(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. The matter is listed at Sr. No. 2 in the board of 16.3.2012. The matter was called out in the first round. Learned Advocate Mr Bharat Shah for the appellant was not present. Instead of dismissing the matter for default, the matter was kept back though learned Advocate Mr Jayaraj Chauhan was present for learned Advocate Mr Mukund M Desai for respondents No.1 and 2. Learned AGP Mr L R Pujari appeared for respondent No.3.
2. Even in the second round, learned Advocate Mr Bharat Shah is not present. At this juncture, learned Advocate Mr Jayaraj Chauhan for respondents No.1 and 2 invited our attention to the order under challenge in this Appeal i.e. order dated 10.12.2009. For the ready perusal, the said order is reproduced hereunder:
"Invoking Articles 14 and 16 and extraordinary jurisdiction of this Court under Article 226 of the Constitution, the petitioner has sought to challenge interim order dated 3.9.2009 of the Gujarat Affiliated Colleges Services Tribunal at Ahmedabad, in Application No.45 of 2005, whereby ad-interim relief, which operated for four years, was vacated with cost of Rs.5,000/- and the matter was fixed for hearing on 11.11.2009. As admitted by learned counsel, Mr.B.B.Shah, during the course of hearing, he sought an adjournment on 11.11.2009 and now the matter is fixed for hearing in January 2010, while the cost imposed upon the petitioner is also not paid. The elaborate reasonings of the impugned order are a sad commentary on the attitude adopted by the original applicant and his counsel, Mr.B.B.Shah. The finding after discussion of the course of events and umpteen number of adjournments is that the applicant was not interested in proceeding with the matter, after getting an ex-parte order, and hence, mala fide on the part of the applicant was rightly inferred. Therefore, the proceedings before the Tribunal clearly appear to be abuse of the process of Court and present petition appears to be an extension thereof. Therefore, the petition is summarily dismissed with cost of Rs.1,000/-, which shall be paid by the applicant, within one month, to the Legal Services Authority at Ahmedabad ."
Learned Advocate for the appellant then invited attention of the Court to paragraph No.4 of the order of the Gujarat Affiliated Colleges Services Tribunal at Ahmedabad (for short, "the Tribunal") dated 3.9.2009 which is produced at Annexure 'A' to the petition which is at running page No.12 to 21 of the compilation. Paragraph No.4 is at page No.20. The same is also reproduced hereunder:
"4.
Today, when the matter is called out, L.A. Mr B.B. Shah has submitted that he wants to take evidence though an application was submitted by him in writing that for an oral argument he has requested for time for long back. Even otherwise, he has forgotten and not gone through the record and requested for oral evidence. I have gone through the record of the case and considering the behaviour of the Applicant after getting exparte order, he is not interested in proceeding with the matter, I hereby feel that it is proper to vacate the interim relief, which was granted earlier at the time of filing of this application only after hearing the applicant and without issuing notice to the other side as till date the applicant has not given any application or shown urgency for hearing of interim relief. So, mala fide intention of the applicant is very clear and pursuant to that, I hereby also feel it proper to give direction to the respondent Nos. 1,2 and 3 that if they had paid any salary to the applicant for the period for which the applicant is not entitled to as per reply of the respondent Nos. 1, 2 and 3, then they would have to stop paying the salary to the applicant with immediate effect."
3. Learned Advocate for the respondents No. 1 and 2 then invited our attention to order dated 27.7.2009 Annexure "E" in the compilation which is at running pages No. 30 to 34. Paragraphs 3 and 4 are at pages No. 32 and 33. The same are reproduced hereunder:
"3. On each and every date, stay extension application was submitted by the applicant on the following dates i.e. on 19.12.05, 20.1.06, 10.2.06, 28.2.06, 17.3.06, 30.3.06, 27.6.06, 21.7.06, 6.9.06, 3.10.06, 6.10.06, 7.11.06, 15.2.07, 13.3.07, 23.4.07, 25.7.07, 26.9.07, 23.11.07, 10.12.07, 14.12.07, 26.12.07, 24.1.08, 12.2.08, 29.2.2008, 31.3.08, 30.6.08, 9.7.08, 27.8.08, 21.10.08, 28.1.09, 9.3.09,
30..3.09 and 29.6.09.
4. As per the record of this Tribunal, adjournment application was also submitted by the applicant on the following dates i.e. 17.3.06, 21.7.06, 6.9.06 & 3.10.06 and on 3.10.06. Learned Advocate Mr M.M. Desai had written an objection against adjournment application submitted by the applicant. Again adjournment application was submitted by the applicant dated 15.2.07, 12.3.07, 18.4.07, 25.7.07, 26.9.07, 23.11.07, 10.12.07, 14.12.07, 26.12.07, 24.1.08 & 12.2.08 and on 12.2.08. L.A., Mr M.M. Desai had endorsed the application for adjournment submitted by the applicant with the endorsement "short date may be granted". Adjournment application was also submitted on 29.2.08 and 31.3.08 and on 31.3.08, L.A. Mr M.M. Desai had endorsed the application with the endorsement that the application of the applicant is not maintainable as preliminary objection is also raised by the respondent management and requested this Tribunal to decide this matter. Then, an adjournment application was submitted on 30.06.08 with the "No Objection" of L.A. Ms. F.D. Upadhyaya for L.A. M.M. Desai and last adjournment application was submitted on 29.6.09. On that day, the said adjournment application was rejected by this Tribunal as no one was present for the applicant in the first sitting, neither any adjournment application was submitted by any of the person for the applicant when the matter was called out from the dais for three times and the said adjournment application was also submitted to the Bench Clerk in the second sitting."
4. From the aforesaid facts, it is clear that learned Advocate for the appellant is facilitating the appellant to pursue frivolous proceedings not only before this Court but right from the stage of Tribunal.
5. Coming to the present Appeal, it is filed against an order passed by the learned Single Judge in a petition filed challenging the order of the Tribunal. It is settled position of law that when a petition is filed challenging an order of the Tribunal before the learned Single Judge, the order passed therein cannot be assailed in a Letters Patent Appeal. Learned Advocate for respondents No.1 and 2 submitted that perusal of Special Civil Application No.13012 of 2009 will show that except mentioning the said petition to be a petition under Articles 14, 16 and 226 of the Constitution of India, there is no other material which will enable this Court to hold that the petition was filed under Article 226 of the Constitution of India.
5.1. So far as Special Civil Application No.13012 of 2009 is concerned, it challenges an order dated 3.9.2009 whereby an application for interim injunction was rejected with cost of Rs.5,000/-. It is prayed that the application for ad-interim injunction be restored till final disposal of Application No. 45 of 2005 pending before the Tribunal at Ahmedabad. Necessarily, Special Civil Application No. 13012 of 2009 is filed under Article 227 of the Constitution of India and, therefore, the order passed dismissing the same cannot be assailed by filing Letters Patent Appeal.
6. In view of the above, no ground is made out to entertain the present Letters Patent Appeal and hence, the same is dismissed.
[RAVI R TRIPATHI, J.] [G B SHAH, J.] msp Top