Gujarat High Court
Sharada R vs Asia Brown Bowery Ltd. & 2 on 14 July, 2014
Bench: Vijay Manohar Sahai, R.P.Dholaria
C/CA/6202/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 6202 of 2014
In LETTERS PATENT APPEAL NO. 794 of 2014
In SPECIAL CIVIL APPLICATION NO. 14449 of 2006
With
LETTERS PATENT APPEAL NO. 794 of 2014
In
SPECIAL CIVIL APPLICATION NO. 14449 of 2006
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SHARADA R....Applicant(s)
Versus
ASIA BROWN BOWERY LTD. & 2....Respondent(s)
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Appearance:
MR HASIT DILIP DAVE, ADVOCATE for the Applicant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 14/07/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI)
1. No useful purpose would be served in issuing notice to the respondents in delay condonation application for condoning the delay of about two months as the Letters Patent Appeal itself is not maintainable in view of the fact that the learned Single Judge has exercised powers under Article 227 of the Constitution of India in the impugned judgment dated 23rd January 2014 passed in Special Civil Application No.13933 of 2006 and allied matters.
2. In the writ petition, the order under challenge was passed by the Labour Court below application for recovery of the amount under Section 33(C)(2) of the Industrial Disputes Act. In para 10 of the impugned judgment, it is observed that the learned Single Judge has exercised the powers under Article 227 of the Constitution of India.
3. The Five Judges' Full Bench of this Court in the case of Gujarat Page 1 of 2 C/CA/6202/2014 ORDER 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, held as under : "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.
4. In view of the aforesaid Full Bench decision, the present Letters Patent Appeal itself is not maintainable. Hence, the present Letters Patent Appeal as well as civil application for condonation of delay stand dismissed. 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.
(V.M.SAHAI, J.) (R.P.DHOLARIA,J.) Jani Page 2 of 2