(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. Invoking clause 15 of the Letters Patent, the appellant - original respondent has sought to challenge the order dated 24.8.2011 of the learned Single Judge of this Court in Special Civil Application No.2029 of 2011; whereby the award of the Labour Court under challenge before the learned Single Judge has been set aside. In view of the recent Division Bench decision of this Court in Gustadji Dhanjisha Buhariwala and another Vs. Nevil Bamansha Buhariwala and others (Coram : S.J.Mukhopadhaya, Chief Justice (as His Lordship then was) and J.B.Pardiwala,J), [2011 (2) GLH 147] and later Full Bench decision of this Court in The Bhagyodaya Cooperative Bank Limited Vs. Natvarlal K.Patel and others, [2011 (3) GLH (FB) 89], the issue of maintainability of the Letters Patent Appeal was raised.
2. Addressing that preliminary issue of maintainability of the appeal, learned Senior Counsel Dr.Mukul Sinha submitted that original petition of the respondent was expressly one under Articles 226 and 227 of the Constitution and writ of certiorari was expressly sought in the petition. Therefore, regardless of the Labour Court whose award was challenged being not made a party, the petition could have been entertained and decided both under Articles 226 and 227 of the Constitution; and consequently appeal from the judgment of learned Single Judge would be maintainable. He further submitted that controversy before the Labour Court and the impugned decision involves jurisdictional issue insofar as on appreciation of facts, the finding was arrived at as regards status of the appellant herein as "workman" which would have determined the jurisdiction of the Labour Court. He further submitted that the aforesaid judgment of this Court in Gustadji Dhanjisha Buhariwala (supra) was rendered in the factual background of a petition being preferred on account of Revision Application under section 115 of the Civil Procedure Code being not available. He submitted that the awards of Labour Court and Tribunals constituted under the Industrial Disputes Act were on different footing and the right of appeal of a party appearing before learned Single Judge could not be allowed to be taken away by one or the other technical defect in the petition, which in the facts of the present case was filed by the respondent.
3. It was noticed during the course of arguments that after reference to several relevant judgments of the Supreme Court, the ratio laid down and the conclusion drawn by the Division Bench in Gustadji Dhanjisha Buhariwala (supra), inter alia, was as under :
"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 227 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......"
"46.
The cause title, averments and the prayers in the petition can be taken into account while deciding whether the petition is one under Article 226 and 227 of the Constitution. The true test is whether the facts justified invocation of Article 226/227 of the Constitution and this has to be determined on the facts of each case having regard to:
Nature and the jurisdiction invoked;
The averments contained in the petition The reliefs sought, and Most importantly, the true nature of the principal order passed by the learned Single Judge. The true nature of the order passed by the learned Single Judge has to be determined on the basis of true character of the relief granted.
..... ..... .....
"56.
The sum and substance of our discussion and findings recorded in the Judgment can be now summarized as under :
(1) xxxx xxxxx xxxxx (2) When remedy for filing the Revision under Sec. 115 of the Civil Procedure Code has been expressly barred then in such case the petition under Article 227 of the Constitution would lie and not a writ petition under Article 226 of the Constitution of India. If a petition under Article-227 of the Constitution would lie and if the same has been dismissed, then, no appeal under Clause-15 of the Letters Patent would be maintainable. A petition under Article-227 is not a writ petition. No Writ can be issued under Article-227.
(3) Where the statute bans exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article-227 of the Constitution of India since power of superintendence was not made to circumvent statutory law. Jurisdiction under Article-227 cannot be exercised as a cloak of appeal in disguise.
(4) xxxxxx xxxxxx xxxxx (5) xxxxxx xxxxxx xxxxx (6) Where a petition is filed, both under Articles-226 and 227 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....."
4. In earlier decision of the Apex Court in M.M.T.C. Limited Vs. Commissioner of Commercial Tax, [(2009) 1 SCC 8], it is observed at page 19 that : "Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, may be, by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made......."
5. Having regard to the well settled principles of law as aforesaid and particularly in view of the express provisions of section 17 of the Industrial Disputes Act whereunder, the award of the Labour Court, Tribunal or National Tribunal is declared to be final with an injunction that it shall not be called in question in any manner whatsoever, we are unable to take a view different from the view taken and elaborately adumbrated by the Division Bench of this Court in Gustadji Dhanjisha Buhariwala (supra). Therefore, the appeal is summarily dismissed along with the Civil Application as not maintainable without entering into merits, if any, of the other contentions in appeal.
(D.H.Waghela,J) (Mohinder Pal,J) pathan Top