(Per : HONOURABLE MR.JUSTICE A.L.DAVE) Present appeal challenges judgment and order dated 06-07/09/2011 rendered in SCA No.5721 of 2011. The said petition was preferred by present respondent, who was an employee / workman who came to be terminated on 01/04/2000. He, therefore, raised an industrial dispute in respect of which reference was made which was registered by Labour Court, Jamnagar being Reference (LCJ) No.20 of 2009. The Labour Court ultimately rejected the said reference by judgment and award dated 20/02/2008 and the same was challenged by filing petition before the learned Single Judge on 27/04/2011.
1.1 The learned Single Judge after considering the merits of the case, allowed the petition and gave directions thus:
"10. Taking into consideration the fact that service of the petitioner-workman was not discontinued in accordance with law and he was not granted the benefits flowing from the provisions of the Labour Laws, this Court is of the opinion that awarding 25% back wages will be appropriate. Accordingly, it is ordered that petitioner - workman be reinstated at his original post with continuity of service with 25% of back wages for the period commencing from the date of termination to the date of award, as early as possibly, preferably by 10/10/2011."
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 Mr.B A Vaishnav that the petition was preferred by the respondent under Article 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 Mr.Vaishnav 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.) sompura Top