(Per : HONOURABLE MR.JUSTICE A.L.DAVE) Present appeal challenges judgment and order dated 24.11.2009 rendered in SCA No.11724 of 2009. The said petition was preferred by present appellant, who was an employee / workman who came to be terminated on 28.10.1991. He, therefore, raised an industrial dispute in respect of which reference was made which was registered by Labour Court, Jamnagar being Reference (LCJ) No.152 of 1992. The Labour Court, ultimately, rejected the said reference by judgment and award dated 05.05.2009 and the same was challenged by filing petition before the learned Single Judge on 15.07.2009.
1.1 The learned Single Judge after considering the merits of the case, rejected the petition and observed thus :
"6. This Court is unable to accept the submission of Shri Upadyay. The fact remains to be noted that there is a findings recorded by the Labour Court in award impugned that workman failed in establishing that he has worked so as to attract the provisions of section 25F of the I.D. Act. Despite an opportunity of being given to the petitioner to establish, even at this level that workman has ever complied 240 days or not, petitioner could not establish by producing any document and therefore, this Court is of the view that the order impugned does not suffer from any infirmity so as to call for any interference under Article 227 of the Constitution of India. The petition being bereft of merits, deserves rejection and is rejected accordingly. There shall be no order as to costs."
2. The above order is the order impugned in this appeal which is preferred invoking Clause-15 of the Letters Patent.
3. The question that this Court is required to examine at this stage is whether the appeal is maintainable or not. In this context reference may be made to a decision in case of Vijay Hathising Shah & Anr. Vs. Gitaben Parshottamdas Mukhi L.R. Of Chanchalben P Mukhi & Ors., reported in 2011 (3) GLH 449 and earlier decision in case of Bhagyodaya Co-operative Bank Limited Vs. Natvarlal K Patel & Anr., reported in 2011 (3) GLH (FB) 89. It is contended by learned Advocate for the appellant that the petition was preferred by the appellant under Articles 226 and 227 of the Constitution of India and, therefore, may be treated as one under Article 226 and appeal may be entertained.
4. We are afraid we will not be able to accept the contention of learned advocate for the appellant for the reason that though the petition in its cause-title is styled as a petition under Articles 226 and 227 of the Constitution of India, the fact remains that Presiding Officer of the Labour Court was never made a party to the petition. Similarly, though the prayer clause indicates that a writ of certiorari is sought in absence of the Presiding Officer of the Labour Court being a party to the petition, no writ could have been issued. Thirdly, in the averments made in the petition, there are no allegations which would invoke a writ of certiorari under Article 226 of the Constitution of India.
5. In the opinion of this Court, therefore, the petition was for the purpose of challenging the award invoking power of superintendence under Article 227 of the Constitution of India and that being so in light of clause - 15 of the Letters Patent, appeal would not be maintainable. It must fail and stands dismissed.
6. In view of dismissal of the main appeal, Civil Application is disposed of accordingly.
[A L DAVE, J.] [MOHINDER PAL, J.] #MH Dave Top