Holding

The Tribunal was not functus officio because the recall application was filed before the award became enforceable, but it lacked power to review the award on merits as the Industrial Disputes Act does not confer such authority.

Summary

The Kapra Mazdoor Ekta Union challenged the Industrial Tribunal’s recall of its award dated 12 June 1987, which was based on a settlement reached on 17 May 1983 during conciliation proceedings. The union filed an application for recall on 7 September 1987, two days before the award became enforceable under Section 17A of the Industrial Disputes Act, 1947. The Tribunal entertained the application and, on 19 February 1990, recalled the award, prompting the Management to obtain a writ quashing the recall. The Supreme Court held that because the recall application was filed before the award became enforceable, the Tribunal was not functus officio and retained jurisdiction; however, the recall amounted to a review on merits, which the Act does not empower the Tribunal to undertake. Consequently, the Tribunal’s recall order was invalid and the appeal was dismissed.

Issues considered

Whether the Industrial Tribunal was functus officio at the time the recall application was filed, i.e., whether the award had become enforceable under Section 17A of the Industrial Disputes Act.
Whether the Tribunal possessed jurisdiction to recall or review its award, given that the recall sought a review on merits rather than a procedural defect.

Legislation cited

Industrial Disputes Act, 1947s. 17, s. 17A, s. 18, s. 20

Subjects

Industrial disputeAward recallFunctus officioReview on meritsIndustrial Disputes ActConciliation settlementTribunal jurisdiction

Judgment

__....,
A KAPRA MAZDOOR EKTA UNION
v.
MANAGEMENT OF M/S. BIRLA COTTON SPINNING AND
WEA YING MILLS LTD. AND ANR.

MARCH 16, 2005
B
[N. SANTOSH HEGDE, B.P. SINGH AND S.B. SINHA, JJ.] -~-

labour laws-Industrial Disputes Act, 1947 :

c Sections I I, 17 and 17A-Application for recall/review ofAward passed ._,
by Tribunal-Application made two days before the Award would have become
enforceable-Jurisdiction of Tribunal to entertain the application-Held: The
Tribunal had not become func,tus officio on the date of the application, hence,
had jurisdiction to entertain the application.
D Section 1I-Recall/review ofAward passed by Tribunal sought on ground
that some matters which ought to have been considered by the Tribunal were
not considered-Ju...isdiction of Tribunal to recall/review the Award-Held:
The recall/review sought was not a procedural review, but a review on merits-
Such a review was not permissible in absence of a provision in the Act
E conferring the power ofreview on the Tribunal either expressly or by necessary ·,
implication.
~
"Procedural review" and "Review on merits"-Distinction between-
Discussed

Disputes arose between the workmen and management of
----
F
respondent-company on account of closure of some looms in its weaving
section. While reference of the dispute was pending before the Industrial
Tribunal, a settlement was arrived at between the management and the
workmen on May 17, 1983. Management filed application for passing an ~

I
Award in terms of the settlement, which the Appellant-trade union
G '
opposed. Matter ultimately came before this Court which directed the
Tribunal to adjudicate. The Tribunal passed a detailed reasoned Award
---,
on June 12, 1987 holding that the settlement of May 17, 1983 was reached
in the course of conciliation proceedings and was hence binding on all the
workers of the respondent-Company. The Award was duly published by
H 888
KAPRA MAZDOOR EKTA UNION '"MGMT. OF BIRLA COTT. SPIN. AND WEA V. MILLS 889
the appropriate Government in the Gazette on August 10, 1987. A
On September 7, 1987 the appellant-Union tiled an application before
the Tribunal contending that the only question which had been argued'
before the Tribunal was in relation to the power and jurisdiction of the
Conciliation Officer to record settlement between the parties during the
pendency of the disputes; and that the other question as to whether the , B
settlement was fair and just was not argued. It was, therefore, prayed that ,
the Award dated June 12, 1987 be recalled and the appellant-Union be
given an opportunity to establish that the settlement was unjust and unfair,
adversely affecting a large number of workmen. Tribunal allowed the .
application by its order dated February 19, 1990. Writ petition filed before , C
High Court for quashing of the order was allowed. Hence the present
appeal.

In appeal to this Court, the questions arising for consideration were-
whether the Tribunal was not functus officio and had jurisdiction to
entertain the application for recall of its earlier Award, which amounted D
virtually to a review.

Dismissing the appeal, the Court

HELD: 1. Under sub-section (1) of Section 17A of the Act an Award
becomes enforceable on the expiry of 30 days from the date of its E
publication under Sectio.n 17 of the Act. In the present case, the Award
was made on June 12, 1987 and published in the Gazette on August 10,
1987. 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. F
On September 7, 1987, the Award had not become enforceable and,
therefore, on that date the Tribunal had jurisdiction over the disputes
referred to it for adjudication. Consequently it had power to entertain an
application in connection with such dispute. [897-F-G; 898-D]

Grindlays Bank Ltd v. Central Government Industrial Tribunal and Ors., G
[1980) (Supp) SCC 420; Satnam Verma v. Union of India, [1984) Supp SCC
712; J.K. Synthetics Ltd. v. Collector of Central Excise, [1996} 6 SCC 92 and
MP. Electricity Board v. Hariram etc., .JT (2004) 8 SC 98, relied on.

2.1. There is a differenc e between a procedural review and a review
1
H
on merits. Cases where a decision is rendered by the Court or quasi-
890 SUPREME COURT REPORTS (2005) 2 S.C.R.

A 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 cases the matter has to be
B re-heard in accordance with law without going into the merit of the order
passed. The order passed is liable to be recalled and reviewed not becaus·e
it is fourtd to be erroneous, but because it was passed in a proceeding which
was itself vitiated by an error ·or procedure or mistake which went to the
root of the matter and invalidated the entire proceeding.
(899-B; 900-B-C)
c Grindlays Bank Ltd v. Central Government Industrial Tribunal and Ors.,
(1980) Supp SCC 420; Dr. (Smt.) Kuntesh Gupta v. Management of Hindu
Kanya Maha Vidyalaya, Sitapur (UP.) and Ors., (1987) 4 SCC525 and Patel
Narshi Thakershi and Ors. v. Pradyumansinghji Arjunsingji, AIR (1970) SC
1273, referred to.
D
2.2. In the present case 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
E some matters 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:
(900-E)
F
3.1. The facts of the case leave no manner of doubt that there was
labour unrest coupled with the fear of strike and closure. The settlement
itself recites the fact that there were series of bipartite and tripartite
meetings between the representatives of the Management and the Unions
in view of toe labour unrest and threat of closing down the operation of
G the weaving department. Meetings were also held in the office of the Chief
Labour Commissioner with a view to resolve the dispute and a meeting
was thereafter held on May 17, 1983 in the office of the Joint Chief Labour
Commissioner (Central) where the representatives of the Management and
the Unions participated ~longwith the officers of the Labour Depatment
H which ultimately resulted in a settlement. All these facts establish beyond
KAPRA MAZDOOR EKTA UNION v MGMT. OFBIRLA COTT. SPIN. AND WEAV. MILLS 891

doubt that there was labour unrest and the Conciliation Officer intervened A
in the matter and made attempts to bring about a settlement. The
submission, therefore, that no conciliation proceeding was in progress
when the settlement was arrived at, must be rejected. There is no doubt
that the settlement was brought about in the course of conciliation
proceedings with the assistance and concurrence of the Conciliation
Officer. (900-H; 901-A-C, G] B
3.2. It was urged 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. This was
precisely the ground on which the Tribunal entertained the application
for recall and allowed it by order dated February 19, 1990. The Tribunal C
proceeded on a factually. incorrect assumption. The High Court rightly
found that the Tribunal while making an Award in terms of the settlement
had in clear terms recorded its satisfaction in its order that the settlement
was fair and just. [901-H; 902-A-B]
3.3. The submission that the settlement did not resolve the disputes b
which were subject matter of reference made to the Tribunal, again
proceeds on a misreading of the settlement. The disputes referred to the
Tribunal mainly arose on account of the Management closing down a large
number of looms which necessitated a curtailment of the work force on
account of which the Management refused to give work to a large number
of workers. Clause 3.2 of the settlement in clear terms deals with the E
dispute relating to the weaving department and other allied departments.
[902-C-D]

The Bata Shoe Co. (P) Ltd. v. D.N. Ganguly and Ors., AIR (1901) SC
1158 ; Workmen of Mis. Delhi Cloth and General Mills Ltd. v. The F
Management of Mis. Delhi Cloth and General Mills Ltd., (1969] 3 SCC 302;
State of Bihar v. D.N. Ganguly and Ors., [1959) 1 SCR 1191; Sirsilk Limited
v. Government of Andhra Pradesh and Anr., AIR (1964) SC 160 and Paraga
Tools Ltd. v. Mazdoor Sabha, (1975) I LLJ 210, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3475 of G
2003.

From the Judgment and Order dated 31.8.2001 of the Delhi High Court
in C.W.P. No. 2084 of 1990.

Vijay K. Jain for the Appellant. H
892 SUPREME COURT REPORTS (2005] 2 S.C.R.

A L. Nageshwar Rao, S. Sukumaran, O.P. Khaitan, A.T. Patra and K.
Rajeev for the Respondents.

The Judgment of the Court was delivered by

B.P. SINGH, J. The appellant Kapra Mazdoor ~kta Union has preferred
B this appeal by special leave whi'h is directed against the judgment and order
of the High Court of Delhi at New Delhi in Civil Writ Petition No. 2084 of
1990 dated August 31, 200 I whereby the writ petition preferred by the
respondent-Management of Mis. Birla Cotton Spinning and Weaving 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
C 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.
D
With a view to appreciate the submissions urged befor.e 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
E 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 IO(I)(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
F Notification dated December 13, 1982. The reference was in the following
tenns : -

'' 1. Whether the action of the Management in refusing duties to a
large number of workers is illegal and/or unjustified, and if so,
what directions are necessary in this regard?
G
2. Whether the Management is justified in closing down a large
number of looms in the mill and if not to what relief the affected
workers are entitled and what further directions are necessary· in
th is respect?"

H
KAPRAMAZDOOREKTA UNION v. MGMT OF BIRLA COTT. SPIN. AND WEAV. MILLS [SINGH, J) 893

While the reference was pending before the Industrial Tribunal, a A
settlement is purported to have been arrived at between the respondent-
Management and its workmen. According to the Management this settle.nent
was reached in the course of conciliatior. proceedings with the assistance and
concurrence of the Conciliation Officer, namely the Deputy Labour
Commissioner-cum-Conciliation Officer, Delhi M. Basai. It is the case of the B
respondent-Management that after reference of the dispute further disputes
arose between the Management and the Workmen and a notice of strike was
served on the Management and some more demands were raised. The notice
of strike was served on February 14, 1983 and the Management on April 4,
1983 gave notice under Section 25FFA of the Industrial Disputes Act for
closing the undertaking relating to the Weaving Mill on account of labour G
trouble resulting in huge financial losses. It is the case of the respondent-
Management that in these circumstances conciliation proceedings commenced
and after great and sustained efforts, a settlement was arrived at between the
Management and its Workmen in the course of conciliation proceedings. The
settlement has been reduced into writing, and it is not disputed that the same D
has been signed by representatives of the Management as well as the
representatives of two Workers' Union as also by the Deputy Labour
Commissioner-cum-Conciliation Officer, M. Basai.

In view of the settlement reached between the parties, an application
was moved before the Industrial Tribunal which was seized of the disputes, E
which were the subject matter of the reference made on December 13, 1982,
with a prayer that in view of the settlement reached between the parties the
Industrial Tribunal may be pleased to give its award in terms of the conciliation
settlement dated May 17, 1983. One of the terms of the settlement was to the
effect that both the parties will present a petition before the Industrial Tribunal,
Delhi with a request to accept the terms of the settlement as fair and reasonable F
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
tenns of the settlement dated May 17, 1983 was opposed by the appellant- G
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 H
894 SUPREME COURT REPORTS (2005] 2 S.C.R.

A 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 the
B workmen and, therefore, not acceptable to the appellant-Union.

The appellant-Union filed a writ petition before the High Court of
Delhi at New Delhi contending that the settlement dated May 17, 1983 was
not a conciliation settlement binding upon all the workmen. The writ petition
was dismissed by the-High Court by its order dated January 3, 1986. The
C matter was brought before this Court in Special Leave Petition (Civil) No.
1526of1985 which was also dismissed by this Court on August 5, 1986 with
the following observations : -

"We have heard learned counsel for the parties. We do not see any
reason why we should entertain this Special Leave Petition at this
D stage. It is conceded that the settlement between the employer and
certain trade Unions has been filed before the Industrial Tribunal to
which a reference of this dispute was made and a settlement was filed
before the Tribunal three years ago. It is for the Industrial Tribunal
to dispose of the question whether the settlement is valid and binding
between the employer and the workmen. It is only after the Industrial
E Tribunal has disposed of the matter that this Court may look into it.
While we dismiss the Special Leave Petition, we may observe that
the Industrial Tribunal should dispose of the question as to the validity
and binding nature of the settlement as expeditiously as possible.
Having regard to the lapse of time which has taken place we trust that
F the Industrial Tribunal will be able to adjudicate on the matter within
three months from today."

In the light of the order of this Court the Industrial Tribunal heard the
parties and passed an Award on June 12, 1987. The Award is a detailed
reasoned Award. The Tribunal took note of the background in which the
G disputes had arisen and the reference made to it. It rejected the argument of
the appellant-Union that once a reference is made, the Labour Department of
the appropriate Government becomes functus officio in the .matter. After
considering to the decisions of this Court in State of Bihar v. D.N. Ganguly
and Ors., [1959] I SCR 1191; Sirsilk Limited v. Government of Andhra
-
H Pradesh and Anr., AIR (1964) SC 160 and Paraga Tools Ltd. v. Mazdoor
KAPRA MAZDOOR EKTA UNION 1•. MGMT. OF BIRLA COTT. SPIN. AND WEAV. MILLS [SINGH. J.) 895

Sabha, (l 975) I LLJ 210 it concluded that merely because a dispute had been A
referred to the Industrial Tribunal for adjudication, it did not prevent the
Conciliation Officer from playing his role when 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. ln this background if the B
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.
c
Having found that the settlement was brought about in the couri;e of
conciliation proceedings, the Tribunal considered the tenns of settlement and
recorded the following conclusion : -

''I have carefully gone through the tenns of the settlement. These
are not only well bargained but quite detailed and very sound in the D
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 expert technical body for deciding on the possibility and
extent of the revival of weaving work in the Mill, under the time E
bound schedule. l find the settlement fair and just."

The Tribunal, therefore, concluded that the settlement of May 17, 1983
was a settlement reached between the Workmen and the Management in the
course of conciliation proceedings and hence binding on all the workers of
the respondent-Company. lt proceeded to decide the reference declaring1 that F
the disputes stood settled as between the parties by a valid and biil~ing
settlement dated May 17, 1983 and thus the reference had been rendered
redundant. There was no dispute surviving and no purpose was left in making
the tenns of a valid and binding settlement of 1983 as a part of the award,
as all the agreed terms should stood executed and implemented. The order of
the Industrial Tribunal making the Award is of June 12, 1987. The said G
Award was duly published by the appropriate Government in the Gazette on
August 10, 1987.

On September 7, 1987 the appellant-Union filed an application before
the Industrial Tribunal to the effect that the only question which had been H
argued before the Tribunal was in relation to the power and jurisdiction of
•

896 SUPREME COURT REPORTS [2005) 2 S.C.R.

A the Conciliation Officer to record settlement between the parties during the
pendency of the disputes. The question as to whether the settlement was fair
and just, and should be accepted by the Tribunal, was not argued since that
required evidence. It was, therefore, understood that the said question will be
decided later on in case the Tribunal held that the Conciliation Officer had
B jurisdiction to record the settlement. Under some misconception the Tribunal
had determined the terms of the settlement to be fair and just and had passed
an Award on June 12, 1987. It was, therefore, prayed that the appellant-
Union be given an opportunity to establish that the settlement was neither
just nor fair. For this purpose the Award may be recalled and the appellant-
Union be given an opportunity to establish that the settlement is unjust and
C unfair, adversely affecting a large number of workmen. It was prayed that the
Award may be recalled which was in fact an ex-parte Award, and the question
of fairness of the settlement be decided after pr-oviding an opportunity to the
parties to produce evidence.

This application filed by the appellant-Union was strongly opposed by
D 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
E 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 v. Union of India, : [1984] Supp SCC 712 and Grindlays Bank Ltd
v. Central Government Industrial Tribunal and Ors., [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
F 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 ifthe same is published
in the Gazette, the Tribunal proceeded to exercise its power to review its
G earlier order dated June 12, 1987. It further framed an additional issue which
is as follows : -

"Whether the settlement dated 17.5.1983 is just and fair and if so, is I
'
it not binding on the parties?"

G It further directed that only arguments shall be heard since there was no need •
KAPRA MAZDOOR EKTA UNION v. MGMT. OF BIRLA COTT. SPIN. AND WEAV. MILLS [SINGH, J.) 897
to record evidence on this point. Accordingly by its order of Febmary 19, A
1990 the Industrial Tribunal decided to review its earlier order and framed
an additional issue as to whether the settlement was just and fair.

The Management-respondent herein preferred a writ petition before the
High Court of Delhi at New Delhi and sought quashing of the order dat~d
February 19, 1990 passed by Industrial Tribunal No. II, Delhi, and for B
declaration that the Award dated June 12, 1987 earlier made by the Tribunal
effectively terminated the reference pending before it. The High Court by its
impugned judgment and order allowed the writ petition and granted the reliefs
prayed for. The judgment and order of the High Court has been impugne~
before us in this appeal. C
The core question which arises for consideration is whether the Industrial
Tribunal was justified in recalling the earlier Award made on June 12, 1987
and in framing an additional issue for adjudication by the Tribunal. According
to the appellant the recall of the order was fully justified in the facts of the
case, while the respondents contend to the contrary. Two issues arise for our, D
consideration while considering the legality and propriety of the Tribunal in '
recalling its earlier Award. Firstly - whether the Tribunal had jurisdiction to
recall its earlier order which amounted virtually to a review of its earlier
order; and secondly - whether the Tribunal had no jurisdiction to entertain
the application for recall as it had become functus offico. The High Court
answered the first question in favour of the respondent-Management and the .E
second in favour of the appellant.

We shall first take up the second question namely - whether the Tribunal
was functus offico having earlier made an Award which was published by the
appropriate Government. It is not in dispute that the Awa~d was made on F
June 12, 1987 and was published in the Gazette on August IO, 1987. The
application for recall was made on September 7, 1987~ Under sub-section (I)
of Section 17 A of the Act an Award becomes enforceable on the expiry of
30 days from the date 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 G
September 7, 1987 i.e. 2 days before the Award would have become
enforceable in terms of sub~section (I) 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 H
898 SUPREME COURT REPORTS [2005] 2 S.C.R.

A recall. This view also find supports from the judgment of this Court in
Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors.,
(supra). This Court after noticing the provisions of sub-section (3) of Section
20 of the Act which provides thatthe proceedings before the Tribunal would
be deemed to continue till the date on which the Award become enforceable
under Section 17 A, 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 of the Tribunal had to be seen on the date of the
application made to it and not the date on which it passed the impugned
order. The judgment in Grindlays Bank Ltd. v. Central Government Industrial
C Tribunal and Ors., (supra) has been reiterated by this Court in Satnam Verma
v. Union of India, (supra), J.K. Synthetics Ltd. v. Collector of Central Excise,
[1996] 6 SCC 92 and MP. Electricity Board v. Hariram etc., JT (2004) 8 SC
98.

In the instant case as well we find that as on September 7, 1987 the
D Award had not become enforceable and, therefore, on that date the Tribunal
had jurisdiction over the disputes referred to it for adjudication. Consequently
it had the power to entertain an application in connection with such dispute.
The order of recall passed by the Tribunal on February 19, 1990, therefore,
cannot be assailed on the ground that the Tribunal had become fuctus offico.
E
The question still remains whether the Tribunal had jurisdiction to recall
its earlier Award dated June 12, 1987. The High Court was of the view that
in the absence of an express provision in the Act conferring upon the Tribunal
the power of review the Tribunal could not review its earlier Award. The
High Court has relied upon the judgments of this Court in Dr. (Smt.) Kuntesh
F Gupta v. Management of Hindu Kanya Maha Vidyalaya, Sitapur (UP.) and
Ors., [1987] 4 SCC 525 and Patel Narshi Thakershi and Ors. v.
Pradyumansinghji Arjunsingji, AIR (1970) SC 1273 wherein this Court has
clearly held that the power of review is not an inherent power and must be
conferred by law either expressly or by necessary implication. The appellant
G sought to get over this legal hurdle by relying upon the judgment of this
Court in Grindlays Bank Ltd. v. Central Government Industrial Tribunal qnd
Ors., (supra). In that case the Tribunal made an ex-parte Award. Respondents
applied for· setting aside the ex-parte Award on the ground that they were'
prevented by sufficient cause from appearing when the reference was·blled
on for hearing. The Tribunal set aside the ex-parte Award on being satisfied
H that there was sufficient cause within the meaning of Oider 9 Rule 13 of the
KAPRA MAZDOOR EKTA UNION v. MGMT. OF BIRLA COTT. SPIN. AND WEA Y. MILLS [SINGH, l.] 899

Code of Civil Procedure and accordingly set aside the ex-parte Award. That A
order was upheld by the High Court and thereafter in appeal by this Court.

It was, therefore, submitted before us relying upon Grindlays Bank Ltd
v. Central Government Industrial Tribunal and Ors. (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 B
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 v. Central Government Industrial Tribunal and Ors. (supra) clearly
highlighted this distinction when it observed : -

"Furthermore, different considerations arise on review. The expression C
'review' is used in the two distinct senses, namely (l) 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 D
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 corrected ex
debita justitiae to prevent the abuse of its process, and such power
inheres in every court or Tribunal". E
Applying these principles 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 F
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
proceeding itself, and consequently the order passed therein. Cases where a
decision is rendered by the Court or quasi judicial authority without notice G
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
H
900 SUPREME COURT REPORTS (2005] 2 S.C.R.

A the ground that the order passed suffers from 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 I'

for no fault of his, or th;;it the matter was heard and decided on a date other
B 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 re-heard 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
... c error of procedure or mistake which went to the root of the matter and
invalidated .the entire proceeding. In Grindlays Bank Ltd. v. Central
Government Industrial Tribunal and Ors. (supra), it was held that once it is
established that the respondents were prevented from appearing at the hearing
due to sufficient cause, it followed that the matter must be re-heard and
decided again.
D
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

E
wpich vitiated the proceeding itself and consequently the Award, but on the
ground that some mattes which ought to hate 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.

F 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-Conciliation Officer to
G intervene. As noticed earlier a notice of strike was served on the Management
on February 14, 1983 by one of the Unions. On the other hand the Management
gave notice on April 4, 1983 under Section 25 FFF A of the Act for closing
part of the undertaking related to the weaving section. These facts leave no
manner of doubt that there was labour unrest coupled with the fear of strike
and closure. The settlement itself recites the fact that there were series of
H
KAPRAMAZDOOREKTA UNION v. MGMT OF BIRLACOTT. SPIN. ANDWEAV. MILLS[SINGH.J.] 90 J

bipartite and tripartite meetings between the representatives of the Management A
and the Unions in view of the labour unrest and threat of closing down the
operation of the weaving department. Meetings were also held in the office
of the Chief Labour Commissioner with a view to resolve the dispute and a
meeting was thereafter held on May 17, 1983 in the office of Shri K. Saran,
Joint Chief Labour Commissioner (Central) where the representatives of the
Management and the Unions participated alongwith the officers of the Labour B
Depatment which ultimately resulted in a settlement. All these facts establish
beyond doubt that there was labour unrest and the Conciliation Officer
intervened in the matter and made attempts to bring about a settlement. The
submission, therefore, that no conciliation proceeding was in progress when
the settlement was arrived at, must be rejected. C
Learned counsel for the appellant then submitted that the settlement
was not arrived at with the assistance and concurrence of the Conciliation
Officer. It was submitted, relying upon the decision of this Court in The Bata
Shoe Co. (P) Ltd v. D.N Ganguly and Ors., AIR (1961) SC 1158 that a
settlement which is made binding under Section 18(3) of the Act on the D
ground that it is arrived at in the course of conciliation proceedings is a
settlement arrived at with the assistance and concurrence of the Conciliation
Officer. Such a settlement brought about while conciliation proceedings are

--
pending, are made binding on all parties under Section 18 of the Act. Reliance
was placed on the judgment of this Court in Workmen of Mis. Delhi Cloth
and General Mills Ltd v. The Management of Mis. Delhi Cloth and General E
Mills Ltd., [l 969] 3 sec 302.

Learned counsel for the respondents did not dispute the legal position
as it emerges from these two judgments. It was submitted that the facts of this
case clearly establish that the Conciliation Officer intervened when there was F
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 G
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,
H
902 SUPREME COURT REPORTS [2005] 2 S.C.R.

A 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 Tribunal in our view proceeded on a factually incorrect assumption. The
B High Court has found that the Tribunal while making an Award in terms of
the settlement has in clear terms recorded its satisfaction in paragraph 25 of
its order (which we have quoted earlier in the judgment) that the settlement
was fair and just. We entirely, agree with the High Court.

C It was lastly submitted that the settlement did not resolve the disputes
which were subject matter of reference made to the Tribunal. The submission
again proceeds on a misreading of the settlement. It is no doubt true that the
disputes referred to the Tribunal mainly arose on account of the Management
-
closing down a large number of looms which necessitated a curtailment of
the work· force on account of which the Management refused to give work
D to a large number of workers. We find that Clause 3.2 of the settlement in .'
terms deals with the dispute relating to the weaving department and other
allied departments. This submission, therefore, has no force.
, I
In the result we find no merit in this appeal and the same is accordingly
dismissed, but with no order as to costs.
E
B.B.B. Appeal dismissed.