Gujarat High Court
Jayesh S. Joshi vs Umreth Municipality on 5 December, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/LPA/405/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 405 of 2014
In
SPECIAL CIVIL APPLICATION NO. 14200 of 2007
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JAYESH S. JOSHI
Versus
UMRETH MUNICIPALITY
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Appearance:
MR MANAN A SHAH(5412) for the PETITIONER(s) No. 1
MR DEEPAK P SANCHELA(2696) for the RESPONDENT(s) No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
and
HONOURABLE MR.JUSTICE V. B. MAYANI
Date : 05/12/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE K.M.THAKER)
1. Heard Mr.G.M.Joshi, learned advocate for the appellant and Mr.D.P.Sanchela, learned advocate for the respondent Municipality.
2. In connection with the present appeal the delay caused in filing appeal came to be condoned vide order dated 17.2.2014.
3. However, thereafter the appeal came to be disposed of vide order dated 11.6.2014. The said dated 11.6.2014 reads thus : Page 1 of 6 C/LPA/405/2014 ORDER "1. We have heard learned advocate Mr.A.J.Shastri, learned advocate appearing for the appellant.
2. By way of the present Letters Patent Appeal, the appellantoriginal petitioner has challenged the order dated 07.12.2012 passed by the learned Single Judge in Special Civil Application No.14200 of 2007, by which, learned Single Judge has dismissed the writ petition, wherein the order dated 6.3.2007 passed by the Labour Court was challenged.
3. In our opinion, the learned Single Judge while dismissing the writ petition has not issued a writ of certiorari and the Labour Court was not made a party and therefore, the decision of the Five Judges' Full Bench of this Court will apply to the facts of this case.
4. The Five Judges' Full Bench of this Court in the case of Gujarat State Road Transport Corporation v. Firoze M. Mogal and another, 2014 GLH 1 rendered in Letters Patent Appeal No. 1149 of 2002, Dated : 26.12.2013, has held as under : (M) (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 Page 2 of 6 C/LPA/405/2014 ORDER 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 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.
5. In view of the aforesaid Full Bench decision, Page 3 of 6 C/LPA/405/2014 ORDER the present Letters Patent Appeal is not maintainable. Hence, the present Letters Patent Appeal stands dismissed as not maintainable. We, however, make it clear that we have otherwise, not gone into the merit and the dismissal of this appeal will not stand in the way of the appellant in seeking appropriate remedy before the appropriate forum in accordance with law.
6. In view of dismissal of this Letters Patent Appeal, Civil Application No.3162 of 2013 also stands disposed of."
4. The learned advocates for the appellant and respondent submitted that subsequently by decision of the Apex Court in other similar case, all appeals which were disposed of by means of order similar to the order dated 11.6.2014 came to be restored. Accordingly this appeal is revived/restored and is being listed for admission hearing.
5. Learned advocate for the appellant clarified that before the order dated 11.6.2014 came to be passed any order admitting the petition was not passed.
6. We have heard learned advocates for the appellant and respondent - Municipality.
7. In the present appeal order dated 7.12.2012 Page 4 of 6 C/LPA/405/2014 ORDER passed by the learned Single Judge in Special Civil Application No.14200 of 2007 is challenged on diverse ground.
8. One of the objection against the order is that reasons in support of the final decision or with regard to the contentions raised by the petitioner are not recorded. Beside this, it is also claimed that the learned Labour Court, in its award, which was challenged in the petition, categorically held that the workmen's termination was on illegal retrenchment. However, learned Labour Court failed to award reinstatement and also did not grant backwages. Moreover, learned Labour Court restricted the award of compensation to the date of termination instead of quantifying the compensation in consonance with the findings recorded in the award. It is claimed that the learned Single Judge did not consider the said aspect and recorded a finding contrary that there is no breach of Section 25F to the findings recorded by the learned Labour Court.
9. The learned advocate for the respondent contended that neither the award passed by the learned Labour Court nor the order dated 7.12.2012 suffer from any error. The Page 5 of 6 C/LPA/405/2014 ORDER direction passed by the learned Labour Court awarding compensation is just and proper and the learned Single Judge rightly did not interfere with the above.
10. Having regard to the contentions raised by the learned advocates the issue is discussed and decided by the learned Labourt Court and the order dated 7.12.2012, we are of the view that appeal deserves consideration.
11. Admit.
12. To be listed for final hearing in April, 2019.
(K.M.THAKER, J) (V. B. MAYANI, J) K.K. SAIYED Page 6 of 6