Gujarat High Court
Ajaysinh Savjubha Chudasama vs Division Controller & on 21 January, 2015
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/CA/254/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 254 of 2015
In
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 1336 of 2014
In
SPECIAL CIVIL APPLICATION NO. 1314 of 2014
With
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 1336 of 2014
In
SPECIAL CIVIL APPLICATION NO. 1314 of 2014
With
CIVIL APPLICATION (STAMP NUMBER) NO. 14554 of 2014
In
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 1336 of 2014
With
CIVIL APPLICATION NO. 255 of 2015
In
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 1332 of 2014
TO
CIVIL APPLICATION NO. 256 of 2015
In
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 1334 of 2014
With
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 1332 of 2014
In
SPECIAL CIVIL APPLICATION NO. 1314 of 2014
With
CIVIL APPLICATION (STAMP NUMBER) NO. 14543 of 2014
In
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 1332 of 2014
With
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 1334 of 2014
In
SPECIAL CIVIL APPLICATION NO. 1314 of 2014
With
CIVIL APPLICATION (STAMP NUMBER) NO. 14549 of 2014
In
Page 1 of 14
C/CA/254/2015 ORDER
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 1334 of 2014
With
CIVIL APPLICATION NO. 258 of 2015
In
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 1335 of 2014
With
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 1335 of 2014
In
SPECIAL CIVIL APPLICATION NO. 1314 of 2014
With
CIVIL APPLICATION (STAMP NUMBER) NO. 14551 of 2014
In
LETTERS PATENT APPEAL (STAMP NUMBER) NO. 1335 of 2014
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AJAYSINH SAVJUBHA CHUDASAMA....Applicant(s)
Versus
DIVISION CONTROLLER & 1....Respondent(s)
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Appearance:
MR P P MAJMUDAR, ADVOCATE for the Applicant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 21/01/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE KS JHAVERI) Order in Applications for Condonation of Delay :
Sufficient cause has been shown by the applicants for condoning the delay caused in filing the appeals. Hence, the delay is condoned. The applications stand disposed of accordingly.
Order in Letters Patent Appeals (Stamp) :Page 2 of 14 C/CA/254/2015 ORDER
1. Identical matters came to be disposed of by this Court by a common order of even date on the ground that the appeals were not maintainable. The said order is reproduced hereunder for ready reference;
"1. These appeals involve common questions on law and facts and hence, they are decided by this common order.
2. The issue involved in these appeals is squarely covered by a Full Bench decision of this Court rendered in the case of Gujarat State Road Transport Corporation v. Firoz M. Mogal and another reported in 2014 (1) GLH 01. In identical case, this Court had disposed of a group of appeals vide order passed in Letters Patent Appeal No.1252 of 2014 & allied matters dated 06.01.2015. For ready reference, the said order is reproduced hereunder;
""1. By way of these appeals, the appellantsoriginal respondents have challenged the order of the learned Single passed in different writ petitions, whereby the learned Single Judge has allowed the said petitions.
2. In light of the decision of the Larger Bench in the case of Gujarat State Road Transport Corporation Vs. Firoze M. Mogal and Anr. reported in 2014(1) GLH, 1, and the decision of the Division bench of this Court rendered in Letters Patent (Stamp Number) No.1184 of 2014 and other allied matters, the present appeals are not maintainable. It is necessary to reproduce the decision rendered in Letters Patent Appeal (stamp Number) No.1184 of 2014 and other allied matters, which reads as under: "1. All the matters are at office objection stage.
2. Learned counsel Mr. Vasavada appearing for the appellants states that the issue which Page 3 of 14 C/CA/254/2015 ORDER arises for consideration in the present group of appeals is already covered by the decision of this Court in Letters Patent Appeal No.1185 of 2014 and allied matters decided on 11.11.2014.
However, he prays that similar order be passed.
3. We may record that in the aforesaid matters, this Court has observed thus:
1. As the common questions arise in all the appeals, they are being considered simultaneously. All the appeals are directed against the order passed by the learned Single Judge in the respective main Special Civil Applications whereby award passed by the Industrial Tribunal (Tribunal) has been quashed and set aside.
2. We have heard Mr. Bhaskat P. Tanna, learned Senior Counsel appearing with learned advocate Mr. Pandya and learned advocate Mr. Majmudar for the appellants. We have also heard Mr. Shalin Mehta, learned Senior Advocate appearing with learned advocate Mr. Hardik C. Raval for respondent No.1 on caveat.
3. A preliminary contention was raised by the caveator on the aspect of maintainability of the Letters Patent Appeal before the Division Bench under Clause 15 of the Letters Patent by relying upon the judgment of the Larger Bench of this Court in the case of Gujarat State Road Transport Corporation versus Firoze M. Mogal and another reported in 2014 (1) GLH (FB) page 1 and it was submitted that the learned Single Judge has exercised the power under Article 227 of the Constitution and, therefore, the appeal may not be maintainable.
Page 4 of 14 C/CA/254/2015 ORDER4. Whereas the learned counsels appearing for the appellants contended that since the learned Single Judge has not mentioned any particular Article of the Constitution for exercise of the powers and in the main petition before the learned Single Judge, it was also shown in the title as the petition under Article 226 and 227 of the Constitution and as the writ of certioriari was also prayed in the main special civil application, it could be termed that the learned Single Judge also exercised power under Article 226 of the Constitution and, therefore, the appeal under clause 15 of the Letters Patent could be maintained. Learned counsels appearing for the appellants also contended that the learned Single Judge while exercising power has recorded finding that there was perversity in the finding of the Tribunal while passing the award and the learned Single Judge considered certain material which was not the issue before the Tribunal and, therefore, the only source of power could be under Article 226 of the Constitution. Hence the appeals could be maintained.
5. We may record that the Larger Bench of this Court in the above judgment in the case of GSRTC (supra), after considering various decisions of the apex court, at paragraph 254, recorded final conclusion as under:
254. In view of our aforesaid analysis, we proceed to record our conclusion in seriatim.
i) A power to issue the writ is original and the jurisdiction exercised is original jurisdiction.Page 5 of 14 C/CA/254/2015 ORDER
ii) Proceedings under Article 226 of the Constitution of India are in exercise of original jurisdiction of the High Court whereas the proceedings initiated under Article 227 of the Constitution are supervisory in nature.
iii) When a writ is issued under Article 226 of the Constitution, it is issued in exercise of its original jurisdiction whether against the Tribunal or inferior Court or administrative authority.
iv) The power exercised under Article 226 of the Constitution is in exercise of original jurisdiction and not supervisory jurisdiction.
v) Exercise of supervisory power and power of superintendence is not to be equated with the original or supervisory jurisdiction.
vi) The learned Single Judge must have exercised original writ jurisdiction as distinguished from appellate jurisdiction, revisional jurisdiction or power of superintendence in order to maintain an appeal under Clause 15 of the Letters Patent.
Vii) A writ of certiorari lies in appropriate cases against the order of Tribunal or Court subordinate to the High Court where such a Court, or Tribunal acts not only as an authority of first instance but even if such a Court or Tribunal acts as an appellate or revisional authority provided a case for a writ of certiorari is made out to the satisfaction of the Court concerned. Thus, if an appellate or revisional order of the Court or Tribunal, subordinate to a High Court, suffers from a patent error of law or Page 6 of 14 C/CA/254/2015 ORDER jurisdiction, the same could be challenged before the High Court with the aid of Article 226 of the Constitution and it could not be said that such an appellate or revisional order of the Court or Tribunal could be challenged with the aid of Article 227 alone.
viii) The High Court, when exercising jurisdiction to issue a writ of certiorari does not act either as a Court of Appeal or that of Revision and it has no power to correct either findings of fact or even errors of law except where the error of law is patent on the face of the record. The sole function of the Court is to correct the persons or Tribunals exercising judicial or quasi judicial functions when they assume jurisdiction which they do not possess, or when they refuse to exercise jurisdiction which is vested in them by law, or when in the exercise of their jurisdiction they violate principles of natural justice.
ix) The term original jurisdiction as contained in Clause 15 of the Letters Patent should be understood in context with the power of the High Court to issue a high prerogative writ like a writ of certiorari under Article 226 of the Constitution of India. It is that original power to issue a writ under Article 226 of the Constitution of India which makes the proceedings original and the exercise of such power will always be original jurisdiction.
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 Page 7 of 14 C/CA/254/2015 ORDER 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.
xi) If the learned Single Judge, in exercise of a purported power under Article 227 of the Constitution sets aside the order of Tribunal or Court below and at the same time, the essential conditions for issue of writ of certiorari are absent, no appeal will be maintainable against such order in view of the specific bar created under Clause 15 of the Letters Patent itself and such an order can be challenged only by way of a Special Leave Petition before the Supreme Court.
To put it very explicitly, take a case where a petition is only under Article 227 of the Constitution of India, invoking superintending powers of the High Court and not under Article 226 of the Constitution of India. After examining the matter, if the court finds substance in the petition and sets aside the order of an authority, court or a tribunal, then against Page 8 of 14 C/CA/254/2015 ORDER such an order, an LPA would not lie on the argument that since the court has set aside the order it has decided the matter on merits having found substance in the same.
To put it in other words, once a petition is under Article 227 of the Constitution of India, and while entertaining such a petition under Article 227 of the Constitution of India, if the court allows a petition by setting aside the order impugned, then against such an order no LPA would lie.
xii) If a learned Single Judge, in exercise of a purported power under Article 227 of the Constitution modifies the order of Tribunal/Authority or Court below and thereby partly allows a petition to a certain extent, then in such circumstances, it could not be said that the Court exercised its certiorari jurisdiction and no appeal will be maintainable against such order in view of the specific bar created under Clause 15 of the Letters Patent itself However, if a learned Single Judge, in purported exercise of power under Article 226 of the Constitution of India, issues a writ of certiorari, although the same is not maintainable, an appeal under Clause 15 of the Letters Patent would nevertheless be maintainable against such order.
To put it in other words, take a case where a party on his own invokes supervisory jurisdiction under Article 227 of the Constitution of India, and in such a petition, the Court issues a writ of certiorari, then against such an order an LPA would be maintainable.
Page 9 of 14 C/CA/254/2015 ORDERTo put it explicitly clear, take a case where in a petition neither there is a prayer for issue of a writ of certiorari nor the Tribunal/Authority or Court whose order is impugned is impleaded as a party respondent, and despite such being the position, if the Court proceeds to issue a writ of certiorari, then against such an order an LPA would be maintainable.
xiii) A combined application under both Articles 226 and 227 of the Constitution of India can be entertainable only when the court fees payable for invoking both the provisions have been paid in aggregate. If court fees payable for invoking only one of the Articles 226 and 227 have been affixed, the Court before dismissing the application on that ground may give option to the petitioner to choose only one of such provisions, if he does not pay the balance amount of court fees and the application should be treated accordingly. It is, however, for the Court to decide whether the facts of the case justify invocation of original jurisdiction or it is a fit case for exercising supervisory jurisdiction.
xiv) The facts would justify invocation of the original jurisdiction under Article 226 of the Constitution only if all the requisite conditions for issue of a writ of certiorari are made out by the petitioner and the Court concerned is convinced that the petitioner has been able to point out a serious or a palpable error in the order impugned going to the root of the jurisdiction. In the absence of such a glaring infirmity or an error patent on the face of the record, the party would not be justified Page 10 of 14 C/CA/254/2015 ORDER in invoking original jurisdiction of the High Court under Article 226 of the Constitution of India for issue of a writ of certiorari.
xv) When a remedy for filing the Revision under Section 115 of the Civil Procedure Code has been expressly barred, then in such a case, a petition under Article 227 of the Constitution of India would lie and not a writ petition under Article 226 of the Constitution of India. When the Parliament has thought fit to restrict the powers under Section 115 of the Code with a definite object, then, under such circumstances an order which is not revisable under Section 115 of the Code of Civil Procedure cannot be challenged by way of filing a Writ Petition under Article 226 of the Constitution invoking extraordinary jurisdiction of the High Court and that too an interlocutory order passed by the Civil Court in a Regular Suit proceedings.
6. Aforesaid shows that if the learned Single Judge has, in purported exercise of power under Article 227, set aside the order of the Tribunal or the Court below and if the essential conditions for issuance of writ of certiorari are absent, no appeal will be maintainable. Further, it has been also held that if once the petition is under Article 227 of the Constitution and while maintaining the petition under Article 227 of the Constitution, if the Court allows the petition by setting aside the order impugned, then, against such order, no Letters Patent Appeal would lie.
7. The reasons recorded by the learned Single Judge read with the facts of the present case in light of the above refereed legal Page 11 of 14 C/CA/254/2015 ORDER position as held by the Larger Bench of this Court show that the learned Single Judge has, for all purposes, exercised power under Article 227 of the Constitution. Learned Single Judge has not recorded any finding that the Tribunal had committed error of jurisdiction or that the Tribunal had no jurisdiction to exercise the power. Be it recorded that the appellants original respondents are workmen who had invoked the jurisdiction of the Tribunal under the Industrial Disputes Act, 1947 and, therefore, it would not lie in the mouth of the workmen to contend that the Tribunal had no jurisdiction to exercise the power. Whether there is any error in exercise of power or consideration of any material or error in interpretation of condition20 or there was delay in approaching before the Tribunal are the aspects which could be considered by the learned Single under Article 227 of the Constitution and the learned Single Judge having examined the relevant aspect, has found that the order of the Tribunal deserves to be quashed and set aside and is quashed and set aside. Under the circumstances, we find that the learned Single Judge has, for all the purposes, exercised power under Article 227 of the Constitution. Further, no order or direction has been issued by the learned Single Judge which can be said as originated for the first time in a writ jurisdiction for which the source may be available under Article 226 of the Constitution.
8. Attempt to contend that in the petition, it was mentioned as also under Article 226 of the Constitution and that the prayers were made in the petition for the writ of certiorari, in our view, would hardly make Page 12 of 14 C/CA/254/2015 ORDER any difference for considering the aspects of maintainability of the appeal under Clause 15 of the Letters Patent and the reason being that exercise of jurisdiction by the learned Single Judge would be the real test for considering the aspects of maintainability of appeal under clause 15 of the Letters Patent. Nowhere in the order of the learned Single Judge, there is reference to the exercise of power of writ of certiorari nor even any discussion for the jurisdiction of the Tribunal and any error of jurisdiction committed by the Tribunal. Under the circumstances, such attempt cannot be countenanced.
9. In view of the above, as the Larger Bench of this Court has taken the above referred view, we are bound by the said decision and the appeals under Clause 15 of the Letters Patent cannot be maintained. Hence the appeals are disposed of as not maintainable under clause 15 of the Letters Patent.
10. In view of the order passed in the appeals, the Civil Applications would not survive and the same shall stand disposed of as not maintainable.
4. As the issue is already covered, the present appeals shall also stand disposed of accordingly.
3. In that view of the aforesaid, all these appeals stand disposed of as not maintainable.
4. Since the main appeals are dismissed, the civil Applications do not survive and the same are also stands disposed of accordingly.""
2. In view of the above, these appeals will be governed by the Page 13 of 14 C/CA/254/2015 ORDER principle rendered in the above decision of this Court and accordingly, all the appeals are dismissed, as being not maintainble.
3. Consequently, the civil applications also stand dismissed. Registry is directed to place a copy of this order in each of the matters.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) Pravin Page 14 of 14