COURT NO.2 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) 220/2002 Garhwal Jal Sansthan, Dehradun …….Petitioner Versus Presiding Officer, Labour Court, Dehradun And Other. …….Respondents Sri Rakesh Thapliyal, learned Counsel for the petitioner. Sri Gopal Narain, learned Counsel for the workman/respondent no. 2. 30th July, 2008 Hon’ble P.C. Verma, J. Present writ petition is directed against the award dated 5.1.2002 passed by the Labour Court, Dehradun in adjudication case no. 187 of 2000, 2. Facts, in brief, are that Sri Chaman Joshi, workman/respondent no. 2 was appointed on the post of Assistant Meter Inspector vide order dated 2.8.1978. Subsequently he was confirmed on the said post. The workman had preferred a writ petition no. 29532 of 1990 before Allahabad High Court claiming the scale of Meter Inspector, which was dismissed on the ground of alternative remedy. Thereafter, on 26.8.1999, workman/respondent no. 2 filed an application claiming pay scale of Meter Inspector, which was registered as an Industrial Dispute. 3. Vide the order dated 31.3.2001, the aforesaid industrial dispute raised by the workman was rejected by the Labour Court holding that in view of Section 27 of 2 U.P. Water Supply and Sewerage Act, 1975, there is no sanctioned post of Meter Inspector. Hence, the workman was not entitled for grant of pay scale of the said post. The award dated 31.3.2001 passed by the Labour Court is contained in Annexure No. 5 to the writ petition. 4. Thereafter workman preferred a review application for reviewing the aforesaid award dated 31.3.2001. Petitioner filed objection that review is not admissible and is not maintainable in law in view of the provisions of the U.P. Industrial Disputes Act. The aforesaid review application was allowed and an award dated 5.1.2002 was passed by the Labour Court which was published on 31.1.2002, which is being challenged in the instant writ petition. By the award dated 5.1.2002, Annexure 8 to the writ petition, the reference was decided in affirmative in favour of the workman/respondent no. 2 holding that the workman is entitled to get the scale of Meter Inspector w.e.f. 1.5.1978. 5. The impugned award of the Labour Court has been assailed mainly on two grounds, firstly that the Labour Court has got no power to review its own award and, secondly, that there does not exist any post of Meter Inspector in the department and, therefore, the Labour Court erred in holding that the workman is entitled to get the pay scale of Meter Inspector relying upon the resolution dated 16.5.1981, which was not approved by the State Government. In contrast, learned Counsel for the workman submitted that vide the earlier order dated 31.3.2001, the Labour Court had not decided the dispute on merits and held that the reference is bad in law as on the date of reference no cause of action existed and 3 hence, the dispute is not an industrial dispute. Learned Counsel for the workman further submitted the aforesaid award dated 31.3.2001 was not published and, therefore, Labour Court was empowered to recall its earlier order which was not passed on merit. It was not review on merit rather it was only a procedural review. 6. Reliance has been placed on the judgment delivered by Hon’ble Apex Court in the case of Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Others reported in AIR 1981 SC 606, wherein Supreme Court has observed as under: “Furthermore, different considerations arise on review. The expression ‘review’ is used in the two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a mis-apprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the fact of the record. It is in the later sense that the court in Patel Narshi Thakershi case held that no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debita justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal”. 4 7. Applying aforesaid principles, the Hon’ble Supreme Court in the case of Kapra Mazdoor Ekta Union v. Management of M/s Birla Cotton Spinning and Weaving Mills Ltd. and Others reported in 2005 AIR SCW 1561 observed as under: “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 proceedings 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 5 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 reheard 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.” 8. Learned Counsel for the Respondent did not dispute the legal position as it emerges from these two judgments. In view of the aforesaid legal position, it is abundantly clear that if the dispute is not decided on merit then the court can decide the case by reviewing the earlier order which comes under the procedural review. Hence, Labour Court has legally reviewed its earlier award. 6 9. Submission of the learned Counsel for the petitioner that there is no sanctioned post of Meter Inspector and, therefore, workman is not entitled to get the pay scale of the said post is without any substance. Undisputedly, workman was sanctioned the pay scale of Meter Inspector and he was being paid in the said scale after the change of designation of Assistant Meter Inspector to Meter Inspector. Workman was even allowed to cross the efficiency bar in the scale of Meter Inspector. The designation of the workman in the pay bills has been shown as Meter Inspector. Labour Court has rightly come to the conclusion that the workman is entitled to get the pay scale of the post of Meter Inspector. I do not find any illegality or infirmity in the impugned award dated 5.1.2002 passed by the Labour Court. The Labour Court has passed the impugned award after proper and exhaustive examination of the matter and in correct perspective of law. 10. In the result, I find no merit in the writ petition and the same is accordingly dismissed, but with no order as to costs. (P.C. Verma, J.) 30.7.2008 Prabodh