(Per : HONOURABLE MR.JUSTICE A.L.DAVE) Present appeal challenges judgment and order dated 26.08.2010 rendered in Special Civil Application No.10806 of 2000 as well as order dated 22.07.2011 rendered in Miscellaneous Civil Application No.1592 of 2011. The said petition was preferred by present appellant, who was an employee / workman who came to be terminated on 30.04.1990. He, therefore, raised an industrial dispute in respect of which reference was made which was registered by Labour Court, Vadodara being Reference (LCV) No.1043 of 1993. The Labour Court, ultimately, partly allowed the said reference by judgment and award dated 21.09.1999 and the same was challenged by filing petition before the learned Single Judge on 27/04/2011 by the present respondents.
1.1 The learned Single Judge after considering the merits of the case, partly allowed the petition and gave directions thus:
"7. For the foregoing reasons, present petition is hereby partly allowed. The impugned judgment and award passed by the Labour Court is hereby quashed and set aside only qua backwages. The judgment and award qua reinstatement is upheld. The period between the year 1990 i.e. retrenchment of the respondent till the date of filing of the Reference, be treated as dies non. The earlier service of the respondent i.e. before retrenchment, be taken into consideration for the purpose of reaching the age of superannuation as well as pension and retiral dues, if any, and not for any increment or other purpose. It is hereby clarified that the said period will not be treated as any break in service and service be considered as continuous one.
8. It is, however, clarified that the respondent be reinstated, if not reinstated till date, within a period of ONE MONTH from today. The ensuing monetary benefits will be released by the petitioner in favour of the respondent within a period of THREE MONTHS from today. The petition stands disposed of accordingly. Rule is made absolute to the aforesaid extent. No order as to costs."
2. Thereafter, the appellant has preferred Miscellaneous Civil Application No.1592 of 2011 for review / recall the judgment and order dated 26.08.2010, which was dismissed by order dated 22.07.2011 by the learned Single Judge of this Court.
3. The order passed in Special Civil Application No.10806 of 2000 and in Miscellaneous Civil Application No.1592 of 2011 are the orders impugned in this appeal which are preferred invoking Clause-15 of the Letters Patent.
4. 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 for the appellant 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.
5. We are afraid we will not be able to accept the contention of learned advocate for the appellant 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.
6. 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.
7. In view of dismissal of the main appeal, Civil Application is disposed of accordingly.
8. Learned advocate for the appellant submitted that both the orders were passed by the learned Single Judge after implementation of the award of the Labour Court by the other side and the order of the learned Single Judge has resulted in recovery by the respondent Corporation after its full implementation.
9. In light of peculiar facts, we leave it open to the appellant to make a representation to the respondent Corporation setting out all the details and if such a representation is made, the same would be considered by the Corporation sympathetically, without adopting a technical or technically legal approach.
[A.L.
Dave, J.] [Mohinder Pal, J.] #MH Dave Top