TMI Blog2005 (3) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Mills Limited was allowed and the order dated February 19, 1990 passed by the Presiding Officer, Industrial Tribunal No. II, Delhi was quashed. By the said order the Industrial Tribunal had in effect recalled its Award of June 12, 1987 and framed an additional issue to be tried by the Tribunal. The High Court held that the Award dated June 12, 1987 had effectively terminated the industrial dispute referred to the Tribunal by the appropriate Government on December 13, 1982. With a view to appreciate the submissions urged before us it would be necessary to notice the factual background in which these questions have arisen. The appellant-Union is one of the eight Unions representing the workers employed in the respondent-Company. In the year 1982 on account of closure of some looms of the Weaving Section of the Mill disputes arose between the workmen and the Management of the respondent-Company. The appropriate Government in exercise of its powers conferred by Section 10(1)(d) and 12(5) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') referred the said disputes to the Industrial Tribunal, Delhi vide Notification dated December 13, 1982. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustrial Tribunal, Delhi with a request to accept the terms of the settlement as fair and reasonable and to give its award in terms of the settlement in the disputes pending before it pursuant to the reference made on December 13, 1982. The application made by the Management for passing an award in terms of the settlement dated May 17, 1983 was opposed by the appellant-Union on various grounds. It was submitted by the appellant-Union that only two of the Unions had signed the settlement who represented a very insignificant number of workmen. The settlement was a private settlement and the workers who were not members of those two Unions were not bound by the settlement. It was further submitted that in May, 1983, when the settlement is said to have been arrived at, no conciliation proceedings were pending before the Conciliation Officer and, therefore, the Conciliation Officer had no power or justification to record such a settlement, particularly during the pendency of the earlier reference. It was also the case of the appellant-Union that the settlement did not settle the disputes which had been referred to the Tribunal for adjudication. The settlement was unfair and unjust to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen other disputes arose between the parties and the industrial peace was disturbed. It noticed the fact that in the instant case a notice of strike was given on February 14, 1983 and a notice of closure of a part of the undertaking on April 4, 1983. The workers were disturbed and the atmosphere was surcharged. In this background if the Conciliation Officer intervened in an attempt to bring about a settlement, it cannot be contended that he had no jurisdiction to do so. In fact the Labour Department was not only justified but legally competent and compelled to set the conciliation proceedings in motion so as to restore industrial peace. Having found that the settlement was brought about in the course of conciliation proceedings, the Tribunal considered the terms of settlement and recorded the following conclusion :- I have carefully gone through the terms of the settlement. These are not only well bargained but quite detailed and very sound in the circumstances obtaining. It's various items made provision for meeting all the relevant problems of relief and rehabilitation of the affected workers because of the closure of weaving section of the mill and envisages an exper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the respondent-Management, but the successor Presiding Officer of Industrial Tribunal No.II, Delhi allowed the application. It observed that a perusal of the order dated June 12, 1987 showed that the then Tribunal did not make a single observation as to whether the settlement dated May 17, 1983 was just and fair. No issue was framed nor any evidence was recorded on that point. No argument was advanced and no finding was given by his learned predecessor on this point. Relying upon the judgment of this Court in Satnam Verma vs. Union of India : 1984 (supp) SCC 712 and Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others : 1980 (Supp) SCC 420 it was held that where the Tribunal proceeds to make an Award without notice to a party, the Award is a nullity and, therefore, the Tribunal has not only the power but also the duty to set aside such an ex-parte Award. It was held that in the instant case no arguments were advanced and no finding was given as to whether the settlement was just and fair. In view of its finding that the Tribunal has power to review its Award even if the same is published in the Gazette, the Tribunal proceeded to exercise its power to review ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of its publication under Section 17 of the Act. Thus the Award would have become enforceable with effect from September 9, 1987. However, the application for recalling the Award was made on September 7, 1987 i.e. 2 days before the Award would have become enforceable in terms of sub-section (1) of Section 17A of the Act. The High Court rightly took the view that since the application for recall of the order was made before the Award had become enforceable, the Tribunal had not become fuctus offico and had jurisdiction to entertain the application for recall. This view also find supports from the judgment of this Court in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra). This Court after noticing the provisions of sub-section (3) of Section 20 of the Act which provides that the proceedings before the Tribunal would be deemed to continue till the date on which the Award become enforceable under Section 17A, held that till the Award becomes enforceable the Tribunal retains jurisdiction over the dispute referred to it for adjudication, and up to that date it has the power to entertain the application in connection with such dispute. The jurisdiction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Central Government Industrial Tribunal and others (supra) that even in the absence of an express power of review, the Tribunal had the power to review its order if some illegality was pointed out. The submission must be rejected as misconceived. The submission does not take notice of the difference between a procedural review and a review on merits. This Court in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra) clearly highlighted this distinction when it observed :- 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 face of the record. It is in the latter 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g at the hearing due to sufficient cause, it followed that the matter must be re-heard and decided again. The facts of the instant case are quite different. The recall of the Award of the Tribunal was sought not on the ground that in passing the Award the Tribunal had committed any procedural illegality or mistake of the nature which vitiated the proceeding itself and consequently the Award, but on the ground that some mattes which ought to have been considered by the Tribunal were not duly considered. Apparently the recall or review sought was not a procedural review, but a review on merits. Such a review was not permissible in the absence of a provision in the Act conferring the power of review on the Tribunal either expressly or by necessary implication. Learned counsel for the appellant then sought to argue that there was no conciliation proceeding in progress when the alleged settlement is said to have been reached on May 17, 1983. The submission ignores the findings of fact recorded by the Tribunal in its order dated June 12, 1987 that while the reference was pending before the Tribunal certain events took place which compelled the Deputy Labour Commissioner-cum-Concili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Conciliation Officer intervened when there was considerable labour unrest and brought the parties to the negotiating table. Several meetings were held, some of them in the chambers of higher officials of the Labour Department, and ultimately a settlement was worked out. This is quite apparent from the fact that the terms of settlement has also been signed by the Conciliation Officer, apart from the representatives of the Management and representatives of the two workers' Union. We entertain no doubt that the settlement was brought about in the course of conciliation proceedings with the assistance and concurrence of the Conciliation Officer. It was also urged before us by the learned counsel for the appellant that the Tribunal ought to have considered, while passing an Award on June 12, 1987, that the settlement was just and fair and protected the interest of the workmen. The recall of the order was sought on the ground that this aspect of the matter had not been considered when an Award was made in terms of the settlement. This was precisely the ground on which the Tribunal entertained the application for recall and allowed it by order dated February 19, 1990. The Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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