Gujarat High Court
Bayer Diagnostic Ltd Now Known As ... vs Labour Court & on 11 March, 2014
Author: K.J.Thaker
Bench: Vijay Manohar Sahai, K.J.Thaker
C/LPA/813/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 813 of 2013
In CIVIL APPLICATION NO. 2236 of 2013
In SPECIAL CIVIL APPLICATION NO. 701 of 2013
With
CIVIL APPLICATION NO. 6267 of 2013
In
SPECIAL CIVIL APPLICATION NO. 701 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial 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 judge ?
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BAYER DIAGNOSTIC LTD NOW KNOWN AS SIEMENS MEDICAL &
1....Appellant(s)
Versus
LABOUR COURT & 1....Respondent(s)
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Appearance:
MR UDAI JOSHI, ADVOCATE for M/S TRIVEDI & GUPTA, ADVOCATE for the
Page 1 of 5
C/LPA/813/2013 JUDGMENT
Appellant(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 11/03/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE K.J.THAKER)
1. We have heard Mr.Udai Joshi, learned advocate for M/s. Trivedi & Gupta, learned advocate appearing for the appellants.
2. By way of this appeal, the appellants have challenged the impugned order dated 05.04.2013 passed by the learned Single Judge in Civil Application No. 2236 of 2013 in Writ Petition being Special Civil Application No.701 of 2013.
3. It is admitted position that before the learned Single Judge, the order in question was of the Labour Court, Vadodara in Reference (LCV) No.857 of 2003. Though, the writ petition was titled as one under Article 226 and 227 of the Constitution of India, but in fact, the petition is under Article 227 of the Constitution of India. In the main petition, the learned Single Judge has passed the following order:
"RULE.
Notice as to interim relief, returnable on 26 th February, 2013. There shall be ad interim relief in terms of paragraph 10(D) only qua back wages on condition that the respondent No.2 will be reinstated before the next returnable date."
4. Thereafter, in Civil Application No. 2236 of 2013 for Page 2 of 5 C/LPA/813/2013 JUDGMENT further directions, the learned Single Judge has passed the following order:
"1. This application is filed praying for modification of the order dated 24.01.2013 passed by this Court in the main matter being Special Civil Application No. 701 of 2013 as regards reinstatement of the opponent no. 2 and stay the impugned award passed by the Labour Court, Vadodara in Reference (LCV) No. 857 of 2003 as regards reinstatement of opponent no. 2 on condition of the applicant no. 1 complying with the provisions of Section 17-B of the Industrial Disputes Act, 1947.
2. Having heard learned advocates for both the sides, this court is of the opinion that the order dated 24.01.2013 passed by this Court in the main matter provides for ad-interim relief and therefore confirmation of the same, if any, shall be in due course by the appropriate court taking up such matters on the returnable date. Any relief qua section 17-B of the Act as prayed for is working against the employees in the present scenario and therefore this court is not inclined to grant any relief qua Section 17-B at this stage. However, if the applicant is aggrieved by the order dated 24.01.2013, it shall be open to the applicant to take appropriate steps for payment of current wages under Section 33(C)(2). Application stands disposed of accordingly."
5. 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 :-
"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 Page 3 of 5 C/LPA/813/2013 JUDGMENT 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.
xii)If a learned Single Judge, in exercise of a purported power under Article 227 of the Constitution modifies the order of Tribunal/Authority or Court below and thereby partly allows a petition to a certain extent, then in such circumstances, it could not be said that the Court exercised its certiorari jurisdiction and no appeal will be maintainable against such order in view of the specific bar created under Clause 15 of the Letters Patent itself.
However, if a learned Single Judge, in purported exercise of power under Article 226 of the Constitution of India, issues a writ of certiorari, although the same is not maintainable, an appeal under Clause 15 of the Letters Patent would nevertheless be maintainable against such order.
To put it in other words, take a case where a party on his own invokes supervisory jurisdiction under Article 227 of the Constitution of India, and in such a petition, the Court issues a writ of certiorari, then against such an order an LPA would be maintainable.
To put it explicitly clear, take a case where in a petition neither there is a prayer for issue of a writ of certiorari nor the Tribunal/Authority or Court whose order is impugned is impleaded as a party respondent, and despite such being the position, if the Court proceeds to issue a writ of certiorari, then against such an order Page 4 of 5 C/LPA/813/2013 JUDGMENT an LPA would be maintainable."
6. 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 appellants in seeking appropriate remedy before the appropriate forum in accordance with law.
7. In view of dismissal of the Appeal, Civil Application No.6267 of 2013 also stands dismissed.
(V.M.SAHAI, J.) (K.J.THAKER, J) Ashish Tripathi Page 5 of 5