The Management of Topb, the Oberoi Palm Beach Hotel Vs. the Presiding Officer, Labour Court and anr. - Court Judgment

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- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 2 on the other hand, submitted that law is well settled that in a review the court will not rehear the writ petition. 5. it is now well settled that although provisions of order 47 under rule 1 of the cpc do not strictly apply to review of a judgment or order delivered in a writ petition, the principles therein will apply and, therefore, a review can be considered by the court within the scope as provided in the said provisions of order 47 under rule 1 of the cpc hence, a review can be allowed by the court in respect of the judgment delivered in a writ petition only if there are errors apparent on the face of the record.a.k. patnaik, j.1. this is an application for review of the judgment dated 6.1.2003 passed in ojc no. 7520 of 2001.2. the brief facts of the case are that the petitioner was carrying on business of hotel in the name and style of 'oberoi palm beach' at gopalpur in the district of ganjam. the opp. party no. 2 was employed in the said hotel and his service was terminated on 15.12.1993. an industrial dispute was raised on account of the said termination of service of the opp. party no. 2 and a reference was made to the presiding officer, labour court, jeypore-koraput under section 12(5) of the industrial dispute act, 1947 by the government of orissa in the labour and employment department in their memo dated 26.8.1995 as to whether the termination of the service of the opp. party no. 2 by the management of oberoi palm beach, gopalpur-on-sea with effect from 15.12.1993 was legal and/or justified and if not to what relief the opp. party no. 2 was entitled the said reference was numbered as industrial dispute case no. 102 of 1995 and on 19.3.2001 the presiding officer, labour court, jeypore-koraput passed an award in favour of the opp. party no. 2 paragraph 10 of the said award is quoted herein below :'in the result the termination of sri m. papa rao casual utility worker is held illegal and unjustified. he is entitled to reinstatement with back wages. the management of m/s. oberoi palm beach gopalpur-on-sea is directed to reinstate the workman forthwith and to pay back wages within three months. in case back wages are not paid within the stipulated time the workmen shall be entitled to get interest thereon at the rate of 18% per annum.the reference is accordingly answered.'aggrieved by the said award dated 19.3.2001, the petitioner filed writ petition ojc no. 7520 no. 7520 of 2001 and after hearing the parties, a division bench of this court delivered a judgment on 6.1.2003 holding that there was no merit in the writ petition and directing the writ petitioner-management to make payment under section 17-b of the industrial dispute act, 1947 excepting a period of 25 days within one month from the date of the said order. by the said judgment, the division bench dismissed the writ petition. this review petition has been filed against the said judgment dated 6.1.2003 of the division bench.3. mr. patnaik, learned counsel for the petitioner referred to the various grounds taken in the review petition and tried to assail the said judgment of the division bench. he vehemently argued that the judgment of the division bench of this court was not correct in law or in facts and in any case lost sight of the material provisions of law. in particular, he pointed out that, the writ petition was heard during december, 2002 and the judgment was delivered on 6.1.2003 but the hotel of the writ petitioner-review applicant was closed down by the management during january, 2003 and there was no prospect of opening of the hotel in future. mr. patnaik submitted that since the hotel has not been reopened, the question of reinstating the opp. party no. 2 in service did not arise nor could the opp. party no. 2 be paid the wages last drawn by him in accordance of the provisions of the section 17-b of the industrial disputes act, 1947.4. mr. r.k. bose, learned counsel for the opp. party no. 2 on the other hand, submitted that law is well settled that in a review the court will not rehear the writ petition. he further submitted that the review is also not an appeal and the court should not allow a challenge to the judgment under review as if it is an appeal. he submitted that there is no infirmity in the judgment under review and the court should dismiss the review petition with cost.5. it is now well settled that although provisions of order 47 under rule 1 of the cpc do not strictly apply to review of a judgment or order delivered in a writ petition, the principles therein will apply and, therefore, a review can be considered by the court within the scope as provided in the said provisions of order 47 under rule 1 of the cpc hence, a review can be allowed by the court in respect of the judgment delivered in a writ petition only if there are errors apparent on the face of the record. to allow a party to demonstrate by detailed reason or argument that a judgment delivered in a writ petition contains errors would be to allow to such party a rehearing of the writ petition which is not permissible in a review petition. we find on a reading of the judgment dated 6.1.2003 of the division bench in ojc no. 7520 of 2001 that there are no palpable errors apparent in the said judgment so as to call for review. we are, therefore, not inclined to review the judgment dated 6.1.2003 on the ground of errors apparent on the face of the record.but we find force in the submission of mr. patnaik that the hotel has been closed down by the management in january, 2003 and it is not possible for the management to reinstate the opp. party no. 2 in service and the judgment should be reviewed on this ground. by the award dated 19.3.2001 the presiding officer, labour court, jeypore-koraput has held that the termination of the service of opp. party no. 2 was illegal and unjustified and he was entitled to be reinstated with back wages. by the said award a direction has also been given to the management to reinstate the opp. party no. 2 forthwith and to pay back wages within three months and further if the back wages are not paid within the said period of three months the opp. party no. 2 will be entitled to get interest thereon at the rate of 18% per annum. the effect of the said award which was delivered on 19.3.2001 is that the opp. party no. 2 would be entitled to get back wages right from the date of termination of service till 19.3.2001 and if such wages were not paid within a period of three months and if the back wages were not be paid within three months the opp. party no. 2 would be entitled to get interest thereon at the rate of 18% per annum. further by the said award dated 19.3.2001 the opp. party no. 2 would be entitled for reinstatement and failing reinstatement, pay back wages for the period from 19.3.2001 till the date of closure of the hotel by the management which is said to have taken place in january, 2003. with effect from january, 2003 however, if the hotel has been closed down by the management, the opp. party no. 2 will not be entitled to get any back wages with effect from the date of such closure, but would be entitled to compensation in the same manner as other workmen have been paid at the time of closure.6. the judgment dated 6.1.2003 passed in ojc no. 7520 of 2001 stands modified accordingly and the review application is allowed to the extent indicated above.m.m. das, j.7. i agree.