Employees in Relation to the Management of Katras Project Area of Bccl Vs. the Presiding Officer and ors. - Court Judgment

P.K. Balasubramanyan, CJ.

1. Heard both the sides.

The appellant, the petitioner in CWJC No. 1097 of 1994 (R) challenges the decision of the learned Single Judge dismissing the writ petition filed by it challenging a revised or a reviewed award of the Industrial Tribunal dated 20.12.1993. At the instance of the workmen the following question was referred to the Industrial Tribunal :--

'Whether Sri J.P. Srivastave and 39 others listed in the annexure are workmen of the management of Katras Project Area of M/s. Bharat Coking Coal Ltd, and whether the demand of the Rashtriya Colliery Mazdoor Sangh and these persons be reinstated in the services of the said management is justified? If so, to what relief are these persons entitled?'

2. By award dated 11.6.1991 after a detailed discussions of the evidence in the case, the Tribunal held that only 10 out of the 39 workmen were entitled to regularisa-tion or be reinstated as the workmen of the appellant. In paragraph 29 of the award the case of each claimant was considered. We think it proper to quote the said paragraph at this stage.

'19. 'Now the next important question for consideration is as to whether the concerned workmen were ever engaged by Shri Srivastava, Tyndal contractor. The management has stated that none of the concerned workmen were ever engaged by Sri Srivastava. They also stated that to surprisingly enough the management has not disclosed any name who worked under the contractor and in that view of the matter such statement merits no consideration. On the other hand Sri Srivastava stated in his evidence that he never issued any appointment letter to any workman. We have no other paper except Ext. W-4 to show that some of the concerned workmen worked under Sri Srivastava. Even Ext. W-4 contains the name of 12 to 13 persons. This is the photocopy of the weekly were register showing payment to the workman which has been duly countersigned by the LEO (C) of course it does not bear the signature of any authority of the management but the LEO(C) is also not a private person. He is one of the Government official and the payment to the workers are certified by him, I find that the weekly payment register starts from Sl. No. 30 and lasts at Sl. No. 42. In one of the weekly sheet the Sl. extent to 43 including the name of one Vinod Kumar Mishra. Out of these 14 names the names of Shri B.R. Ghosh, Jodhan Singh, Hoda and Vinod Kumar Mishra and Jalauddin Khan do not agree with the names given out in the annexure of the order of reference. The remaining 9 names definitely are to be found in the annexure they are Joginder Singh, Uttam Pandey, Rani-kripan Singh, Tribhuban Singh, Mithilesh Kumar Singh, Vijay Kumar Singh, Ravindra Kumar Singh, Ram-naresh Singh and Hararam Singh. We have no record to show that other concerned workmen ever worked under the contractors Sri J.P. Srivastava. Certainly J.P. Srivastava was the contractor and his name appears everywhere. Thus I am to hold that all the above 10 workmen including the contractor worked as Tyndal and since they were working in permanent nature of job they will be deemed to be the employees of the management. It is held accordingly. If they have been stopped they be reinstated with 2 months from the publication of the Award. Their continuity of service will be maintained.'

3. The award was published in the gazette on 17.7.1993. The management, the appellant filed a writ petition, CWJC No. 196/94. No doubt that was dismissed subsequently. Meanwhile, the workmen filed an application before the Tribunal for recalling the award dated 11.6.1993 or for reviewing the award. They contended that the documents produced by them and relied on by the Tribunal to grant relief only to 10 persons was an incomplete document and that they may be permitted to produce the complete document and the award be reviewed or modified in the light of that fresh document produced. The management resisted that application by contending that the Industrial Tribunal had no power of review and though it might correct an accidental omission or error while passing an award, it could not review its award so as to substitute the same with another award. The Tribunal brushed aside that objection and allowed that application by order dated 24.11.1993. Thereafter the Tribunal took further evidence and proceeded to pass another award dated 20.12.1993. The Tribunal starts the discussion in that award by saying that that was one in continuation of the award dated 11.6.1992 already passed in Reference Case No. 29/91. It proceeded to pass a fresh award holding that all the workmen referred to in the reference are entitled to regularization in the services of the management. The management challenged the order on the review petition and the subsequent additional award in the writ petition. It was contended that the Industrial Tribunal had no power of review and that it was not entitled to pass a second award on a reference which it had already answered and that the second award was one without jurisdiction. The workmen resisted the writ petition by contending that the Industrial Tribunal could review its decision once it was shown to be not correct and that the fresh award passed by the Tribunal was consistent with its finding and called for no interference. The learned Single Judge referred to the decision of the Supreme Court in Grindlays Bank v. Central Government Industrial Tribunal, AIR 1981 SC 606, and came to the conclusion that the Industrial Tribunal could correct its award by directing the management to reiastate all the workmen instead of the ten workmen it had earlier directed to be reinstated by the original award. Thus, the learned Single Judge dismissed the writ petition. This is what is challenged before us by the management.

4. There is no provision in the Industrial Tribunal conferring the power of review on the Industrial Tribunal. A power of review is a conferred power and it is not an inherent power. It is one thing to say that the Tribunal constituted for adjudicating of claims could have the necessary power to correct its errors or to rectify the omissions in an award it had already made. But it is another thing to say that it has the power to review its award and alter its conclusion. Here, the Tribunal had, based on the documents produced by the workmen, held that only 10 out of the 40 workmen whose claims were referred to the Tribunal, were entitled to regularization or absorption in the services of the management. We have quoted the relevant paragraph of the award originally rendered in the earlier part of the judgment. It can be seen therefrom that on the basis of the documents relied on by the workmen, the Tribunal had considered the claims of the various workmen and had found, based on the evidence available, that only 10 workmen named in the award were entitled to absorption or regularization. It cannot, therefore, be said that the Tribunal had committed any apparent error in rendering such a decision. It is not a case where the Tribunal had mistaken the effect of a document produced before it or had misread a document produced before it or made an arithmetical error while counting the workmen who were entitled to be absorbed. This was a case where the Tribunal relied on a document produced by the workmen and took a decision on the claims of the various workmen on merits. In other words, the Tribunal did not commit any error, much less an apparent error in passing the original award.

5. Order XLVII, Rule 1 of the Code of Civil Procedure confers a power of review on the Court, on the ground of discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the party seeking the review or could not be produced by him at the time when the decree was passed or the order was made. But such a power is not conferred on the Industrial Tribunal by any of the provisions in the Act. In this case, the Tribunal has purported to review its award based on a document that was filed subsequently by the workmen and which prima facie contradicted what they had already produced as Annexure-W-4. On the basis of such a document, in our view, a review of the judgment can be made by the Industrial Tribunal only if a specific power in that behalf is conferred on it by any of the provisions or rules framed governing its procedure. There was no plea before us that there is any such provision or rule enabling the Tribunal to review its award based on fresh evidence made available to it after reopening its earlier award. An Industrial Tribunal gets jurisdiction to render an award based on the reference made to it under Section 10 of the Industrial Disputes Act. It can only answer the question referred to it and it cannot travel outside the question though in an appropriate case it may be able to answer some incidental issue arising out of the question referred to it. But once it has answered that reference, it appears to us that it loses its jurisdiction over the subject matter of that reference. If at all, it only retains jurisdiction to correct clerical or arithmetical error or to rectify some accidental omission that has occurred in the award already rendered. It cannot purport to reopen the award, undertake a fresh enquiry and render an award in a sense contradicting itself. Since such a power is not conferred on the Tribunal, we have necessarily to hold that the subsequent award passed by the Tribunal is one without jurisdiction.

6. The learned Single Judge has relied on the decision of the Supreme Court in Grindlays Bank v. Central Government Industrial Tribunal, AIR 1981 SC 606. The said decision was relied on by the learned counsel for the respondents, before us also. In that case, what was involved was the question whether the Industrial Tribunal which had the jurisdiction to render an ex parte award in terms of Rule 22 of the Industrial Disputes (Central) Rules, 1957, had the power to set aside that ex parte award on an application being made to the Tribunal. The Supreme Court, taking the view that on passing the award the Tribunal does not become functus officio and the proceedings are not deemed to be concluded till the expiry of 30 days form the publication of the award, took the view that the power to render an ex parte award carried with it the power to set aside that ex parte award on sufficient cause being shown. The case related essentially to an interpretation of the scope of Rule 22 of the Industrial Disputes (Central) Rules, 1957 and the power of the Tribunal to set aside an ex parte award even in the absence of a specific provision corresponding to Order IX, Rule 13 of the Code of Civil Procedure. With respect, we do not think that the ratio of that decision could be pushed to the extent of permitting an Industrial Tribunal, after it had rendered the award, to reopen that award on a review based on fresh evidence sought to be adduced by one of the parties and to re-write the award on the basis of such fresh or additional or contradictory evidence. Even if the Industrial Tribunal does not become functus officio on the passing of the award as indicated by the Supreme Court, it is not entitled to exercise the power once it has rendered the award, to pass a fresh award or what is called in this case, an award in continuation of the earlier award. We are, therefore, of the view that the learned Single Judge was not justified in thinking that the decision of the Supreme Court in Grindlays Bank's case covers the situation available in this case. We are, therefore, constrained to hold that the order dated 24.11.1993 in Misc. Application No. 1/93 and the subsequent additional or supplementary award dated 20.12.1993 are both without jurisdiction and are liable to be quashed, The consequence would be that the award dated 11.6.1993 in Reference No. 29/91 will stand restored.

7. In the result, we allow this appeal, set aside the decision of the learned Single Judge and allow the writ petition filed by the management to the extent indicated above. There will be no order as to costs.