was not within the knowledge of the
person seeking the review or could not be produced by
W.P(C) No.3275/2001 Page 6 of 13
him at the time when the order was made; it may be
exercised where some mistake or error apparent on the face
of the record is found, it may also be exercised on any
analogous ground. But, it may not be exercised on the
ground that the decision was erroneous on merit.”
8. The limitation on the powers of the Court under Order 47 Rule 1
CPC are similar and applicable to the jurisdiction available to the High
Court under Article 226 of the Constitution of India. With caution the
Court has to ensure that such power is not exercised like entertaining
an 'Appeal in disguise'. Where conceivably there may be two opinions
and an error has to be established by a long drawn process it is not an
error apparent on the face of the record. The power of review can be
exercised only for correction of a patent error of law which is traced in
the face without any elaborate argument being noted for establishing it.
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 on the face of the record
justifying the court to exercise its power of review. In the case of Parsion
Devi and Ors. v. Sumitri Devi and Ors. (1997) 8 SCC 715, the Supreme
Court has held as under:
" It is well settled that review proceedings have to be
strictly confined to the ambit and scope of Order 47 Rule 1
CPC. 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
W.P(C) No.3275/2001 Page 7 of 13
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. An error
which is not self evident and has to be dictated by a
process of reasoning can hardly be said to be an error
apparent on the face of the record.
9. A review is permissible on the ground of discovery of new
evidence only on the applicant establishing the he had acted with due
diligence and that the existence of the evidence, which he has now
discovered, was not within his knowledge when the order was passed. If
it is found that the petitioner has not acted with due diligence then it is
not open to the Court to admit evidence on the ground of sufficient
cause. The party seeking a review should prove strictly the diligence he
claims to have exercised. In a review application a party cannot be
allowed to introduce fresh documents merely to supplement evidence
which might possibly have had some effect on the result.
10. Petitioner had not pleaded that he had acted with due diligence in
tracing the papers, three vouchers, showing payment of a part of the
amount to the respondent on account of bonus. What has been pleaded
is that the petitioner could not bring on the record the said „vouchers
due to some unavoidable circumstances‟, in paragraph 4 of the
W.P(C) No.3275/2001 Page 8 of 13
application for review. What are those unavoidable circumstances have
neither been explained nor are the facts disclosed by the petitioner such
that `due diligence on the part of the petitioner‟ can be inferred from
them. The petitioner has not explained as to why the vouchers of
payment of some amount of bonus could not be brought on record
despite the fact that the evidence was recorded for more than one year
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from 8 January, 1999 till 26 May, 2000. Lack of due diligence has
also been inferred from the fact that the management was maintaining
its office and it has a Cashier as well as an Accountant and in the cross
examination of petitioner‟s witness, Shri Manjit Singh, it was admitted
that the petitioner was maintaining records of its employees in respect
of leave, bonus paid, etc. This has not been explained as to how these
three vouchers came to the knowledge of the petitioner after the
decision and where these vouchers were kept. In disallowing the plea of
the review of the petitioner, the allegation of the respondent that his
signatures were obtained on some vouchers and register, however, the
bonus was not paid to him has also been considered. These allegations
of the workman that signatures of the respondent workman were
obtained on some vouchers and register were not specifically denied by
the petitioner. There is complete lack of diligence on the part of the
petitioner in producing the alleged vouchers in support of the
contention that out of an amount of Rs.4160/- a sum of Rs.3801/- was
already paid. Diligence which will be a sine qua non for review of the
W.P(C) No.3275/2001 Page 9 of 13
order in these facts and circumstances has neither been pleaded nor
established.
11. In Shanmugam Servai v. P. Periyakaruppan Servai, AIR 1996
Madras 411, the Madras High Court laid down the legal requirements of
review under CPC which are as under:-
“…………..I am firm in saying that such discovery of new
evidence must contain (i) the relevancy of the same and (ii)
be such of a character that, if it had been given in a suit it
would have altered the judgment. It must at least be such
as presumably to be believed and if so, it would be
conclusive. The discovery afore stated is not only a
discovery of new and important materials or evidence, that
would entitle a party to apply for review, but the discovery
of any new materials or evidence; and important matter
must be one which was not within the knowledge of
the party when the decree was made. The person
seeking the review should prove strictly the diligence
as clearly spelt out in the above rule which he claims
to have exercised and also that the matter or evidence
to which he wishes to have access to is, if not
absolutely conclusive, at any rate, nearly conclusive.
What has become more imperative is that a mere and
bare assertion in the affidavit that the party could not
trace the documents earlier or he was not in
possession nor in custody of said documents is not a
ground at all to seek legal aid provided under the above
rule. It is not the proper function of a review
application to supplement the evidence or to make it
serve the purpose of merely introducing evidence
which might possibly have had same effect upon the
result.
W.P(C) No.3275/2001 Page 10 of 13
12. The concept of finality of judgment has to be enforced with its
normal rigor. If the practice adopted by the petitioner in the present
case is permitted, it will amount to undermining the concept of finality
and in every case, the party who is not satisfied with the judgment,
would seek a rehearing of the matter in the guise of review. . It is a
settled canon of law that merely because a party is not satisfied with
the judgment of the court or it was possible to take another view on
reasonable interpretation on law and facts, would by itself be no ground
for review of a judgment. In the circumstances the petition under Article
226 of the Constitution of India against the dismissal of the application
for review is an attempt on the part of the petitioner to have the
rehearing and delay the payment of the amounts which are due to the
respondent.
13. It is also a settled position of law that in exercise of jurisdiction
under Article 226 of the Constitution of India, the Court is not to
interfere with factual findings of the lower courts and should restrain
itself from re-appreciating evidence while exercising powers of judicial
review. Reliance for this proposition can be placed on the judgment of
the Supreme Court, Government of A.P. and Ors. v. Mohd. Nasrullah
W.P(C) No.3275/2001 Page 11 of 13
Khan reported as (2006) 2 SCC 373. It was held that a writ court
should refrain from interfering with the orders of an inferior tribunal or
subordinate court unless it suffers from an error of jurisdiction or from
a breach of the principles of natural justice or is vitiated by a manifest
or apparent error of law. The objective of judicial review is that a person
receives a fair treatment and objective is not to re-appreciate the entire
pleas and evidence and draw inferences again. Judicial review is not an
appeal from a decision but a review of the manner in which the decision
is made. Power of judicial review is meant to ensure that the individual
receives fair treatment and not to ensure that the conclusion which the
authority reaches is necessarily correct in the eye of the court.
14. The Labor Court while dismissing the application for review of the
petitioner has considered all the facts and circumstances and the
Learned Counsel for the petitioner in the facts and circumstances is
unable to show any manifest error or perversity in the order of the
Labor Court dismissing the application of the petitioner for review of
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order dated. 16 October, 2000 allowing the application of the
respondent/workman under Section 33 C (2) of the Industrial Disputes
Act, 1947. The writ petition is without any merit and for the foregoing
reasons, I do not find any perversity in the order of the Labour Court
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dated 3 March, 2001 nor there is any manifest error nor there is
denial of principle of natural justice so as to invoke the jurisdiction of
W.P(C) No.3275/2001 Page 12 of 13
this Court under Article 226 of the Constitution of India. The writ
petition is, therefore, without any merit and is dismissed. The interim
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order dated 16 October, 2000 is vacated and pending applications, if
any, are disposed of. Parties are, however, left to bear their own costs.
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March 19 , 2008. ANIL KUMAR, J.
‘Dev’
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