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Gujarat High Court

State Of Gujarat vs Ramsingbhai Ravjibhai Machhar & on 24 June, 2014

Author: Vijay Manohar Sahai

Bench: Vijay Manohar Sahai, R.P.Dholaria

        C/LPA/578/2013                                         JUDGMENT




    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           LETTERS PATENT APPEAL NO. 578 of 2013
                             In
         SPECIAL CIVIL APPLICATION NO. 4333 of 2012

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA

=========================================
  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 fair                   NO
      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 ?

=========================================
                  STATE OF GUJARAT....Appellant
                             Versus
         RAMSINGBHAI RAVJIBHAI MACHHAR & 1....Respondents
=========================================
Appearance :
MS MONALI BHATT, AGP for the Appellant.
MR PARITOSH CALLA, ADVOCATE for the Respondent No.2.
RULE SERVED for the Respondent No.1.
=========================================

   CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
          and
          HONOURABLE MR.JUSTICE R.P.DHOLARIA




                                   Page 1 of 4
         C/LPA/578/2013                                JUDGMENT



                     Date : 24/06/2014
                     ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI)

1. By way of the present Letters Patent Appeal, the appellant - original petitioner has challenged the judgment and order dated 10.4.2012 passed by the learned Single Judge in Special Civil Application Nos.4326 to 4349 of 2012 whereby the learned Single Judge was pleased to dismiss the writ petitions.

We have heard Ms. Monali Bhatt, learned Assistant Government Pleader appearing for the appellant.

2. In the writ petitions, the appellant - original petitioner has challenged the common judgment and award dated 21.4.2011 passed by the In-charge Presiding Officer, Labour Court, Dahod in Reference (LCD) No.535 of 2008 (old No.296 of 2001) to Reference (LCD) No.550 of 2008 (old No.311 of 2001), Reference (LCD) No.552 of 2008 (old No.312 of 2001) to Reference (LCD) No.559 of 2008 (Old No.319 of 2001), whereby the Reference Court has partly allowed the references and granted lump sum compensation to the workmen in lieu of reinstatement.

By the impugned judgment, the learned Single Judge dismissed the writ petition. Though the writ petition was titled as one under Article 226 of the Constitution of India, no writ of certiorari was issued by the learned Single Judge and, therefore, the writ petition was essentially under Article 227 of the Constitution of India as the learned Single Judge has exercised powers under Article 227 of the Constitution of India.

3. 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 has held as under :-

C/LPA/578/2013 JUDGMENT "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 before the Supreme Court."

C/LPA/578/2013 JUDGMENT

4. 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. Rule discharged. Interim relief, if any, stands vacated. 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. There shall be no order as to costs.

(V.M.SAHAI, J.) (R.P.DHOLARIA, J.) Savariya Page 4 of 4