STATE BANK OF TRAVANCORE vs PREM SINGH

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order : 18th October, 2023
+ W.P.(C) 11160/2004
STATE BANK OF TRAVANCORE ….. Petitioner
Through: Mr.Buddy A.Ranganadhan and Ms. Nandini Tomar, Advocates

versus
PREM SINGH ….. Respondent
Through: Mr.__, Advocate (Appearance not given)
CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

ORDER

CHANDRA DHARI SINGH, J (Oral)

REVIEW PET. 247/2019
1. The instant review petition under Section 114 read with Section 151 of the Code of Civil Procedure, 1908, (hereinafter “CPC”), has been filed on behalf of the applicant/respondent seeking the following relief-
“In view of the above submissions and in the best interest of justice, it is, therefore, graciously be prayed that the order/judgment dated 10.04.2019 be relooked into and reviewed for the quantum of compensation granted to the applicant.”

2. The background of the instant petition is that the respondent was employed with the petitioner bank initially as a peon and during the course of employment, the respondent got promoted to a bill collector. While the respondent was employed as a bill collector, a complaint was registered by a customer of the petitioner bank, whereby, the respondent had made withdrawals without the consent of the said customer. On the basis of the said complaint, a confession letter was taken, and the services of the respondent were terminated w.e.f. 26th October 1993.
3. Thereafter, the respondent raised an industrial dispute, which was decided in his favour, whereby, vide award dated 19th April 2004, the petitioner bank was directed to reinstate the respondent with 50% back wages. Consequently, the petitioner bank filed a writ petition and vide order dated 10th April 2019 (hereinafter “impugned order”), this Court held that the respondent was not entitled to the relief of reinstatement, owing to the unauthorised transactions made by him.
4. Aggrieved by the impugned order dated 10th April 2019, the respondent has preferred the present review petition seeking review of the same.
5. Learned counsel appearing on behalf of the applicant/respondent submitted that the compensation awarded vide the impugned order, whereby, this Court applied the principles laid down in numerous judgements based on plea of loss of confidence, was inadequate and unreasonable.
6. It is submitted that the matter should be reproached with a practical point of view and the respondent should be granted adequate relief with regard to the question of quantification of the compensation, bearing in mind that 26 years have passed since the respondent was terminated.
7. It is submitted that while awarding the compensation to the tune of Rs.1,00,000/-, this Court failed to take into account that the petitioner bank had already paid an amount of Rs.3,00,000/-, as per Section 17(b) of the Industrial Disputes Act, 1947, and the same ought not to have been added to the compensation amount.
8. It is further submitted that it is an established legal principle that interim wages, which were granted during the pendency of a challenge of such awards, are considered akin to non-refundable subsistence allowances intended to sustain the livelihood of the individual.
9. In view of the foregoing submissions, it is prayed that the present petition may be allowed.
10. Per contra, learned counsel appearing on behalf of the non-applicant/petitioner vehemently opposed the arguments advanced on behalf of the respondent, submitting to the effect that this Court had passed the impugned order after taking into consideration all the facts and law applicable to the case.
11. It is submitted that this Court rightly held that the respondent cannot be reinstated as the petitioner bank had lost the confidence in the respondent.
12. It is also submitted that this Court directed the petitioner bank to give the respondent Rs.1,00,000/-, as compensation in furtherance of the Rs.3,00,000/-, which was already paid by the petitioner bank.
13. It is submitted that this Court upheld the termination of the respondent and the order has now attained finality, moreover, the review petition is limited only to the question of compensation and not to the finding or conclusion of the impugned order.
14. It is further submitted that interim wages as under Section 17B of the Industrial Disputes Act, 1947, are in nature of non-refundable subsistence allowance and hence, it cannot be said to be unreasonable or inadequate.
15. In view of the aforementioned submissions, it is prayed that the present petition may be dismissed.
16. Heard the parties and perused the record.
17. It has been contended by the respondent that he has preferred the instant review petition being aggrieved by the impugned order dated 10thApril 2019, passed in the writ petition bearing No.11160/2004, whereby, this Court held that the respondent was not entitled to the relief of reinstatement as the petitioner bank lost confidence in the respondent, owing to the unauthorised transactions made by him. This Court had further directed the petitioner bank to pay Rs.1,00,000/-, as compensation to the respondent in furtherance of the Rs.3,00,000/-, already paid by the petitioner bank.
18. It is the case of the applicant/respondent, that the compensation awarded to him vide the above said impugned order is unreasonable and inadequate and the sum of Rs. 3,00,000/-, ought not to have been added in the compensation amount.
19. In rival contentions it was submitted by the non-applicant/petitioner bank that the interim wages as under Section 17B of the Industrial Disputes Act, 1947, are in nature of non-refundable subsistence allowance and this Court took into consideration all the facts and evidence while adjudicating the writ petition.
20. Before proceeding to adjudicate upon the issues raised in the instant review petition, this Court deems it appropriate to discuss the settled legal propositions.
21. This Court is of the view that the Courts cannot exercise their power of review, beyond the limitations of Order XLVII of the CPC. Cases wherein an apparent error on the face of the record has been pointed out by way of the review petition, may be considered as a ground for review under Section 114 of the CPC. Errors which are not self evident and are to be detected by a process of reasoning cannot be a ground for review under Section 114 of the CPC. As per the settled rule of law, once an order or judgment has been passed, it attains finality and filing of frivolous review petitions is an abuse of the due process of law.
22. Section 114 of the CPC, provides the right to review a judgment/ order, however, the conditions and limitations applicable on the same are enumerated under Order XLVII of the CPC. The scope and ambit of the said provisions has been discussed by the Hon’ble Supreme Court in a catena of judgments. In judgment dated 3rd September 2020, passed in case titled, Vijay Kurleand Ors vs Unknown, Suo Moto Contempt Petition (Criminal) No. 2 of 2019, the Hon’ble Supreme Court discussed the scope of review at length. The relevant paragraphs have been reproduced herein:
“9. In a country governed by the rule of law, finality of the judgment is absolutely imperative and great sanctity is attached to the finality of the judgment. Permitting the parties to reopen the concluded judgments of this Court by filing repeated interlocutory applications is clearly an abuse of the process of law and would have far-reaching adverse impact on the administration of justice.”
11. The attempt in the present miscellaneous application is clearly to seek a substantive modification of the judgment of this Court. Such an attempt is not permissible in a miscellaneous application. While Mr Mukul Rohatgi, learned senior counsel has relied upon the provisions of Order LV Rule 6 of the Supreme Court Rules 2013, what is contemplated therein is a saving of the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent an abuse of the process of the Court.Order LV Rule 6 cannot be inverted to bypass the provisions for review in Order XLVII in the Supreme Court Rules 2013. The Miscellaneous application is an abuse of the process.”

23. Similarly, in case titled Suraj Pal v. Ram Manorath, (2017) 14 SCC862, the Hon’ble Supreme Court held as under:
“6. As far as the scope of review is concerned, if a court finds that it has committed an error which is apparent on the face of the record and that error is pointed out to it in a review petition, there is nothing which prevents the court from correcting the error. In the judgment initially passed by the learned Single Judge, the court did not take into consideration the arguments raised that this portion of land was “chakout” and therefore, was not part of the consolidation scheme. Therefore, the learned Single Judge was justified in reconsidering the matter.”

24. Further, in a recent case titled Ram Sahu v. Vinod Kumar Rawat, (2021) 13 SCC 1, the Hon’ble Supreme Court, while taking into consideration its previous decisions surrounding the scope of the aforesaid provisions, has observed as follows:
“7. While considering the aforesaid question, the scope and ambit of the Court’s power under Section 114 read with Order 47 Rule 1CPC is required to be considered and for that few decisions of this Court are required to be referred to.
This extract is taken from Ram Sahu v. Vinod Kumar Rawat, (2021) 13 SCC 1 : (2023) 2 SCC (Civ) 686 : 2020 SCC OnLine SC 896 at page 15
7.1. In Haridas Das v. Usha Rani Banik [Haridas Das v. Usha Rani Banik, (2006) 4 SCC 78] while considering the scope and ambit of Section 114CPC read with Order 47 Rule 1CPC it is observed and held in paras 14 to 18 as under : (SCC pp. 83-84)
“14. In Meera Bhanja v. Nirmala Kumari Choudhury [Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170] it was held that : (SCC pp. 172-73, para 8)
‘8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. In connection with the limitation of the powers of the court under Order 47 Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma [Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389] speaking through Chinnappa Reddy, J. has made the following pertinent observations : (SCC p. 390, para 3)
“3. … It is true … there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court.” ’
* * *
15. A perusal of Order 47 Rule 1 shows that review of a judgment or an order could be sought : (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of the record or any other sufficient reason.
16. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma [Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389] , this Court held that there are definite limits to the exercise of power of review. In that case, an application under Order 47 Rule 1 read with Section 151 of the Code was filed which was allowed and the order passed by the Judicial Commissioner was set aside and the writ petition was dismissed. On an appeal to this Court it was held as under : (SCC p. 390, para 3)
‘3. It is true as observed by this Court in Shivdev Singh v. State of Punjab [Shivdev Singh v. State of Punjab, AIR 1963 SC 1909] there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court.’
17. The judgment in Aribam case [Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389] has been followed in Meera Bhanja [Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170] . In that case, it has been reiterated that an error apparent on the face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any long-drawn process of reasoning. The following observations in connection with an error apparent on the face of the record in Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale [Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137] were also noted : (AIR pp. 141-42, para 17)
‘17. … An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.’
18. It is also pertinent to mention the observations of this Court in Parsion Devi v. Sumitri Devi [Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715] . Relying upon the judgments in Aribam [Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389] and Meera Bhanja [Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170] it was observed as under : (SCC p. 719, para 9)
‘9. Under Order 47 Rule 1CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be ‘reheard and corrected’. A review petition, it must be remembered has a limited purpose and cannot be allowed to be ‘an appeal in disguise’.’ ”
7.2. In Lily Thomas v. Union of India [Lily Thomas v. Union of India, (2000) 6 SCC 224 : 2000 SCC (Cri) 1056] , it is observed and held that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. It is further observed in the said decision that the words “any other sufficient reason” appearing in Order 47 Rule 1CPC must mean “a reason sufficient on grounds at least analogous to those specified in the rule” as was held in Chhajju Ram v. Neki [Chhajju Ram v. Neki, 1922 SCC OnLine PC 11 : (1921-22) 49 IA 144 : AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Mar Poulose Athanasius [Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, AIR 1954 SC 526] .”

25. At this juncture, it becomes imperative to analyse the facts of the instant petition qua the scope of review.
26. In the instant petition, the aspect of review revolves solely around the compensation being inadequate and unreasonable which does not fall under the ambit of review, as per the guidelines laid down by the Hon’ble Supreme Court in a catena of judgments. As per the aforesaid judgments, it is evident that the Courts can only exercise their power of review, in the event that an apparent error has been detected and been brought forth by way of the review petition. As discussed, the respondent herein is seeking review only with regard to the back wages being unreasonable and the same is not an apparent error, as this Court adjudicated the same, after taking into consideration all facts, documents and submissions made by the respective parties.
27. In order to further adjudicate the present review petition, it is apposite to analyse Section 17B of the Industrial Disputes Act, 1947. The same is reproduced herein:
“17B. Payment of full wages to workman pending proceedings in higher courts.–Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court:
Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be.]”

28. A bare reading of the aforementioned Section essentially states that in cases, wherein, any competent Court, Tribunal or any National Council, through its award, orders the reinstatement of a workman, and if the employer initiates legal proceedings against such an award in a High court or the Hon’ble Supreme Court, the employer shall be liable to pay the employee the full wages he was last earning, including any subsistence allowance provided by regulations if the employee was not employed elsewhere during that period and if the employee had submitted a sworn statement to that effect in the court. However, if it can be proven to the satisfaction of the concerned Court that the workman was indeed employed and was receiving adequate wages during any part of that period, the Court may decide that no wages are payable under this Section for that specific period or portion thereof, as the case may be.
29. The law surrounding interim wages as under Section 17B of the Industrial Disputes Act, 1947, is well settled. The Hon’ble Supreme Court in case titled Dena Bank v. Kiritikumar T. Patel, (1999) 2 SCC 106, held as follows:
“21. As indicated earlier Section 17-B has been enacted by Parliament with a view to give relief to a workman who has been ordered to be reinstated under the award of a Labour Court or the Industrial Tribunal during the pendency of proceedings in which the said award is under challenge before the High Court or the Supreme Court. The object underlying the provision is to relieve to a certain extent the hardship that is caused to the workman due to delay in the implementation of the award. The payment which is required to be made by the employer to the workman is in the nature of subsistence allowance which would not be refundable or recoverable from the workman even if the award is set aside by the High Court or this Court. Since the payment is of such a character, Parliament thought it proper to limit it to the extent of the wages which were drawn by the workman when he was in service and when his services were terminated and therefore used the words “full wages last drawn”. To read these words to mean wages which would have been drawn by the workman if he had continued in service if the order terminating his services had not passed since it has been set aside by the award of the Labour Court or the Industrial Tribunal, would result in so enlarging the benefit as to comprehend the relief that has been granted under the award that is under challenge. Since the amount is not refundable or recoverable in the event of the award being set aside, it would result in the employer being required to give effect to the award during the pendency of the proceedings challenging the award before the High Court or the Supreme Court without his being able to recover the said amount in the event of the award being set aside. We are unable to construe the provisions contained in Section 17-B to cast such a burden on the employer. In our opinion, therefore, the words “full wages last drawn” must be given their plain and material meaning and they cannot be given the extended meaning as given by the Karnataka High Court in Visveswaraya Iron & Steel Ltd. [(1994) 84 FJR 46 : (1994) 1 LLJ 555 (Kant)] or the Bombay High Court in Carona Sahu Co. Ltd. [(1995) 70 FLR 25 : (1994) 2 LLN 834 (Bom)]
22. Shri Jitendra Sharma has laid emphasis on the word “full” in the expression “full wages last drawn” and has submitted that the said word implies that the wages last drawn must be the wages which the workman would have drawn under the award. We are unable to agree. In our opinion, the expression “full” only emphasises that all the emoluments which are included in “wages” as defined in clause (rr) of Section 2 of the Act so as to include the amounts referred to in sub-clauses (i) to (iv) are required to be paid. In this context, it may also be mentioned that in Section 17-B Parliament has also used the words “inclusive of any maintenance allowance admissible to him under any rule”. These words indicate that maintenance allowance that is admissible under any rule is required to be paid irrespective of the amount which was actually being paid as maintenance allowance to the workman. But with regard to wages, Parliament has used the words “full wages last drawn” indicating that the wages that were actually paid and not the amount that would be payable are required to be paid.
23. As regards the powers of the High Court and the Supreme Court under Articles 226 and 136 of the Constitution, it may be stated that Section 17-B, by conferring a right on the workman to be paid the amount of full wages last drawn by him during the pendency of the proceedings involving challenge to the award of the Labour Court, Industrial Tribunal or National Tribunal in the High Court or the Supreme Court which amount is not refundable or recoverable in the event of the award being set aside, does not in any way preclude the High Court or the Supreme Court to pass an order directing payment of a higher amount to the workman if such higher amount is considered necessary in the interest of justice. Such a direction would be dehors the provisions contained in Section 17-B and while giving the direction, the court may also give directions regarding refund or recovery of the excess amount in the event of the award being set aside. But we are unable to agree with the view of the Bombay High Court in Elpro International Ltd. [1987 Lab IC 1468 : (1987) 2 LLJ 210 : (1987) 1 LLN 695] that in exercise of the power under Articles 226 and 136 of the Constitution, an order can be passed denying the workman the benefit granted under Section 17-B. The conferment of such a right under Section 17-B cannot be regarded as a restriction on the powers of the High Court or the Supreme Court under Articles 226 and 136 of the Constitution.”

30. In the case titled Dena Bank (Supra), the Hon’ble Supreme Court analysed Section 17B of the Industrial Disputes Act, 1947, thereby, stating that the said provision was enacted by the Parliament to provide relief to workmen who are reinstated by virtue of a labour Court or industrial tribunal’s award while the award is being challenged in a higher Court. The purpose is to ease the hardship faced by the workman due to the delay in award implementation. The payment, the employer makes is subsistence allowance, which is not refundable even if the said award is overturned. It is restricted to the worker’s pre-termination pay and not prorated to reflect what the worker would have made in the absence of termination. This prevents the employer from having an undue financial burden while the award is under challenge before a higher Court.
31. Adverting back to the facts of the present petition, it has been contended by the party seeking review of the impugned order, i.e., the respondent, that the compensation granted to him was inadequate and unreasonable and the sum of Rs. 3,00,000/-, ought not to have been added to the compensation amount, however, it was contended by the non-applicant, i.e., the petitioner, that the interim wages as under Section 17B of the Industrial Disputes Act, 1947, are in nature of non-refundable subsistence allowance and therefore, does not warrant this Court’s intervention.
32. In view of the above facts and scenarios, and the review jurisdiction of this Court, I do not find any cogent reason to interfere with the impugned order dated 10th April 2019.
33. This Court, after giving due consideration to the facts of the case, adjudicated the same. The party seeking review cannot claim that the interim wages provided by the petitioner bank are unreasonable and inadequate as the same is not an error which is to be rectified by this Court.
34. Accordingly, the instant petition stands dismissed along with pending applications if any.
35. The order be uploaded on the website forthwith.

CHANDRA DHARI SINGH, J
OCTOBER 18, 2023
Dy/ds/ryp
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