Madhya Pradesh High Court
Lanxess India Pvt Ltd vs Rameshchandra Kerwar on 2 March, 2016
WA No.68/2016
02.03.2016
Shri Kamlesh Mandloi, learned counsel for the appellant.
The present Writ Appeal has been filed against the
judgment dated 28/10/2015, passed in Writ Petition No.
3740/2015.
2. Facts of the case reveal that a Writ Petition was filed
under Article 227 of the Constitution of India against the order
passed by the Labour Court dated 22.04.2015 and the learned
Single Judge has dismissed the Writ Petition and the order
passed by the Labour Court, has been affirmed.
3. The Writ appeal has been filed against the aforesaid order
u/S. 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand
Nyaya Peeth ko Appeal) Adhiniyam, 2005. The learned counsel
for the appellants has vehemently argued before this Court that
a Writ Appeal is maintainable against the order passed by the
learned Single Judge though it has been passed in exercise of
the jurisdiction conferred under Article 227 of the Constitution
of India. He has placed heavy reliance upon the judgment
delivered by this Court in the case of Manoj Kumar Vs.
Board of Revenue and others reported in 2007 (4) MPHT 545
(FB), wherein the Full Bench of this Court in paragraphs 33 to
37 has held as under:
33. If the analysis of law is properly
understood it is clear as noon day that the
High Courts exercise original jurisdiction
under Article 226 of the Constitution and
supervisory jurisdiction and the power of
superintendence under Article 227 of the
Constitution. But, an eloquent and fertile one,
a writ of certiorari is issued in exercise of
original jurisdiction. We may repeat at the
cost of repetition that in the case of Vijay
Anand (supra), the matter had travelled from
the lower forums and Their Lordships have
repelled the contention that the petition under
Article 226 of the Constitution of India is a
continuation of the proceeding initiated under
the statutory enactment. Their Lordships have
regarded it as extra-ordinary original
jurisdiction. It has been sometimes stated to
be a special equitable jurisdiction. In
Ramayya (supra), it has been held that the
power to issue writ is original and the
jurisdiction exercised is original jurisdiction.
The said view has been approved in
VijayAnand (supra). In Surya Dev Rai
(supra), distinction has been made between
the original jurisdiction and the supervisory
jurisdiction. The same principles have been
stated in Hari Vishnu Kamath (supra) and
Smt. Sudha Patil (supra).
34. At this juncture we may fruitfully state
that the word 'superintendence' has not been
used in Article 226 of the Constitution. It is
also evident that the term 'writs' is not
referred to in Article 227. On a scrutiny of
Article 227 it would be crystal clear that
power of superintendence conferred on the
High Courts is a power that is restricted to the
Courts and Tribunal in relation to which it
exercises jurisdiction. On the contrary the
power conferred on the High Court under
Article 226 is not constricted and confined to
the Courts and Tribunals but it extends to any
person or authority. Be it noted, Article 226 as
has been engrafted in the Constitution covers
entirely a new area, a broader one in a larger
spectrum.
35. In Hari Vishnu Kamath (supra), in
Paragraph 20 it has been held as under:
20. We are also of opinion that the Election
Tribunals are subject to the superintendence
of the High Courts under Article 227 of the
Constitution, and that superintendence is both
judicial and administrative. That was held by
this Court in Waryam Singh v. Amarnath,
where it was observed that in this respect
Article 227 went further than Section 224 of
the Government of India Act, 1935, under
which the superintendence was purely
administrative, and that it restored the
position under Section 107 of the Government
of India Act, 1915. It may also be noted that
while in a 'certiorari' under Article 226 the
High Court can only annul the decision of the
Tribunal, it can, under Article 227, do that,
and also issue further directions in the matter.
"We must accordingly hold that the
application of the appellant for a writ of
'certiorari' and for other reliefs was
maintainable under Articles 226 and 227 of
the Constitution.
36. Thereafter Their Lordships proceeded to
pass the following directions:
...Under the circumstances, the proper order
to pass is to quash the decision of the
Tribunal and remove it out of the way by
'certiorari' under Article 226, and to set
aside the election of the first respondent in
exercise of the powers conferred by Article
227....
37. From the aforesaid enunciation of law it
is quite vivid that two powers are distinct
and that is why Their Lordships resorted to
Article 226 for one part and invoked Article
227 of the Constitution for the other facet. It
is worth noting that Articles 226 and 227 of
the Constitution of India are supplement to
each other but that does not convey that the
power exercised under them are identical in
all cases. The Apex Court, time and again,
has expressed the view that the power
exercised under Article 226 is to be
characterized as supervisory power and not
power exercised in appellate or revisional
jurisdiction. The consistent view of the
Apex Court is that the power exercised
under Article 226 is in exercise of original
jurisdiction and not under 'supervisory
jurisdiction'. To elaborate: whenever word
'supervisory' has been used in the context of
Article 226 it is in contrast with the
appellate or revisional jurisdiction. When a
writ is issued under Article 226 of the
Constitution in respect of Courts or
Tribunals it is done in exercise of original
jurisdiction and the parameters are different
than Article 227 of the Constitution of
India. It is worth noting that the power
under Article 227 was there in a different
manner under the Government of India Act.
Power of superintendence is distinct from
the exercise of power of revisional or
supervisory jurisdiction which is a facet of
the power superintendence. The confusion
occurs when one applies the principle of
equivalence or equates the exercise of
supervisory power and power of
superintendence with original or
supervisory jurisdiction. There is an
acceptable nuance between the concept of
jurisdiction and exercise of power by
certain parameters. Both do come within the
fundamental concept of 'judicial review' but
the jurisdiction exercised is different. In
Achutananda Baidya v. Prafullya Kumar
Gayen , it has been held that power of
superintendence under Article 227 includes
within its concept the power of judicial
review. In our considered opinion when
under Article 226 a writ is issued it is issued
in exercise of original jurisdiction whether
against a Tribunal or Inferior Courts or
Administrative Authorities.
4. Learned counsel for the appellant has also placed reliance
upon the judgment delivered by the Full Bench of this Court in
the case of Jaidev Siddha Vs. Jaiprakash Siddha reported in
2007 (3) MPLJ 595 and in paragraph Nos. 8, 12, 17, 18, this
Court has held as under:
8.In Hari Vishnu Kamath v. Ahmad Ishaque
and Ors. , the Apex Court has held that the
High Court while issuing a writ of certiorari
under Article 226 of the Constitution of
India can only annul a decision of a Tribunal
whereas under Article 227 it can issue
further directions as well.
12. In Mangalbhai and Ors. v. Dr.
Radhyshyam , a two Judge Bench of the
Apex Court after reproducing certain
paragraphs from Umaji Keshao Meshram
(supra), proceeded to state as under:
6. The learned Single Judge in his impugned
judgment dated 11-12-1987 nowhere
mentioned that he was exercising the powers
under Article 227 of the Constitution. The
learned Single Judge examining the matter
on merit and set aside the orders of the Rent
Controller as well as the Resident Deputy
Collector on the ground that the aforesaid
judgment were perverse. The findings of the
Rent Controller and Resident Deputy
Collector were set aside on the question of
habitual defalter as well as on the ground of
bonafide need. Thus in the totality of the
facts and circumstances of the case, the
pleadings of the parties in the writ petition
and the judgment of the learned Single
Judge leaves no manner of doubt that it was
an order passed under Article 226 of the
Constitution and in that view of the matter
the Letters Patent Appeal was maintainable
before the High Court....
17. From the aforesaid enunciation of law it
is quite vivid and luminiscent that the
pleadings in the writ petition, nature of the
order passed by the learned Single Judge,
character and the contour of the order,
directions issued, nomenclature given, the
jurisdictional prospective in the
constitutional context are to be perceived. It
cannot be said in a hyper technical manner
that an order passed in a writ petition, if
there is assail to the order emerging from the
Inferior Tribunal or Subordinate Courts has
to be treated all the time for all purposes to
be under Article 227 of the Constitution of
India. Phraseology used in exercise of
original jurisdiction under Article 226 of the
Constitution in Section 2 of the Act cannot
be given a restricted and constricted
meaning because an order passed in a writ
petition can tantamount to an order under
Article 226 or 227 of the Constitution of
India and it would depend upon the real
nature of the order passed by the learned
Single Judge. To elaborate; whether the
learned Single Judge has exercised his
jurisdiction under Article 226 or under
Article 227 or both would depend upon
various aspects and many a facet as has been
emphasized in the aforequoted decisions of
the Apex Court. The pleadings, as has been
indicated hereinabove, also assume immense
significance. As has been held in the case of
Surya Dev Rai (supra), a writ of certiorari
can be issued under Article 226 of the
Constitution against an order of a Tribunal
or an order passed by the Subordinate Court.
In quintessentially, it cannot be put in a
straitjacket formula that any order of the
learned Single Judge that deals with an order
arising from an Inferior Tribunal or the
Subordinate Court is an order under Article
227 of the Constitution of India and not an
order under Article 226 of the Constitution.
It would not be an overemphasis to state that
an order in a writ petition can fit into the
subtle contour of Articles 226 and 227 of the
Constitution in a composite manner and they
can co-inside, co- exit, overlap or imbricate.
In this context it is apt to note that there may
be cases where the learned Single Judge may
feel disposed or inclined to issue a writ to do
full and complete justice because it is to be
borne in mind that Article 226 of the
Constitution is fundamentally a repository
and reservoir of justice based on equity and
good conscience. It will depend upon factual
matrix of the case.
18. In view of our aforesaid analysis we are
disposed to hold that the law laid down in
the cases of Lakhan Lal Sonkar (supra),
M.S. Wakankar (supra) and Smt. Shiva
Dubey (Jheera) (supra), lay down the law
correctly being in consonance and accord of
the decisions of the Apex Court and the
decision rendered in M/s. Ram and Co.
(supra), does not lay down the law soundly
and accordingly the
same is hereby overruled.
5. This Court has very carefully gone through the aforesaid
judgments and it is certainly true that in case the nature of the
order is such that the High Court exercised its original
jurisdiction under Article 226 of the Constitution of India, the
Writ Appeal is maintainable, but in case from the perusal of the
order it is clear that the power of superintendence has been
exercised under Article 227 of the Constitution of India, the
Writ Appeal cannot be entertained.
6. The apex Court in the case of Ramesh Chandra Sankla
Vs. Vikram Cement reported in (AIR 2009 SC 713) and the
apex Court in paragraphs 25 to 34, has held as under:
25. It is, therefore, clear that if the order is
passed by a Single Judge of the High Court in
exercise of original jurisdiction under Article
226 of the Constitution, an intra court appeal
would lie. If, on the other hand, a Single
Judge exercises power of superintendence
under Article 227 of the Constitution, intra
court appeal would not be competent.
26. Precisely, this was the position under
different Letters Patents. For instance, Clause
15 of the Letters Patent as applicable to High
Courts of Calcutta, Madras and Bombay
(Chartered High Courts), conferred such right
of Letters Patent Appeal. It read as under:
15. Appeal to the High Court from Judges of
the Court. And We do further ordain that an
appeal shall lie to the said High Court of
Judicature at Bombay from the judgment (not
being a judgment passed in the exercise of
appellate jurisdiction in respect of a decree or
order made in the exercise of appellate
jurisdiction by a Court subject to the
superintendence of the said High Court, and
not being an order made in the exercise of
revisional jurisdiction and not being a
sentence or order passed or made in the
exercise of the power of superintendence
under the provisions of Section 107 of the
Government of India Act or in the exercise of
criminal jurisdiction) of one Judge of the said
High Court or one Judge of any Division
Court, pursuant to Section 108 of the
Government of India Act, and that
notwithstanding anything hereinbefore
provided an appeal shall lie to the said High
Court from a judgment of one Judge of the
said High Court or one Judge of any Division
Court, pursuant to Section 108 of the
Government of India Act made on or after the
first day of February One thousand nine
hundred and twenty-nine in the exercise of
appellate jurisdiction in respect of a decree or
order made in the exercise of appellate
jurisdiction by a Court subject to the
superintendence of the said High Court,
where the Judge who passed the judgment
declares that the case is a fit one for appeal;
but that the right of appeal from other
judgments of Judges of the said High Court
or of such Division Court shall be to Us, Our
Heirs or Successors in Our or Their Privy
Council, as hereinafter provided.
27. The said clause (Clause 15) came up for
consideration before this Court in several
cases. We may, however, refer to only one
leading judgment on the point in Umaji
Keshao Meshram & Ors. V. Radhikabai,
Widow of Anandrao Banapurkar & Anr.,
1986 Supp SCC 401. In that case,
proceedings had been initiated under the
Bombay Tenancy and Agricultural Lands
(Vidarbha Region) Act, 1958. A person
aggrieved by an order passed by Appellate
Authority under the Act preferred revision
before the Revenue Tribunal which was
allowed. The order of the Tribunal was
challenged in a writ petition under Article 227
of the Constitution before the High Court of
Bombay (Nagpur Bench). A Single Judge
allowed the petition. The order passed by the
Single Judge was then challenged by the
aggrieved party by filing Letter Patent
Appeal before the Division Bench under
Clause 15 of the Letters Patent. The Division
Bench of the High Court dismissed the appeal
as not maintainable. The said decision was
challenged by the appellant in this Court.
28. This Court observed that the High Court
of Judicature at Bombay was established by
Letters Patent dated June 26, 1862 issued by
the British Crown pursuant to the authority
conferred on it by the Indian High Courts Act,
1861 (24 and 25 Vict., c. 104). The Letters
Patent also conferred right to institute an
appeal to the Division Bench of the High
Court against the `judgment' rendered by a
Single Judge of the same court in certain
cases.
29. Considering the history, tradition and
development of Letters Patent amended from
time to time, the Government of India Acts,
1915 and 1935 and the provisions of the
Constitution, this Court ruled that in case a
Single Judge of the High Court has given a
judgment or passed an order in exercise of
jurisdiction under Article 226 of the
Constitution, remedy of Letters Patent Appeal
is available to the aggrieved party. Madon, J.
who delivered the judgment for the Court, proceeded to observe that when the facts justify the party to invoke Article 226 or 227 of the Constitution and he chooses to institute a petition under both the Articles, he should not be deprived of right of appeal available under Clause 15 of the Letters Patent.
30. His Lordship stated:
"Petitions are at times filed both under Articles 226 and 227 of the Constitution. The case of Hari Vishnu Kamath v. Syed Ahmad Ishaque and Ors. (1955) 1 SCR 1104 : AIR 1955 SC 233, before this Court was of such a type. Rule 18 provides that where such petitions are filed against orders of the tribunals or authorities specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against decrees or orders of courts specified in that Rule, they shall be heard and finally disposed of by a Single Judge. The question is whether an appeal would lie from the decision of the Single Judge in such a case. In our opinion, where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution, and the party chooses to file his application under both these Articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal the Court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final order the Court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226".
31. (We may observe at this stage that Chinnappa Reddy, J. expressed his inability to opine on the issue being `unfamiliar' with the history, tradition and the law of the city of Bombay).
32. In our judgment, the learned counsel for the appellant is right in submitting that nomenclature of the proceeding or reference to a particular Article of the Constitution is not final or conclusive. He is also right in submitting that an observation by a Single Judge as to how he had dealt with the matter is also not decisive. If it were so, a petition strictly falling under Article 226 simpliciter can be disposed of by a Single Judge observing that he is exercising power of superintendence under Article 227 of the Constitution. Can such statement by a Single Judge take away from the party aggrieved a right of appeal against the judgment if otherwise the petition is under Article 226 of the Constitution and subject to an intra court/Letters Patent Appeal? The reply unquestionably is in the negative [see Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors., (1998) 5 SCC 749].
33. In our considered opinion, however, on the facts and in the circumstances of the present case, the petitions instituted by the Company and decided by a Single Judge of the High Court could not be said to be original proceeding under Article 226 of the Constitution. We are clearly of the view that the learned Single Judge had decided the petitions in exercise of power of superintendence under Article 227 of the Constitution.
34.We have already referred to the facts of the case. According to the Company, voluntary retirement was accepted by the employees. They thereafter challenged the action on the ground that the acceptance was not voluntary but they were compelled to opt for the scheme and were paid some amount which was not in consonance with law and the action of not allowing them to continue in the employment amounted to removal from service. They, therefore, approached Labour Court for an appropriate relief. The Labour Court entertained complaints and issued notice. The Company appeared and raised preliminary objections. Issues were framed and a prayer was made by the Company to decide `issues of law' as preliminary issues which prayer was rejected by the Labour Court. The Company approached Industrial Court which also did not interfere with the order of the Labour Court. That order was again challenged by the Company by filing petitions in the High Court and the learned Single Judge dismissed the petitions. In view of the aforesaid facts, we have no doubt that the learned Single Judge was exercising power of superintendence over a Court/Tribunal subordinate to it under Article 227 of the Constitution. Obviously, a remedy of intra court appeal was not available. We, therefore, hold that the Division Bench was right in coming to the conclusion that intra court appeals filed by the Company were not maintainable. We see no infirmity in that part of the order. The contention of the appellant Company is, therefore, rejected.
7. In the aforesaid case, the apex Court has dealt with the issue of maintainability of a Writ Appeal against an order passed in exercise of jurisdiction conferred under Article 227 of the Constitution of India. Keeping in view the judgments delivered by this Court in the case of Manoj Kumar Vs. Board of Revenue and others; Jaidev Siddha Vs. Jaiprakash Siddha and the judgment delivered by the Apex Court in the case of Ramesh Chandra Sankla Vs. Vikram Cement, this Court is of the considered opinion that the learned Single Judge was exercising power of superintendence over the Board of Revenue, (Court / Tribunal) under Article 227 of the Constitution of India and, therefore, remedy of intra-court Appeal is not available.
8. In the light of the aforesaid, as it was purely a Writ Petition under Article 227 of the Constitution of India, the present Writ Appeal, under section 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaya Peeth ko Appeal) Adhiniyam, 2005, is not at all maintainable.
9. The Writ Appeal is accordingly dismissed.
(P.K. Jaiswal) (Alok Verma)
Judge Judge
Kratika/-