[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. CIVIL REVIEW PETITION NO. 54/2007 IN S.B. CIVIL WRIT PETITION NO. 297/1999 HOTEL MERU PALACE Vs. THE JUDGE, LABOUR COURT, JAIPUR & ORS. DATE: 09/05/2008. HON'BLE MR. JUSTICE K.S. RATHORE Mr. Vinendra Agarwal for the petitioner. Mr. Prem Kumar Sharma for the respondents. **** The instant review petition under Article 226 of the Constitution of India read with Order 47 Rule 1 of the Code of Civil Procedure, 1908 is preferred by the petitioner with the prayer that the review petition may be allowed and the order passed by this Court in S.B. Civil Writ Petition No. 297/1999 dated 19.12.2006 be recalled and the writ petition be restored at its original number. Brief facts of the case are that the petitioner filed a writ petition before this Court which was registered as S.B. Civil Writ Petition No. 297/1999 in the matter of Award dated 02.06.1997 passed by the Labour Court, Jaipur in Case No. LCR 328/1986 with the prayer that by an appropriate writ, order or direction, the impugned Award dated 02.06.1997, the order dated 27.03.1989 and the order dated 22.06.1990 may kindly be [2] quashed and set aside and the respondent No.3 Rajveer Singh may kindly be held guilty of the charges levelled against him vide charge sheet dated 1/2nd October, 1985 and the dismissal order of the respondent No.3 dated 11.02.1985 may kindly be upheld. The aforesaid writ petition was filed by petitioner Hotel Meru Palace through its General Manager Shri U.C. Chaturvedi. The respondent No.3 was appointed as trainee for six months on the pot of bill clerk cum cashier w.e.f 19.09.1983. During the training period as his work was not found satisfactory, therefore, he was not taken in regular employment. He was warned many times during the training period and was sent in different departments for training. From April, 1984 he was assigned the work of night auditor in Accounts Department. The duties of night auditor are more or less similar to the bill clerk cum cashier. The respondent No.3 was given a memo dated 11.09.1985 alleging therein that he was not giving daily income report with complete figures and budgeted figures were not being given from 01.09.1985. Another memo was served upon the respondent No.3 on 23.09.1985 and after serving memo, enquiry was conducted against the respondent No.3 and on the basis of the enquiry report, the respondent-workman was terminated from service vide order dated 11.02.1986. [3] The respondent-workman raised the dispute before the Labour Court and the Labour Court passed an award in favour of the respondent-workman on 02.06.1997 and quashed and set aside the termination order dated 12.10.1986 holding that the respondent-workman is entitled to get the pay of the post of night auditor and is also entitled to get yearly increment from 12.10.86 and ordered to reinstate the respondent-workman with 30% back wages and the service of the respondent-workman was ordered to be treated continued from 27.01.1994. Against the aforesaid Award passed by the Labour Court, Jaipur dated 02.06.1997, a writ petition was filed by the petitioner Hotel Meru Palace before this Court, as mentioned herein above, and the same was decided by this Court vide order dated 19.12.2006. As on that date, nobody appeared on behalf of the petitioner and the writ petition was decided on merit and the same was partly allowed observing as under:- “As the respondent- workman utterly failed to prove whether he was in gainful employment or not, in such circumstances, awarding him 30% back wages is contrary to the law laid down by the Hon'ble Supreme Court and this Court and as per the principle of No Work No Pay, the respondent-workman is not entitled to receive 30% back wages, but is entitled to get the benefit of reinstatement and continuity of service with all consequential benefits. Accordingly, the impugned [4] Award dated 02.06.97 passed by the Labour Court, Jaipur is modified as indicated herein above and the writ petition stands partly allowed.” By way of this review petition, the petitioner submitted that this Court has decided the writ petition on merit without considering the averments made in the writ petition. Further this Court also not considered the points and grounds mentioned and raised by the petitioner in the writ petition. It is also contended that it is an individual dispute and it was espoused by a Union but the Union was not authorised to espouse the dispute and convert the individual dispute of Rajveer Singh into an industrial dispute which is not maintainable as contemplated by Section 2(K) of the Industrial Disputes Act and as held by the Hon'ble Supreme Court in the case of J.S. Yadav Vs. Forbes Gokak Ltd., 2005(3) SCC 202. Further the petitioner raised preliminary objections regarding illegality of the reference, jurisdiction of the Labour Court and authority of the respondent No.2 to espouse the dispute, but the Labour Court has not decided the same in right perspective and without deciding the preliminary objections which were raised by the review- petitioner, passed the impugned Award dated 02.06.1997 as the petitioner has specifically [5] raised this issue that the respondent No.2 has no locus standi to espouse and contest as it was not authorised by substantial number of workmen and not even by the respondent No.3, the workman to raise a dispute on his behalf nor there is any resolution of the union to raise the dispute. Therefore, the espousal of the matter was not by an authorised union and as such the award passed in such a matter is without jurisdiction. It is further alleged that the Labour Court has seriously erred in holding that the enquiry was unfair and the established principle of law is that after the enquiry is held to be unfair, then whole question of misconduct is at large before the Court for consideration, as held in the case of Ritz Theatre Ltd. Vs. Its workers, 1962 II L.L.J. 498. Learned counsel appearing for the review petitioner further submits that the Labour Court as well as this Court failed to appreciate that the employment of the workman was as a trainee and for a very short time i.e .1983 to 1984 and during this period, several warnings were given and ultimately he was charge-sheeted. In such circumstances, the order of reinstatement was contrary to the settled preposition of law and cannot be said to be an appropriate order and the respondent-workman is only entitled to get the compensation not reinstatement. [6] Learned counsel appearing for the respondent-workman answered the preliminary objections raised here in the review petition and submits that the industrial dispute was raised as per the provisions of Section 12 of the Industrial Disputes Act, 1947 and ultimately on failure of talks the State Government Labour Department framed issues for adjudication and the matter was referred to the Labour Court. It is also contended that power of review cannot be exercised to re-open the case again and the same can only be exercised for correction of mistake and there is no mistake apparent on the face of the record in the order dated 19.12.2006 passed by this Court in the writ petition as per Order 47 Rule 1 CPC and therefore, the review petition deserves to be dismissed only on this count alone. Learned counsel for the respondent-workman further submits that the Labour Court has rightly arrived at a conclusion that the misconduct, negligence and disobedience were not proved by adducing evidence of Hotel Meru Palace and the findings of the Labour Court are not perverse or incorrect and the judgment passed by this Court in the writ petition has been passed after perusal of the record as well as the award passed by the Labour Court. There is no perverse finding on any point and while passing the award by the Labour [7] Court and the judgment by this Court in the writ petition, the findings are given after considering the entire record of the case and there is no illegality in the same. The judgments referred by the learned counsel for the petitioner also distinguished by the learned counsel for the respondent-workman. I have heard the submissions advanced on behalf of the review petitioner as well as on behalf of the respondent-workman and carefully gone through the order dated 19.12.2006 passed by this Court in S.B. Civil Writ Petition No. 297/1999. I also carefully gone through the Award dated 02.06.1997 passed by the Labour Court, Jaipur including the relevant documents annexed with the review petition and the writ petition. As at the time of deciding the writ petition the counsel for the petitioner was not heard, therefore, the learned counsel for the petitioner was given full liberty and opportunity to advance his arguments in the review petition and I heard the submission made on behalf of the review-petitioner on the merit of the writ petition as well as the review petition. I have heard rival submissions of the respective parties and gone through the order dated 19.12.20006 passed by this Court in the writ petition, against which the present review petition has been preferred by the petitioner. [8] The writ petition was admittedly decided on merit even in absence of the learned counsel for the petitioner and in view of the ratio decided by the Hon'ble Supreme Court, 30% wages awarded in favour of the respondent-workman by the Labour Court, are denied to the respondent-workman as he had not worked during that period and also failed to prove whether he was in gainful employment or not and accordingly the writ petition was partly allowed vide order dated 19.12.2006. Having gone through the impugned Award dated 02.06.1997 passed by the Labour Court, Jaipur, it appears that the Labour Court has thoroughly considered each and every aspect and speaking order has been passed on the basis of the record and ordered to reinstate the respondent- workman, which cannot be said to be contrary to the record and contrary to law. This Court passed the order dated 19.12.2006 after thoroughly considering the averments made in the writ petition and, therefore, it is wrong to say that the averments made in the writ petition and the grounds taken in the writ petition have not been considered by this Court, whereas the same were considered by this Court and only thereafter the order dated 19.12.2006 has been passed by this Court. I am also not convinced with the preliminary objections raised on behalf of the [9] petitioner and the dispute was maintainable before the Labour Court and the Labour Court has rightly exercised its powers in accordance with the provisions of law while passing the impugned Award dated 02.06.1997. In view of the aforesaid observations and in the facts and circumstances of the case, I find no merit in the review petition. Consequently, the review petition fails being devoid of merit and the same is hereby dismissed without interfering with the order dated 19.12.2006 passed by this Court. (K.S. RATHORE),J. /KKC/ (Reserved)