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Gujarat High Court

Fulchand Narottam Chauhan vs Echjay Industires Limited on 2 September, 2014

Author: Jayant Patel

Bench: Jayant Patel, C.L. Soni

         C/LPA/2316/2010                              ORDER



         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             LETTERS PATENT APPEAL NO. 2316 of 2010
                                    In
           SPECIAL CIVIL APPLICATION NO. 13245 of 2008
                                  With
              LETTERS PATENT APPEAL NO. 2317 of 2010
                                    In
            SPECIAL CIVIL APPLICATION NO. 13055 of 2008
                                  With
              LETTERS PATENT APPEAL NO. 2318 of 2010
                                    In
             SPECIAL CIVIL APPLICATION NO. 592 of 2009
================================================================
                     FULCHAND NAROTTAM CHAUHAN
                                 Versus
                       ECHJAY INDUSTIRES LIMITED
================================================================
Appearance:
MR P P MAJMUDAR, ADVOCATE for the Appellant(s) No. 1
MR SP MAJMUDAR, ADVOCATE for the Appellant(s) No. 1
MR KM PATEL, SR. ADVOCATE with MR VARUN K.PATEL, ADVOCATE for
the Respondent(s) No. 1
================================================================
        CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
               and
               HONOURABLE MR.JUSTICE C.L. SONI

                             Date : 02/09/2014


                           COMMON ORAL ORDER

(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)

1. All the appeals are directed against the order passed by the learned Single Judge dated 10.8.2010 in the respective Special Civil Applications, whereby the learned Single Judge for the reasons recorded in the order has dismissed the petitions arising from the award passed by the Labour Court in the respective matters.

2. We have heard learned counsel Mr. Majmudar for the appellants and learned senior counsel Mr. K.M. Patel with learned counsel Mr. Varun Patel for the respondent.

3. It is an admitted position that the main Special Civil Applications were preferred against the award passed by the Labour Court in exercise of the power under the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). The appellants- petitioners are the persons who raised the dispute under the Act and such dispute came to be referred to the Labour Court for adjudication. To say in other words, the appellants- petitioners are the persons who invoked the jurisdiction of the competent authority and subsequently, the Court under the Act. It was not the contention of the appellants nor any such contention has been raised before the learned Single Judge that the Labour Court had no jurisdiction to exercise the power and consequently, the writ of certiorari may be issued.

4. Further, the Presiding Officer of the Labour Court was not joined as party. Perusal of the order passed by the learned Single Judge shows that the learned Single Judge has examined the merits of the order passed by the Labour Court and recorded the finding that he was in complete agreement with the reasoning assigned by the Labour Court and no interference was called for. Therefore, it can be said that the learned Single Judge simply confirmed the award passed by the Labour Court and did not interfere with the same. Such exercise of power is under Article 227 of the Constitution.

5. At this stage, we may refer to the decision of the Larger Bench of this Court in the case of Gujarat State Road Transport Corporation Vs. Firoze M. Mogal and Another reported in 2014(1) GLH (FB)1. In the said decision, the Larger Bench of this Court made observations in para 244 as under:-

"244. At this stage, it may not be out of place to state that many times the Tribunal may not have been impleaded in the main writ application, but for the first time in the Letters Patent Appeal, the Tribunal is joined as a party respondent. We are of the opinion that by impleading the Tribunal as a party respondent for the first time in the Letters Patent Appeal, the nature or the character of the proceedings before the learned Single Judge would not change. If the Tribunal was not made a party respondent in the main petition then the learned Single Judge is left with no other option but to treat it not as a writ application under Article 226 of the Constitution but just a simple petition under Article 227 of the Constitution. Once, the learned Single Judge treats the petition as one under Article 227 of the Constitution and decides the same in exercise of its supervisory jurisdiction then no appeal would lie under Clause 15 of the Letters Patent even if the Letters Patent Bench has permitted the appellant to join the Tribunal for the first time in appeal. We are of the firm opinion that the Letters Patent Bench should not permit the Tribunal to be impleaded for the first time in appeal."

Thereafter, the Larger Bench made concluding observations at para 254(x) as under:-

"x) If the Special Civil Application is described as one not only under Article 226 of the Constitution, but also under Article 227 of the Constitution of India and the Court or the Tribunal whose order is sought to be quashed, is not made a party, the application is not maintainable as one for the relief of certiorari in the absence of the concerned Tribunal or Court as party, but the same may be treated as one under Article 227 of the Constitution of India. If the Court or Tribunal is not impleaded as a party respondent in the main petition, then by merely impleading such court or tribunal for the first time in the Letters Patent Appeal will not change the nature and character of the proceedings before the learned Single Judge. By merely impleading such a Court or Tribunal for the first time in the LPA, the appeal could not be said to be maintainable, if the proceedings before the learned Single Judge remained in the nature of supervisory proceedings under Article 227 of the Constitution."

6. In view of the aforesaid observations, when the Presiding Officer of the Labour Court was neither joined as party nor the question arose before the learned Single Judge for issuance of writ of Page 3 of 4 C/LPA/2316/2010 ORDER certiorari and when the learned Single Judge has for all purposes exercised the power under Article 227 of the Constitution, the present appeals under Clause 15 of the Letters Patent cannot be maintainable. Hence, the present appeals are not entertained and are dismissed. Considering the facts and circumstances, no order as to costs.

(JAYANT PATEL, J.) (C.L.SONI, J.) Omkar Page 4 of 4