(Per : HONOURABLE MR.JUSTICE A.L.DAVE)
1. This appeal arises out of the judgment and order dated 19.9.2011 rendered in Special Civil Application No.13951 of 2011. The said petition was preferred by the present appellant to challenge the order of the Labour Court, Bhavnagar dated 26.5.2011 in Reference (LCB) No.73 of 2010 holding that departmental inquiry against the respondent delinquent was illegal.
1.1 Learned Single Judge found that the Inquiry Officer himself played the role of the Presenting Officer and recorded finding and ultimately inflicted the punishment and, therefore, departmental proceedings against the respondent were vitiated.
2. The petition before the learned Single Judge was nomenclature as petition under Articles 226 and 227 of the Constitution of India where the following reliefs were sought :
"(A) YOUR LORDSHIPS may be pleased to grant and allow this Special Civil Application;
(B) YOUR LORDSHIPS may be pleased to pass a writ of certiorari or any other appropriate writ in exercise of the power conferred under Article 226 & 227 of the Constitution of India; and further be pleased to quash and set aside the judgment and award passed by the learned Labour Court, Bhavnagar, on 26/5/2011 in the matter of Reference LCB No.73/2010; and further be pleased to hold and declare that the inquiry conducted by the Petitioner is just and proper; and further be pleased to hold that the order terminating services of the Respondent dated 15/10/2009 is just, proper and legal.
(C) YOUR LORDSHIPS may be pleased to stay the operation and implementation of the award dated 26/05/2011, passed in Reference LCB No.73/2010 by the learned Labour Court, Bhavnagar, pending admission, hearing and final disposal of this petition.
(D) YOUR LORDSHIPS be pleased to grant any further relief which may be deemed just and proper in favour of the petitioner."
3. We have heard learned advocate Mr.Hasurkar on the question of maintainability of this appeal. According to him, the petition was nomenclature as the petition under Articles 226 and 227 of the Constitution of India raising violation of legal right of the petitioner - appellant and, therefore, it may be treated as a petition under Article 226 of the Constitution of India and this appeal under clause 15 of the Letters Patent, therefore, would be maintainable.
4. We have examined the petition from the perspective canvassed by learned advocate Mr.Hasurkar. It is true that both the cause title as well as prayer clause purportedly seek to invoke Article 226 of the Constitution of India. It is equally true that the Presiding Officer of the Labour Court, Bhavnagar has been shown as party respondent in the petition, but if the contents of the petition are seen, they all relate to an error committed by the Labour Court in appreciating the evidence and/or legal proposition and in coming to the conclusion that the departmental proceedings were vitiated overlooking the fact that when the Labour Court itself examined this question by permitting the parties to adduce the evidence and the departmental proceedings would lose its significance.
5. We find that all the grounds stated in the petition can be appreciated and the relief sought can be granted by invoking the jurisdiction under Article 227 of the Constitution of India and there is no scope for invoking Article 226 of the Constitution of India. As there is no averments in the petition that any constitutional or legal right of the petitioner is violated, for exercising the powers under Article 227 of the Constitution of India, issuance of a writ is not contemplated and if the relief sought can be granted without issuance of a writ, simply by asking for issuance of a writ of certiorari in the prayer clause, the petitioner cannot change the nature of its petition. In our view, the petition is without substance under Article 227 of the Constitution of India and, therefore, the case would be squarely covered by the decisions of this Court in Vijay Hathising Shah and another Vs. Gitaben Parshottamdas Mukhi, L.R. of Chanchalben P.Mukhi and others, 2011 (3) GLH 449 and in Special Civil Application No.12382 of 2010 and allied matters in Bhagyodaya Cooperative Bank Limited Vs. Natvarlal K.Patel and others. The appeal stands dismissed.
(A.L.Dave,J) (Mohinder Pal,J) pathan Top