(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. Invoking Clause 15 of the Letters Patent, the appellant has sought to challenge order dated 15.4.2002 of learned single Judge of this Court in SCA No.2803 of 2001 whereby petition of the appellant was dismissed in limine. The prayer in the appellant's petition was to set aside the award dated 30.6.2000 of Labour Court, Vadodara in Reference (LCV) No.1081 of 1997 whereby the reference was rejected. Even as the petition of the appellant was styled as one under Articles 226 and 227 of the Constitution, as held by Division Bench of this Court in Gustadji Dhanjisha Buhariwala v. Nevil Bamansha Buhariwala [2011 (2) G.L.H. 147], the true test for deciding whether the petition was under Article 226 or 227 is whether the facts justified invocation of Article 226/227 of the Constitution and that has to be determined on the facts of each case having regard to: (i) nature and jurisdiction invoked, (ii) averments contained in the petition, (iii) reliefs sought, and (iv) most importantly, the true nature of the principal order passed by learned single Judge. The true nature of the order passed by learned single Judge has to be determined on the basis of true character of the relief granted. The Division Bench also devised further test in the following terms:
"43. We may also lay down one more test in determining whether the High Court has exercised the supervisory jurisdiction or otherwise. Where a petition is filed both under Article 226 and s27 of the Constitution, it will have to be considered whether the point raised in the petition arose for adjudication for the first time before the High Court. If the challenge in the petition is with respect to the point already adjudicated upon by the subordinate Court, then, it will have to be held that the supervisory jurisdiction of the High Court was invoked and not the original...."
2. Applying the above test in the context of the facts of the present case, apparently, the award of the Labour Court, which was sought to be challenged before learned single Judge, was, by express provisions of section 17 (2) of the Industrial Disputes Act, 1947, final order, which could not be called into question by any court in any manner whatsoever. Therefore, it is clear that, when such award was sought to be challenged on its merits, the petition challenging such award could only be entertained under Article 227 of the Constitution and hence, by virtue of the recent binding precedent of this Court in Gustadji Dhanjisha Buhariwala (supra), the appeal is not maintainable. Therefore, without entering into merits or otherwise of any other contention, the appeal is dismissed as not maintainable.
Sd/-
( D.H.Waghela, J.) Sd/-
( N.V.Aanjaria, J.) (KMG Thilake) Top