Gujarat High Court
Anand Municipality Through Chief ... vs Avinash Ravjibhai Meckwan & on 23 June, 2014
Author: Vijay Manohar Sahai
Bench: Vijay Manohar Sahai, R.P.Dholaria
C/LPA/250/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 250 of 2013
In
SPECIAL CIVIL APPLICATION NO. 11548 of 2005
With
CIVIL APPLICATION NO. 6379 of 2014
In
LETTERS PATENT APPEAL NO. 250 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI Sd/-
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA Sd/-
=========================================
1. Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the NO
fair copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of
the constitution of India, 1950 or any
order made thereunder ?
5. Whether it is to be circulated to the civil NO
judge ?
===========================================================
ANAND MUNICIPALITY THROUGH CHIEF OFFICER....Appellant
Versus
AVINASH RAVJIBHAI MECKWAN & 1....Respondents
=========================================
Appearance :
MR DEEPAK P SANCHELA, ADVOCATE for the Appellant.
MR AS SUPEHIA, ADVOCATE for the Respondent No.1.
RULE SERVED for the Respondent No.2.
=========================================
Page 1 of 4
C/LPA/250/2013 JUDGMENT
CORAM:HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 23/06/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI)
1. We have heard Mr. Deepak Sanchela, learned counsel appearing for the appellant and Mr. Hemal Dave, learned counsel holding brief of Mr. A.S. Supehia appearing for the respondent No.1.
2. This Letters Patent Appeal has been filed by the appellant - original petitioner challenging the judgment and order dated 7.2.2013 passed by the learned Single Judge in Special Civil Application No.11548 of 2005 by which the learned Single Judge has partly allowed the writ petition filed by the appellant - original petitioner The impugned award qua back wages was quashed and set aside and the award qua reinstatement with continuity of service was confirmed. The appellant - original petitioner was also directed to reinstate the respondent No.1 herein within a period of one month from the date of the judgment.
3. Learned counsel appearing for the appellant has urged that in the writ petition, originally the Labour Court was joined as party - respondent. However, thereafter as per the direction of the Court, the Labour Court was deleted as party - respondent in the writ petition. Hence, the present Letters Patent Appeal is maintainable and the decision of Full Bench in the case of Gujarat State Road Transport Corporation v. Firoze M. Mogal and another, 2014 GLH 1 will not be applicable in the facts of the case.
4. The Five Judges Full Bench of this Court in the case of Page 2 of 4 C/LPA/250/2013 JUDGMENT Gujarat State Road Transport Corporation v. Firoze M. Mogal and another, 2014 GLH 1 has held 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.
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 Page 3 of 4 C/LPA/250/2013 JUDGMENT before the Supreme Court."
5. In view of the aforesaid Full Bench decision, 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.
In view of disposal of Letters Patent Appeal, Civil Application does not survive and hence, the same stands disposed of.
Sd/-
(V.M.SAHAI, J.) Sd/-
(R.P.DHOLARIA, J.) Savariya Page 4 of 4