2005 Supreme(SC) 486

2005(2) Supreme 675
Supreme Court of India
(From Delhi High Court)
N. Santosh Hegde, B.P. Singh & S.B. Sinha, JJ.
Kapra Mazdoor Ekta Union —Appellant
versus
Management of M/s. Birla Cotton Spinning and Weaving Mills Ltd. and Ors. —Respondents
Civil Appeal No. 3475 of 2003
Decided on 16-3-2005
Counsel for the Parties :
For the Appellant : Vijay K. Jain, Advocate.
For the Respondents : L. Nageshwar Rao, Sr. Advocate, S. Sukumaran, O.P. Khaitan, A.T. Patra and K. Rajeev, Advocates.

Important points
(1) Till the award becomes enforceable u/s 17A of Industrial Disputes Act, Tribunal retains jurisdiction in the dispute referred to it for adjudication and upto that date it has the power to entertain application in connection with such dispute.(2) Labour Court/Industrial Tribunal constituted under Industrial Disputes Act does not have power or jurisdiction to review its order.

Headnote:(i) Industrial Disputes Act, 1947—Sections 17A and 20(3)—Tribunal juris­diction to recall its award—If an application to recall award is made before the award had become enforceable, Tribunal would not become functus officio—Tribunal will have jurisdiction to entertain such application.

       Held : We shall first take up the second question namely - whether the Tribunal was functus offico having earlier made an Award which was published by the appropriate Government. It is not in dispute that the Award was made on June 12, 1987 and was published in the Gazette on August 10, 1987. The application for recall was made on September 7, 1987. Under sub-section (1) of Section 17A of the Act an Award becomes enforceable on the expiry of 30 days from the date of its publication under Section 17 of the Act. Thus the Award would have become enforceable with effect from September 9, 1987. However, the application for recalling the Award was made on September 7, 1987 i.e. 2 days before the Award would have become enforceable in terms of sub-section (1) of Section 17A of the Act. The High Court rightly took the view that since the application for recall of the order was made before the Award had become enforceable, the Tribunal had not become functus officio and had jurisdiction to entertain the application for recall. This view also find supports from the judgment of this Court in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra). This Court after noticing the provisions of sub-section (3) of Section 20 of the Act which provides that the proceedings before the Tribunal would be deemed to continue till the date on which the Award become enforceable under Section 17A, held that till the Award becomes enforceable the Tribunal retains jurisdiction over the dispute referred to it for adjudication, and up to that date it has the power to entertain the application in connection with such dispute. The jurisdiction of the Tribunal had to be seen on the date of the application made to it and not the date on which it passed the impugned order. The judgment in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra) has been reiterated by this Court in Satnam Verma vs. Union of India (supra), J.K. Synthetics Ltd. vs. Collector of Central Excise­: (1996) 6 SCC 92 and M.P. Electricity Board vs. Hariram etc.: JT 2004 (8) SC 98. (Para 15)

       (ii) Industrial Disputes Act, 1947—Section 18—Industrial dispute—Award in terms of settlement reduced into writing, signed by representative of management, representatives of two workers union and by Deputy Labour Commissioner-cum-Conciliation Offi­cer—Application by appellant Union ­before the Tribunal to recall the award on a plea that question of fairness of the settlement had not been considered in the award—Tribunal allowed the application and framed an additional issue­ whether settlement was just and fair and if so it was not binding on the parties? Order of the Tribunal was set aside by High Court in writ filed by the management—Appeal—Whether the Tribunal had jurisdiction to recall its earlier order which amounted virtually to ­revise it’s earlier order? No—Difference between a procedural review and ­review on merits—Recall or review sought was not a procedural review but review on merits which was not permissible in absence of provision in the Act conferring power to review on the Tribunal either expressly or by necessary implications.

       Held : 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. The facts of the instant case are quite different. The recall of the Award of the Tribunal was sought not on the ground that in passing the Award the Tribunal had committed any procedural illegality or mistake of the nature which vitiated the proceeding itself and consequently the Award, but on the ground that some matters which ought to have been considered by the Tribunal were not duly considered. Apparently the recall or review sought was not a procedural review, but a review on merits. Such a review was not permissible in the absence of a provision in the Act conferring the power of review on the Tribunal either expressly or by necessary implication. (Paras 19 and 20)