(Per : MR.JUSTICE D.H.WAGHELA)
1. Upon this appeal being listed for hearing with several such appeals, nearly 200 other appeals were also caused to be listed in view of common issue of maintainability of such appeals having arisen in light of recent Division Bench decision of this Court in Gustadji Dhanjisha Buhariwala v. Nevil Bamansha Buhariwala [2011(2) G.L.H. 147].
That decision was rendered in the background of facts wherein the order of learned Single Judge in the matter arising from suit proceedings pending in a Civil Court was sought to be challenged before the Division Bench under Clause 15 of the Letters Patent. The Division Bench has taken the view that the petition before learned Single Judge was substantially under Article 227 of the Constitution of India and supervisory jurisdiction of the High Court was invoked. The group of appeals now listed for hearing before this Court arises from decisions of learned Single Judges in the petitions wherein awards and orders of Labour Courts and Industrial Tribunals are called into question. The difference in the factual background, however, would pale into insignificance in view of specific ratio and findings recorded in the erudite and elaborate judgment in Gustadji (supra).
Therefore, all the advocates appearing in the appeals listed together before this Court were permitted to argue on the preliminary issue as to whether the appeals were required to be entertained on merits or whether they were liable to be dismissed only on the ground of their non-maintainability. Learned counsel Mr.Asim Pandya, learned Senior Advocate Mr.K.M. Patel, learned counsel Mr.Hasit Joshi, Mr.G.M. Joshi, Ms.Vandana Bhatt, Mr.S.J. Gaekwad as well as learned Government Pleader Mr.P.K. Jani were heard; and former learned Advocate General and Senior Advocate Mr.S.N. Shelat, was requested to assist the Court as an amicus curiae.
In view of the opinion recorded herein, this order is made only in the present appeal.
2. The issue of maintainability of the appeal has arisen on account of the following observations, inter alia, in Gustadji (supra) :
"56.
The sum and substance of our discussion and findings recorded in the judgment can be now summarized as under :
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Where law provides the provision of Appeal and the same is decided by the judicial authority or where there is scope for judicial scrutiny by the subordinate at the top, the petition challenging such order would be covered under Article-227 of the Constitution.
(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.
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. 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 the character of the relief granted. By merely labeling the petition under Article-226 and by praying for Writ of Certiorari it cannot be said that the facts justify the party to invoke the extraordinary jurisdiction of the High court under Article-226 of the Constitution of India.
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(9) Writ Petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agency or a State or instrumentalities of the State within the meaning of Article-12. Private individuals cannot be equated with State or instrumentality of the State. All the respondents in a writ petition cannot be private parties. High Court can issue Writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform.
(10) In a petition for relief under Article-226 of the Constitution, the Court/Tribunal whose order is impugned in the petition must be made a party to the petition so that the writ sought from the Court can go against the Court/Tribunals, but if the petition is for relief under Article-227 of the Constitution, it is well settled that the Courts/Tribunals whose order is impugned in a petition, need not be a party in the writ petition. By entertaining the petition under Article-227 of the Constitution, the High Court exercises its power of superintendence, which is analogous to the revisional jurisdiction."
The above ratio has been followed in several subsequent decisions of other Division Benches of this Court.
3. It was vehemently urged by learned counsel Mr.Asim Pandya, appearing for the appellant, that the above propositions of law were inconsistent with previous and subsequent judgments on the issue of the Apex Court; and the decision in Gustadji (supra) is mainly based upon recent decision of the Supreme Court in Radhey Shyam v. Chhabi Nath [(2009) 5 SCC 616], in which correctness of the ratio in Surya Dev Rai v. Ram Chander Rai [(2003) 6 SCC 675] was doubted and the matter was referred to the Hon'ble Chief Justice of India for constituting a Larger Bench, whereby the ratio in Surya Dev Rai (supra) could not stand obliterated and did not cease to apply, according to the submission. Learned Senior Advocate Mr.K.M. Patel submitted that, as held in Dilavarsinh Khodabha v. State of Gujarat [1995 (1) G.L.R. 110], the writ of certiorari could be issued only under Article 226 of the Constitution and the petitioner as well as the Court would be required to invoke writ jurisdiction of the High Court for calling into question an award or order of the Labour Court or other Tribunals. He further submitted that any limitation on the plenary powers conferred upon the High Court by Article 226 has to be found in the Constitution itself and nowhere else. He also relied upon judgment of the Apex Court in Lokmat Newspapers (P) Ltd. v. Shankarprasad [(1999) 6 SCC 275] to emphasize that in the case directly arising from an award of the Labour Court, the Apex Court held the Letters Patent Appeal to be maintainable. In Surya Dev Rai (supra), in paragraph 34 the Supreme Court has categorically opined that the curtailment of revisional jurisdiction of the High Court does not take away - and could not have taken away - the constitutional jurisdiction of the High Court to issue a writ of certiorari to a Civil Court, nor is the power of superintendence conferred on the High Court under Article 227 of the Constitution taken away or whittled down. The power exists, untrammelled by the amendment in S. 115 of the C.P.C., and is available to be exercised subject to rules of self-discipline and practice which are well settled. As against that, in Radheshyam (supra), it is clarified in paragraph 32 that the essential distinctions in the exercise of power between Articles 226 and 227 are well-known and pointed out in Surya Dev Rai (supra) and with that the Court has no disagreement. But the disagreement was only in respect of judicial orders passed by a Civil Court and whether such orders of the Civil Court could be examined and then corrected or reversed by the Writ Court under Article 226 of the Constitution - in exercise of its powers to issue Writ of Certiorari, was the issue on which there was disagreement. It was on that basis submitted that the ratio in Surya Dev Rai (supra) was still operative and applicable in respect of any petitions arising from orders of Courts and Tribunals other than the Civil Court. Learned counsel also relied upon recent decision of the Full Bench of Bombay High Court in Advani Oerlikon Ltd. v. Machindra Govind Makasare and others [2011-III-LLJ-21 (Bom)].
3.1 It was submitted for the appellants that there was a consistent line of decisions of this Court and a direct and binding decision on the issue of Full Bench of this Court in Dilaversinh Khodubha v. State of Gujarat [1995 (1) G.L.R. 110 (FB)], wherein it is held as under :
"8.
The view of this Court, reflected in the above four decisions is that even if a writ petition is filed under Article 226, or both under Articles 226 and 227, against an order made by the Urban Land Tribunal under Section 33 of the said Act, such writ proceedings can be entertained by the single Judge only under Article 227 of the Constitution. This, notwithstanding the fact that the petition may have been filed under Article 226, praying for a writ of certiorari, against the order of the Tribunal, and though the Tribunal exercises functions of judicial or quasi-judicial nature in deciding appeals under Section 33 of the Act.
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"11. The question whether a party would be justified in invoking the jurisdiction of the High Court under Article 226 or against an order made by the Tribunal, would take us to the scope of writ of certiorari and the nature of the order of the Tribunal."
"12. ..
.. .. in other words, the aggrieved party would be justified in invoking the provisions of Article 226 of the Constitution for a writ of certiorari against the order made by the Urban Land Tribunal exercising its judicial functions conferred on it by Section 33 of the said Act. The decisions of this Court, referred to above, proceed on an assumption that an order of the Tribunal could be challenged only under Article 227, and that the petitions even if filed under Article 226 against such orders, should be treated as petitions under Article
227. For the reasons aforesaid, we are, with respect, unable to subscribe to this view."
3.2 The appellant also relied upon the judgment of the Apex Court in Ashok K. Jha v. Garden Silk Mills Ltd. [(2009) 10 SCC 584], wherein it is held that :
"28.
.. .. ..The Court held : (Radhikbhai case [1986 (supp) SCC 401] :
"..
.. (paragraph 100, 101, 102) .. .. ..
107. Petitions are at times filed both under Articles 226 and 227 of the Constitution. The case of Hari Vishnu Kamath v.
Syed Ahmad Ishaque (AIR 1955 SC 233) before this Court was of such a type. Rule 18 provides that where such petitions are filed against orders of the Tribunals or authorities specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against decrees or orders of courts specified in that rule, they shall be heard and finally disposed of by a Single Judge. The question is whether an appeal would lie from the decision of the Single Judge in such a case. In our opinion, where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution, and the party chooses to file his application under both these articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal, the court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. Such was the view taken by the Allahabad High Court in Aidal Singh v.
Karan Singh (AIR 1957 ALL 414) and by the Punjab High Court in Raj Kishan Jain v.
Tulsi Dass (AIR 1959 Punj 291) and Barham Dutt v.
Peoples' Cooperative Transport Society Ltd., New Delhi (AIR 1961 Punj 24) and we are in agreement with it.
..
.. .. (paragraphs 29 to 33) .. .. ..
"34.
.. .. .. In Visan Kumar Shiv Charan Lal [(2008) 15 SCC 233], this Court referred to earlier decisions in the case of Umaji [1986 Supp SCC 401], Sushilabai Laxminarayan [1993 Supp (1) SCC 11] and Ratnagiri District Cooperative Bank Ltd.[1993 Supp (1) SCC 9] and held :
(Visan Kumar Shiv Charan Lal case) :
"8.
.. .. ..Even when in the cause title of an application both Article 226 and Article 227 of the Constitution have been mentioned, the learned single Judge is at liberty to decide, according to facts of each particular case, whether the said application ought to be dealt with only under Article 226 of the Constitution. For determining the question of maintainability of an appeal against such a judgment of the Single Judge the Division bench has to find out whether in substance the judgment has been passed by the learned Single Judge in exercise of the jurisdiction under Article 226 of the Constitution.
In the event in passing his judgment on an application which had mentioned in its cause title both Articles 226 and 227, the Single Judge has in fact invoked only his supervisory powers under Article 227, the appeal under clause 15 would not lie. The clause 15 of the Letters Patent expressly bars appeals against orders of Single Judges passed under revisional or supervisory powers. Even when the learned Single Judge's order has been passed under both the articles, for deciding the maintainability against such an order what would be relevant is the principal or main relief granted by the judgment passed by learned Single Judge and not the ancillary directions given by him. The expression `ancillary' means, in the context, incidental or consequential to the main part of the order."
"35.
In Visan Kumar Shiv Charan Lal, this Court further held that the determining factor is the real nature of principal order passed by the Single Judge which is appealed against and neither mentioning in the cause title of the application of both the Articles nor granting of ancillary order thereupon by the Single Judge would be relevant and in each case the Division Bench must consider the substance of the Judgment under appeal to ascertain whether the Single Judge has mainly or principally exercised his jurisdiction under Article 226 or Article 227 of the Constitution. In Ramesh Chandra Sankla, this Court held :
"47.
In our judgment, the learned Counsel for the appellant is right in submitting that nomenclature of the proceeding or reference to a particular Article of the Constitution is not final or conclusive. He is also right in submitting that an observation by a Single Judge as to how he had dealt with the matter is also not decisive. If it were so, a petition strictly falling under Article 226 simpliciter can be disposed of by a Single Judge observing that he is exercising power of superintendence under Article 227of the Constitution. Can such statement by a Single Judge take away from the party aggrieved a right of appeal against the judgment if otherwise the petition is under Article 226 of the Constitution and subject to an intra court/Letters Patent Appeal? The reply unquestionably is in the negative."
"36.
If the judgment under appeal falls squarely within four corners of Article 227, it goes without saying that intra court appeal from such judgment would not be maintainable. On the other hand, if the petitioner has invoked the jurisdiction of the High Court for issuance of certain writ under Article 226, although Article 227 is also mentioned, and principally the judgment appealed against falls under Article 226, the appeal would be maintainable. What is important to be ascertained is the true nature of order passed by the Single Judge and not what provision he mentions while exercising such powers.
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"38.
Insofar as the present case is concerned, in the cause title of the writ petition (Special Civil Application), Articles 226 and 227 of the Constitution have been mentioned. A careful reading of the writ petition shows that writ petition is not confined to supervisory jurisdiction of the High Court. The employer has invoked jurisdiction of the High Court by praying for a writ of certiorari. The prayer clause in the writ petition reads, "In view of the aforesaid premises your Lordships may be pleased to issue a writ of certiorari or any other appropriate order......". The judgment of the Single Judge is, thus, traceable to Article 226. The statement made by the Single Judge in his order that no case for interference is made out under Article 227 of the Constitution is not decisive."
(emphasis supplied) 3.3 It was also pointed out that the following view is taken by the Full Bench of Allahabad High Court in Aidel Singh v. Karan Singh [AIR 1957 ALL 414 (FB)], which was referred to and approved of by the Apex Court in paragraph 28 in Ashok K. Jha (supra) :
"120.
Prior to the Constitution, the power to issue writs could not be considered to be a branch of the power of superintendence because the power of superintendence possessed by the High Courts did not carry with it the power to issue writs. Even under the Constitution, the power of superintendence is treated as a power divorced from the power to issue writs. This is borne out by the fact that the Supreme Court possesses the power to issue writs, yet it does not possess the power of superintendence... .. ..
"The analogy of English law cannot hold good in India. In England the power to issue writs is a part and parcel of the power of superintendence, because the power there is exercised by the court as a delegate of the Sovereign who is the fountain of all justice. This is not so in India where the source or power has always been the statute which is at present the Constitution of India. The Power conferred under Article 226 in India is also wider than the power to issue high prerogative writs in England... .. ..
"The power exercised under Article 226 is original. On the other hand, the power exercised under Article 227 is not original. Further, it is more reasonable to hold that an appeal should lie in cases where the judgment of a single Judge relates to the judgment of a court or tribunal than to take a contrary view. The contrary view would also bar the right of appeal of a Party to the Supreme Court under Article 133 of the Constitution. There may be cases where both the Articles 226 and 227 are applicable... .. ..
"In cases where the relief can be given under both, the Court should exercise its power under Article 226 on the principle that where a specific remedy is provided, the general provisions of law should not be resorted to. In any case, if a party is otherwise entitled to a right of appeal against an order under Article 226, the fact that the same relief could be granted under Article 227 is no reason for depriving it of the said right where the party has given the application itself under Article 226, has claimed its right to relief under the said Article, and the case itself has been entertained and disposed of by the Court under the same Article.
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"Hence where a party has given an application Under Art. 226 of the Constitution and an order has been passed by a single Judge on that application under the said Article, an appeal from such an order is not barred under Chapter VIII, rule 5 of the Rules of the Allahabad High Court on the ground that it is an order passed in exercise of the Power of superintendence possessed by this Court. .. .. ..
"72.
.. .. .. 'Superintendence' therefore implies a closer connection than 'supervisory'. The word 'superintendence' implies a controlling hand in the direction, management and charge of the body superintended. It is a control not only over the outer judicial working, but also over the inner administrative machinery. This is the power which is conferred on the High Court over all Courts and tribunals under Art. 227. On the other hand, the word 'supervisory connotes a more lax kind of control. It is control merely over the outer judicial working of bodies and not over their inner administrative machinery.
"It is a power which apart from Courts, tribunals, the High Court also exercises over the Government and other bodies over which it has no administrative control. This is the power conferred under Art. 226. In the above case it may also be noted that while resorting to Art. 226 for the issue of the writ of certiorari, in the end their Lordships observed as follows :
"Under the circumstances, the proper order to pass to quash the decision of the Tribunal and remove it out of the way by 'certiorari' under Art. 226, and to set aside the election of the first respondent in exercise of the powers conferred by Art. 227."
"73.
This sentence would indicate that their Lordships thought that the two powers were distinct, for, whereas they resorted to Art. 226 for one part of their order, they invoked Art. 227 for the other. The two Articles might be supplementary to each other in some cases, but that does not mean that the power exercised under them is an identical one in all cases. It is also significant to note that they characterised the supervisory power exercised under Art. 226 as one which is not appellate.
"This would indirectly support the view which is expounded in the latter part of the judgment to the effect that the power exercised under Art. 226 is not appellate but original."
"74.
It is true that in certain cases the power of superintendence exercised by the High Court under Art. 227 may overlap the power of the High Court to issue directions under Art. 226. Thus, it might be so in some cases relating to Courts and tribunals. The fact, however, that a similar relief can be obtained by an exercise of power under either of the two sections does not mean that the power exercised under the two sections is the same."
"Thus, for example, there might be cases in which power of revision under S. 115, of the Civil P. C., power of superintendence under Art. 227 of the Constitution as well as writ power conferred under Art. 226, might all be applicable for getting the same relief. That would not, however, mean that the powers under all the aforesaid sections (sic) are the same. In this connection the following observations made by Rajamannar C. J., in a Bench decision of the Madras High Court reported in In re, Gangalakurthi Pattisam, AIR 1954 Mad 573 (Q) are relevant: .. .. .."
(emphasis supplied) 3.4 It was pointed out from a Nine-Judge Bench judgment of the Apex Court in Naresh Shridhar Mirajkar v. State of Maharashtra [AIR 1967 SC 1], that although the Court was considering whether a judicial order passed by the High Court prohibiting publication in newspaper of evidence given by a witness pending hearing of the suit, is amenable to be corrected by a Writ of Certiorari, it was observed :
"53.
It is well settled that the powers of this Court to issue writs of certiorari under Art. 32 (2) as well as the powers of the High Courts to issue similar writs under Art. 226 are very wide. In fact, the powers of the High Courts under Art 226 are, in a sense, wider than those of this Court, because the exercise of the powers of this Court to issue writs of certiorari are limited to the purposes set out in Art. 32 (1). The nature and the extent of the writ jurisdiction conferred on the High Courts by Art. 226 was considered by this Court as early as 1955 in T. C. Basappa v. T. Nagappa, 1955- 1 SCR 250 at pp. 256-8 (AIR 1954 SC 440 at pp 443-44). It would be useful to refer to some of the points elucidated in this judgment. The first point which was made clear by Mukherjea, J., who spoke for the Court, was that-
"in view of the express provisions in our Constitution, we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make all order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law".
"One of the essential features of the, writ, according to Mukherjea. J., is "that the control which is exercised through it over judicial or quasi-judicial Tribunals or bodies is not in appellate but supervisory capacity. In granting a writ of certiorari, the superior Court does not exercise the powers of an appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior Tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views to those of the inferior Tribunal. The supervision of the superior Court exercised through writs of certiorari goes on two points, one is the area of inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of law in the course of its exercise. Certiorari may lie and is generally granted when a Court has acted without or in excess of its jurisdiction.
The want of jurisdiction may arise from the nature of the subject-matter of the proceeding or from the absence of some preliminary proceeding or the Court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances. When the jurisdiction of the Court depends upon the existence of some collateral fact, it is well settled that the Court cannot by a wrong decision of the fact give its (sic) jurisdiction which it would not otherwise possess."
"It is in the light of these principles which have been consistently followed by this Court in dealing with the problem relating to the exercise of the writ jurisdiction by the High Court under Art. 226 or by this Court under Art. 32, that we must now proceed to deal with the point before us.
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56. This last category of cases often arise in relation to Tribunals which have been given jurisdiction to try certain issues under certain conditions. It is only if the condition prescribed by the statute is satisfied that the Tribunal derives jurisdiction to deal with the matter. Proof of such a condition is regarded as the proof of a collatera1 fact, and an erroneous decision of the Tribunal as to the existence of this collateral fact is not regarded as binding on the parties and can be challenged by a writ proceeding under Art.
226. .. .."
(emphasis supplied) 3.5 Learned counsel Mr.G.M. Joshi relied upon the following observations of the Apex Court in Indian Airlines Ltd. v. Prabha D. Kanan [AIR 2007 SC 548] :
"42.
But, in a case of this nature although there is no provision for appeal, but even in a judicial review, the court may require the employer to produce the records, on a perusal whereof the court may come to a finding as to whether the order passed by the Board of Directors was bona fide or not.
43. A judicial review of such an order would be maintainable. In a case of judicial review, where no appeal is provided for, the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India would not confine its jurisdiction only to the known tests laid down therefor, viz., illegality, irrationality, procedural impropriety. It has to delve deeper into the matter. It would require a deeper scrutiny."
Learned counsel also submitted that there is no legal principle or precedent to support the legal proposition that the party concerned or the Court has no option but to invoke Article 227, and Article 227 only, in case an award or order of the Tribunal is under challenge before the highest Court of the State. He further submitted that non-joinder of a quasi-judicial authority or Tribunal against whose order a writ is prayed, is at the worst a defect of pleading which is curable by an amendment, if required, as held in Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another [AIR 1963 SC 786].
4. Learned Senior Advocate Mr.S.N. Shelat submitted that invocation of Article 226 or 227 of the Constitution or joining as respondent of the Labour Court or the Tribunal whose order was challenged before the learned Single Judge, are not the factors which are decisive for determining the maintainability of the Letters Patent Appeal, as those factors could not bar the High Court from entertaining the petition or granting appropriate relief. It was submitted that in a recent decision of the Apex Court in M/s.M.M.T.C. Limited v. Commissioner of Commercial Tax and others [AIR 2009 SC 1349], the High Court seemed to have gone by the nomenclature i.e. the description given in the writ petition to be one under Article 227 of the Constitution. The High Court did not consider the nature of the controversy and the prayer involved in the writ petition. The prayer was to quash the order of assessment passed by the Assistant Commissioner, Commercial Tax, levying purchases (sic) as well as entry tax. After reference to several relevant judgments, including in Umaji Keshao Meshram v. Smt.Radhikabai [AIR 1986 SC 1272] and Lokmat Newspapers (P) Ltd. (supra), the Apex Court held that the High Court was not justified in holding that the Letters Patent Appeal was not maintainable. Again in State of Madhya Pradesh and others v. Visatkumar Shivcharan [AIR 2009 SC 1999], wherein Reference under Section 10 of the Industrial Disputes Act, 1947 was decided in favour of the employee and writ petition filed therefrom was dismissed by the learned Single Judge, the Division Bench had dismissed the Letters Patent Appeal as not maintainable as the impugned order was in terms of Article 227 of the Constitution. Relying upon the aforesaid judgment in M/s.M.M.T.C. Limited (supra), the Apex Court held that the High Court was not justified in holding that the appeal was not maintainable. Learned Senior Advocate Mr.Shelat also relied upon the Full Bench decision of this Court in Bhagyoday Cooperative Bank Ltd. v. Natvarlal K. Patel and another [2011 (3) G.L.H. (FB) 89] to submit that after reference therein to Gustadji (supra), its ratio stood modified in view of the following observations :
"15. From the aforesaid decisions rendered by this Court and the Supreme Court, as referred to above, we hold as follows :
(i) In a petition for relief under Article 226 of the Constitution of India against any judgment or award passed by the Industrial Tribunal or Labour Court, such Industrial Tribunal or Labour Court is a necessary party. In absence of such necessary party, no rule and writ can be issued under Article 226 against such Industrial Tribunal or the Labour Court;
(ii) But if a petition for relief is filed under Article 227 of the Constitution of India, the Court or the Tribunal whose order is impugned in the petition, is not a necessary party to such petition under Article 227 of the Constitution of India. The High Court can exercise the power under Article 227 even in absence of such Court or the Tribunal.
The Full Bench went on to observe :
"17.
In the present case, we have seen that the Industrial Court, Ahmedabad and Labour Court, Ahmedabad are party respondents. Therefore, the petition under Article 226 of the Constitution is maintainable in the said case. However, as in the other case, in which the Industrial Court or the Labour Court is not a party respondent, is analogous to the said case and has been preferred against the same very judgment and award, it will be open to the Court to hear the writ petitions to grant similar relief, similar prayer having made against the common judgment."
Upon critical reading of the above binding judgment of the Full Bench of this Court, it was submitted that the proposition of law laid down in Gustadji (supra) in paragraph 56 (5), (6), (9) and (10), stood modified and it could no longer be argued that a petition challenging an award or order of the Labour Court or Industrial Tribunal could be entertained as one exclusively under Article 227 of the Constitution.
5. After reference to opinion of the Full Bench of Allahabad High Court in Aidel Singh (supra) as well as this Court in Dilaversingh (supra), it would be pertinent and interesting to refer to the view taken by a few other High Courts. The Full Bench of Madhya Pradesh High Court in Dr.Jaydev Siddha and others v. Jayprakash Siddha [AIR 2007 MP 269] opined that it cannot be said in a hypertechnical manner that an order passed in a writ petition, if there is assail to an order emerging from the inferior tribunal or subordinate courts, has to be treated all the time for all purposes to be under Article 227 of the Constitution. Whether learned single Judge has exercised his jurisdiction under Article 226 or under Article 227 or both would depend upon various aspects and many a facet as has been emphasized in several decisions of the Apex Court. It would not be an overemphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exit, overlap or imbricate. There may be cases where the learned single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It would depend upon factual matrix of the case. Upholding the aforesaid ratio in Dr.Jaidev Siddha (supra), a Special Bench of Five Hon'ble Judges in Manojkumar v. Board of Revenue and others [AIR 2008 MP 22] expressed the majority view that maintainability of a writ appeal from an order of learned single Judge would depend upon many an aspect and cannot be put into a straitjacket formula. It cannot be stated with mathematical exactitude but would depend upon the pleadings in the writ petition, nature of the order passed by the learned single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional perspective in the constitutional context. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts, has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It is to be borne in mind that the powers of the High Court under Article 226 of the Constitution are not confined to prerogative writs inasmuch as it can issue directions, orders, writs and can mould the relief to meet the peculiar requirements. It is a constitutional power conferred on the High Court to see that no man is subject to injustice by violation of law. In exercise of powers under this Article, the High Court is expected to erase injustice and not to make justice a by-product.
5.1 The Full Bench of Calcutta High Court in Bhowanipore Gujrati Education Society and another v. Kolkata Municipal Corporation and others [AIR 2009 Cal 140], was required to consider inter alia whether a writ petition under Article 226 of the Constitution against an order passed by a statutory Tribunal exercising judicial functions was maintainable. The Full Bench opined in paragraph 32 that the judgment in Surya Dev Rai (supra) does not lay down the proposition that a writ petition under Article 226 of the Constitution would not be maintainable against an order passed by a Tribunal exercising judicial functions. Rather the Supreme Court emphatically lays down that the proceedings of judicial Courts, subordinate to the High Court can also be subjected to certiorari. Once it is accepted that the High Court has jurisdiction to issue writs under Article 226 of the Constitution, no further embargo can be placed on the power of the High Court. The law has been consistently laid down by the Supreme Court that the power of the High Court to exercise jurisdiction under Article 226/ 227 of the Constitution forms a part of the basic structure of the Constitution. Therefore, it cannot be curtailed by any provision contained in any enactment of legislature or any rule framed by the High Court. Accordingly, it was concluded and held that writ petition under Article 226 of the Constitution against an order passed by a statutory Tribunal exercising judicial functions is maintainable. It is also held in paragraph 39 that the combined petition filed under Article 226/227 of the Constitution can always be treated by the High Court as a petition under Article 226 of the Constitution of India.
5.2 The Full Bench of the High Court of Bombay in Advani Oerlikon Ltd. (supra) considered nine specific points referred to it by the Division Bench, with the factual backdrop in which an order of Labour Court and an order of Industrial Court in appeal had been challenged by the workman in a petition invoking Articles 226 and 227 of the Constitution.
After reference to a series of relevant judgments, the Full Bench held :
"18. The principles which emerge can be elucidated as follows: (i) The fundamental principle which must be applied in determining the maintainability of an appeal under Clause 15 of the Letters Patent, is whether the facts justify a party in filing an application either under Article 226 or Article 227 of the Constitution. Where in such a case, a party chooses to file an application under both the Articles, it should not be deprived of a right of appeal. The Court must treat the application as one under Article 226 of the Constitution. If the single Judge in the course of the final order has issued an ancillary direction which pertains to Article 227, this would not deprive a party of a right of appeal under Clause 15 of the Letters Patent;
(ii) Equally, it is now a settled principle that a mere nomenclature which is used by a party is not dispositive of the nature of the jurisdiction that is invoked and of the nature of the power that is exercised by the single Judge; (iii) In deciding as to whether the facts justify the invocation of the jurisdiction either under Article 226 or Article 227 of the Constitution, due regard has to be had to
(a) the nature of the controversy; (b) the nature of the jurisdiction invoked; and (c) the true nature of the principal order passed by the single Judge; (iv) Where the contention that is raised, the grounds taken and the reliefs sought in the petition justify the invocation of both Articles 226 and 227 of the Constitution, an appeal under Clause 15 of the Letters Patent against a judgment of the single Judge would be maintainable; (v) The mere fact that while dismissing such a petition, the Learned single Judge has observed that no ground for interference under Article 227 has been made out, would not deprive the aggrieved party of a right of appeal under Clause 15 of the Letters Patent."
6. Upon plain reading of Clause 15 of the Letters Patent of the Bombay High Court as applicable to this Court, it is quite clear that a Letters Patent Appeal is not maintainable against a judgment or order passed or made in exercise of powers of superintendence under the provisions of Section 107 of the Government of India Act, 1915 or against an order made in exercise of revisional jurisdiction. In the facts in Gustadji (supra), the challenge before learned Single Judge was to a judicial decision rendered by a Court in a suit proceeding at an interlocutory stage. The Division Bench adopted the view that there cannot be any distinction with regard to a proceeding under Article 226/227 and Section 115 of the C.P.C. when it relates to a proceeding arising out of an order of the Civil Court; and, whatever might be the nature of the petition, it remains a revisional jurisdiction. After reference to the ratio in Gustadji (supra), the Full Bench of this Court has already held in Bhagyoday Cooperative Bank Ltd. (supra) that where the Industrial Court and Labour Court were party respondents, a petition under Article 226 of the Constitution was maintainable. The Full Bench went ahead to hold that the High Court may hear the writ petitions to grant similar relief, as common judgment was challenged, even though the Industrial Court or the Labour Court were not party respondents. Therefore, on a facile view of the matter, the moot question boiled down to whether the Labour Court or the Industrial Tribunal was made a party to the petition, which in turn would decide, whether the Letters Patent Appeal would be maintainable or not from the decision rendered by learned Single Judge in such petition. The Full Bench of this Court has referred to decision in the case of Udit Narain Singh Malpaharia (supra) and quoted the following observations of the Apex Court :
"12. To summarise, in a writ of certiorari not only the tribunal or authority whose order is sought to be quashed but also parties in whose favour the said order is issued are necessary parties. But it is in the discretion of the court to add or implead proper parties for completely settling all the questions that may be involved in the controversy, either suo motu or on the application of a party to the writ or an application filed at the instance of such proper party."
(underlines added) The Full Bench has also referred to later decision of the Supreme Court in Savitri Devi v. District Judge, Gorakhpur and others [AIR 1999 SC 976], wherein it is observed :
"14.
Before parting with this case it is necessary for us to point out one aspect of the matter which is rather disturbing. In the writ petition filed in the High Court as well as the Special Leave Petition filed in this Court, the District Judge, Gorakhpur and the 4th Additional Civil Judge (Junior Division), Gorakhpur are shown as respondents and in the Special Leave Petition they are shown as contesting respondents. There was no necessity for impleading the judicial officers who disposed of the matter in a civil proceeding when the writ petition was filed in the High Court; nor is there any justification for impleading them as parties in the Special Leave Petition and describing them as contesting respondents. We do not approve of the course adopted by the petitioner which would cause unnecessary disturbance to the functions of the concerned judicial officers. They cannot be in any way equated to the officials of the Government. It is high time that the practice of impleading judicial officers disposing of civil proceedings as parties to writ petitions under Article 226 of the Constitution of India or Special Leave Petitions under Article 136 of the Constitution of India was stopped. We are strongly deprecating such a practice."
(underlines added) In view of above binding observations and the opinions recorded in the previous paragraphs, it would appear that not only an order of a subordinate Court or Tribunal could be called into question before the High Court under Article 226 or 227 of the Constitution, but a petition for that purpose may or may not have the Court or the Tribunal concerned as a party respondent. In such circumstances, in view of the decisions of the Apex Court in Ashok K. Jha (supra), Shahu Shikshan Prasarak Mandal (supra) and State of Madhya Pradesh (supra), the Letters Patent Appeal could not be summarily dismissed as not maintainable. The ratio in Surya Dev Rai (supra) could also not be ignored as if it were overruled by Radhey Shyam (supra), insofar as, as recently held by the Apex Court on March 14, 2012 in Ashok Sadarangani and another v. Union of India [ Writ Petition (Cri.) No.26 of 2011], the pendency of a reference to a Larger Bench does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in a reference; till the decisions are not modified or altered in any manner, they continue to hold the field.
Therefore, following the decision of the Apex Court, which directly and fully applies in the case on hand, in Lokmat Newspapers (P) Ltd. (supra), the Letters Patent Appeal cannot be summarily dismissed without scrutiny of several aspects, including the pleadings, the prayers, the jurisdiction of the High Court which was invoked by the parties and which was exercised or refused to be exercised by learned Single Judge, as also the impugned decision. As held in Gustadji (supra) itself, in order to find out whether the petition was one under Articles 226 or 227 of the Constitution, it has to be determined on the facts of each case, having regard to the nature and 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. However, by merely labeling the petition as one under Article 226 of the Constitution and by praying for writ of certiorari, it cannot be said that the facts justified invocation of extraordinary jurisdiction of the High Court under Article 226 of the Constitution. Accordingly, it would be improper and illegal to dismiss a Letters Patent Appeal only on the ground that either the original writ petition or the impugned decision of the learned Single Judge mentioned Article 227 of the Constitution or the Labour Court or the Industrial Tribunal whose order or award was under challenge before learned Single Judge was not a party to the proceeding. Therefore, the present appeal as well as the other appeals listed together for hearing are not dismissed at this stage and ordered to be listed for hearing in due course.
The invaluable legal assistance extended at the request of the Court by learned Senior Advocate Shri S.N. Shelat reaffirms the highest traditions maintained at the Bar.
Sd/-
( D.H. Waghela, J.) Sd/-
( Mohinder Pal, J.) (Thilake) Top