Indian Kanoon - Search engine for Indian Law

Gujarat High Court

Nandkishore Shravan Ahirrao vs Kosan Industries (P) Ltd on 24 March, 2014

Author: K.J.Thaker

Bench: Vijay Manohar Sahai, K.J.Thaker

            C/CA/5613/2013                                      ORDER



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 5613 of 2013

     In LETTERS PATENT APPEAL (STAMP NUMBER) NO. 697 of 2013
         In SPECIAL CIVIL APPLICATION NO. 8536 of 2008
===========================================================
          NANDKISHORE SHRAVAN AHIRRAO....Applicant(s)
                            Versus
            KOSAN INDUSTRIES (P) LTD.....Respondent(s)
================================================================
Appearance:
MR P C CHAUDHARI, ADVOCATE for the Applicant(s) No. 1
MR AK CLERK, ADVOCATE for the Respondent(s) No. 1
================================================================
            CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR
                   SAHAI
                   and
                   HONOURABLE MR.JUSTICE K.J.THAKER

                                 Date : 24/03/2014


                                     ORAL ORDER

(PER : HONOURABLE MR.JUSTICE K.J.THAKER)

1. By way of this Appeal, the appellant has challenged the judgment and order of the learned Single Judge, Dated:

05.02.2013, rendered in Special Civil Application No.8536 of 2008, whereby the learned Single Judge has partly allowed the writ petition.

2. Heard, Mr.P.C.Chaudhari, learned Advocate for the applicant and Mr.A.K.Clerk, learned advocate for the respondent and perused the material on record as well as the order impugned.

3. By way of the writ-petition, the appellant sought to challenge the judgment and award dated 27.02.2008 passed by the Labour Court, Surat, in Reference (LCS) No.103 of 1998.

Admittedly, the Labour Court was not made a party before the learned Single Judge. The Full Bench of this Court in a recent decision in Letters Patent Appeal No. 596 of 2008 and cognate matters has hold that an LPA challenging the order of the Labour Court would not be maintainable, as the learned Single Judge exercised the powers under Article 227 of the Constitution of India. Moreover, the Division Bench of this Court vide its order dated 26.06.2013 passed in LPA No. 641 of 2013, hold that no LPA is maintainable where the powers has been exercised by the learned Single Judge under Article 227 of the Constitution of India and the appellant cannot be permitted to join Labour Court as a party respondent for the first time in LPA. Similarly, in the case on hand also, we cannot permit the appellant to implead the Labour Court as a party in LPA, since, it was not a party before the learned Single Judge. The order of the Division Bench of this Court dated 26.06.2013, reads as under;

"This appeal under clause 15 of the Letters Patent is at the instance of an employer and is directed against an order dated 8th January 2013 passed by a learned Single Judge of this Court in Special Civil Application No. 334 of 2009 whereby His Lordship held that in facts of the case, there was no necessity to interfere with the award dated 19th May 2008 passed by the Labour Court, Surat in Reference[LCS] No. 366 of 2005.

It appears that although the writ application was described as one under both Articles 226 and 227, the Labour Court whose order was sought to be quashed was not made a party, and at the same time, the petitioner prayed for quashing of the aforesaid award by which the Labour Court reinstated the workman with continuity of service but without back wages.

As indicated earlier, the learned Single Judge has refused to interfere with the award after considering the evidence on record.

Such being the position, we are of the view that the learned Single Judge really exercised jurisdiction under Page 2 of 4 C/CA/5613/2013 ORDER Article 227 of the Constitution of India as there was no scope of exercising the power of issue of writ of certiorari when the Labour Court itself was not made a party before the Court.

At this stage, Mr. Joshi, the learned advocate on behalf of the appellant, prays for joining the Labour Court as a party in this appeal, though a substantive application to that effect has not been filed.

In our opinion, the learned Single Judge having already exercised jurisdiction under Article 227 of the Constitution of India by not interfering, no appeal is maintainable against such order, and in such an appeal, we now cannot permit the appellant to join the Labour Court as a party so as to convert the writ application which has already been disposed of to one under Article 226 of the Constitution of India for fresh adjudication where issue of writ of certiorari would be possible.

On consideration of the entire materials on record, we, thus, find that this appeal is not maintainable and is dismissed accordingly. Interim relief granted earlier stands vacated forthwith.

We, however, make it clear that we have not gone into the merits of the case and the dismissal of the appeal will not stand in the way of the appellant in seeking appropriate remedy before the appropriate forum in accordance with law."

3. Thus, in view of the aforesaid order of the Division Bench of this Court as well as the judgment of the Full Bench of this Court rendered in Letters Patent Appeal No. 1149 of 2002, Dated : 26.12.2013, in the case of "GUJARAT STATE ROAD TRANSPORT CORPORATION VS. FIROZE M MOGAL & OTHERS" and the allied matters, no purpose would be served by condoning the delay occurred in filing the LPA and the civil application as well as the appeal deserve to be dismissed and are DISMISSED as not maintainable. Rule / Notice, if any, stands discharged. Interim relief, if any, stands vacated. No order as to costs.

(V.M.SAHAI, J.) Page 3 of 4 C/CA/5613/2013 ORDER (K.J.THAKER, J) Ashish Tripathi Page 4 of 4