Madhya Pradesh High Court
Superintendent Rajmata Vijaya Raje ... vs Smt. Hussaini Bee on 16 December, 2015
1
W.A. Nos.614/15, 615/15, 616/15, 617/15,
618/15, 620/15, 621/15, 622/15,
623/15, 624/15, 625/15, 626/15 & 627/15
16.12.2015
Shri Umesh Gajankush, learned counsel for the appellant.
Heard.
Since the common question of law is involved in these
writ appeals therefore, they are heard together on the question
of maintainability also and disposed of by this common order.
For the sake of convenience the facts are borrowed from W.A.
No.614/2015.
2. This intra-Court appeal under Section 2(1) of the M.P.
Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam,
2005 has been filed by the appellant against the order dated
30/09/2015, passed in W.P. No.8685/2014 whereby the learned
writ court upheld the order dated 19/07/2014(Annexure-P/6),
passed in Case No.45/2015 dismissed the appeal.
3. Appellant - Superintendent, Rajmata Vijaya Raje Scindia,
Regional Agricultural Research Station, Ujjain which is under
the "Rajmata Vijayaraje Scindia Krishni Vishvavidyalaya,
Gwalior" is aggrieved by the order passed on 30/09/2015.
4. Brief facts of the case are that earlier, in the State of
Madhya Pradesh, Jawaharlal Nehru Krishi Vishwavidyalaya,
2008 i.e. "Gwalior Agriculture University Oridance 2008",
Rajamata Vijaya Raje Scindia Krishi Vishwavidyalaya came
into existence.
5. The respondent in this appeal was an employee working
at the Rajmata Vijaya Raje Scindia, Regional Agricultural Research Station, Ujjain, which was earlier a part of and an establishment under the Jawaharlal Nehru 2 KrishiVishwavidyalaya, Jabalpur. The Ordinance of 2008 came into effect on 19th August, 2008. The respondent was an employee of the University i.e. Regional Agricultural Research Station and was retrenched without being paid any compensation. The application for reference was filed and the same was forwarded to the Labour Court, Ujjain under section 10 of the Industrial Dispute Act. An award was passed on 30/06/2012. Thereafter MCC was preferred by the respondent i.e. MCC No.257/2012. The Labour Court has passed an award dated 30th January, 2014 directing the appellant to pay the amount of retrenchment compensation. The original award has not been challenged by the Jawaharlal Nehru Krishi Vishwavidyalaya or by the Rajmata Vijaya Raje Scindia Krishi Vishwavidhyalaya till the date before any forum. The order passed in MCC No.257/2012 datd 30/06/2012, by which the present appellant has been held liable to pay the retrenchment compensation, is under challenge. The question arise before the learned writ court, whether the present appellant is required to pay the amount or not, being the successor University of the Jawaharlal Nehru Krishi Vishwavidyalaya, Jabalpur. Section 57 of the Ordinance of 2008 reads as under :
57. (1) As from such date as the State Government may, by notification specify in the this behalf all constituent colleges of the Jawaharlal Nehru Krishi Vishwavidyalaya situated in the areas specified in sub -
section (1) of Section 6 imparting instruction in Agriculture, Horticulture,
Veterinary Science and Animal Husbandry or any other allied subjects for bachelor's decree or higher and all research stations 3 within those areas which are operated for carrying out research in agriculture and allied sciences together with lands, hostels and other buildings, furniture, library, laboratories, stores, instruments, apparatus, appliances and equipments and livestock belonging to such colleges and stations and the budget programme made for them shall be transferred to and vest in the University (2) On and from the date of transfer of any college or research station under subsection (1), the following consequences shall ensue, namely:
a. the employees of the Jawaharlal Nehru Krishi Vishwavidyalaya i. Who were working in or were attached to the collegesfor research stations situated within the jurisdiction of the University on the said date; or ii. Who but for their temporary absence from such colleges or research stations on account of any cause would have been working in or remained attached thereto on the said date; or iii. Except the employees who have been recruited against the separate cadre posts created in college of Horticulture, Mandsaur, College of Agriculture, Tikamgarh and Ganjbasoda and College of veterinary Science and Animal Husbandry, Rewa who opt for transfer to the University and are permitted by the committee constituted by the State Government for the purpose within a period of six months or a period as extended by the State Government.
Shall become the employees of the University and shall be thereafter be governed by the terms and conditionsgoverning the services under the university;
Provided that the terms and conditions offered by the University to such employees consequent upon their absorption in the service of the University shall not be less favourable than those applicable to such employees prior to the said date;
(b) any right, privilege, obligation or 4 liability acquired accrued or incurred by the Jawaharlal Nehru Krishi Vishwavidyalaya in respect of the college or research station, as the case may be, shall be deemed to be theright privilege obligation or liability acquired, accrued or incurred by the University:
(c) any contract entered into by the Jawaharlal Nehru Krishi Vishwavidyalaya in respect of the college or research station, as the case may be, shall be deemed to be contract entered into by the University.
6. The learned writ court after due consideration of Section 57 of the Ordinance of 2008, came to the conclusion that the employee of Jawaharlal Nehru Krishi Vishwa Vidyalaya, Jabalpur working under the University or the Centres, whichare now a part of the Rajmata Vijaya Raje Scindia Krishi Vishwavidyalaya, will be the employee of the successor University for all purposes. Not only this, it also makes clear that any right, privilege, obligations or liability accrued or incurred by the Jawaharlal Nehru Krishi Vishwavidyalaya, Jabalpur in respect of college or research station, as the case may be, shall be the liability of the Rajamata Vijaya Raje Scindia Krishi Vishwavidyalaya.
7. On due consideration of the statutory provisions, the learned writ court was of the opinion that the Labour Court was justified in passing of the impugned order dated 30th January, 2014 and declined to interfere with the aforesaid order by dismissing the writ petition.
8. Learned counsel for the appellant has submitted that the notification was issued on 29/08/2015 and the present appellant was not party to the proceeding and, therefore, the said award is not binding on them nor they are liable to pay the retrenchment compensation. He submits that as far as the 5 liability which is mentioned in Section 57 of the Ordinance of 2008 is concerned, that liability is entirely different. If we read Section 57 of the Ordinance of 2008, the same relates to the transfer of properties and persons. Sub Section (2) of Section 57 of the Ordinance of 2008 says that on and from the date of transfer of any college or research station under sub-section (1), the following consequences shall ensure. Sub-clause (b) of sub-section (2) of Section 57 of the Ordinance of 2008 relates to the right, privilege obligation or liability which would be ensure from the date of transfer of the college nor prior to it. In such facts and circumstances, probably learned writ court has totally overlooked the basic concept of the provisions. Thus, the impugned order is liable to be set aside.
9. He further submits that again under the provisions of Section 57(2) of the Ordinance of 2008 the crucial date is the date of transfer i.e. 19.08.2008 when first time the gazette notification was issued and the present University came into existence. Admittedly, on that date the present university was and is liable about any right, privilege, obligation or liability etc. but the subsequent liability would not be fastened on the present appellant because the execution was filed in the year 2014 and the award was passed in the year 2012 against Jawaharlal Nehru Krishi Vishwavidyalaya. In such facts and circumstances, the impugned order is liable to be set aside.
10. That it is trite law that the executing court can not go beyond the decree. The provisions of Section 33C of the Industrial Disputes Act relate to execution of the award and therefore the application was filed for execution of the award which was passed in the year 2012 against Jawaharlal Nehru Krishi Vishwavidyalaya. Looking to the aforesaid facts and 6 circumstances, when admittedly the appellant is not the employer of the respondent and the respondent is and was not the workman of the appellant, in such facts and circumstances the award can not be executed against the appellant. Such fact has been overlooked by the learned writ court while passing the impugned order, hence, the same is liable to be set aside. He also placed reliance on the decision of the Apex Court in the case of Jogendrasinghji Vijaysinghji vs. State of Gujarat & Ors., [(2015) 9 SCC 1] and submitted that the writ petition was filed under Article 226 of the Constitution of India and admittedly relief was claimed in the writ petition under Article 227 of the Constitution of India and no relief as prayed claimed under Article 226 was given in the writ petition.
11. To support the aforesaid, he placed reliance on the decision of the Apex Court in the case of State of M.P. & Ors. vs. Visan Kumar Shivcharanlal [2009(III) MPJR (SC) 319]. Para 12 and 14 are relevant which reads as under:-
12. In Surya Dev Rai v. Ram Chander Rai & Ors. [AIR 2003 SC 3044] after referring to decisions in Custodian of Evacuee Property, Bangalore v. Khan Saheb Abdul Shukoor, etc. [1961 (3) SCR 855] and Nagendra Nath Bora & Anr. v. Commissioner of Hills Division [AIR 1958 SC 398], T.C. Basappa v. T. Nagappa [AIR 1954 SC 440] and Rupa Ashok Hurra v. Ashok Hurra [AIR 2002 SC 1771], this Court held at paragraphs 17, 19 & 25 as follows:
"17. From the aforesaid enunciation of law it is quite vivid and luminescent 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 hypertechnical manner that an order passed in a 7 writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Court 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 afore quoted 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 Devi 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 sub ordinate court. In quintessentiality, it cannot be put in a state jacket formula that any order of the learned judge that deals with an order arising from an inferior tribunal or the sub ordinate 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 over emphasis 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 coincide, co-exit, overlap 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 Constitutions is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon 8 factual matrix of the case.
19. Thus, there is no manner of doubt that the orders and proceedings of a judicial court subordinate to the High Court are amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.
25. Upon a review of decided cases and a survey of the occasions, wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, maybe, by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well."
14. In view of what has been stated above, the High Court was not justified in holding that the Letters Patent Appeal was not maintainable. In addition, a bare reading of this Court's earlier order shows that the impugned order is clearly erroneous. The impugned order is set aside. The writ appeal shall be heard by the Division Bench on merits.
912. The question regarding maintainability of the writ petition under Article 227 of the Constitution of India was considered by this Court on 5/02/2015, passed in W.A. No.691/2014(Smt. Hansa Devi & another vs. Chandar Singh & Others) and this Court after hearing the learned counsel for the parties at length has dealt with the issue of maintainability of writ appeal against an order passed in exercise of jurisdiction conferred under Article 227 of the Constitution of India and dismissed the writ appeal.
13. On 27/10/2015 also this court in W.A. No.417/2015 considering the aforesaid arguments dismissed the writ appeal by holding the following grounds :-
Keeping in view the judgments delivered by this Court in the case of Manoj Kumar Vs. Board of Revenue and others reported in 2007 (4) MPHT 545(FB), Jaidev Siddha Vs. Jaiprakash Siddha reported in 2007 (3) MPLJ 595 and the decision of Apex Court in the case of Ramesh Chandra Sankla Vs. Vikram Cement reported in AIR 2009 SC 713, this Court is of the considered opinion that the learned Single Judge was exercising power of superintendence under Article 227 of the Constitution of India and, therefore, remedy of intra-court appeal is not available 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 filed under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaya Peeth Ko Appeal) Adhiniyam, 2005, is not at all maintainable.
14. This court however, finds that the writ appeal is not maintainable although the writ petition was filed Under Article 226 of the Constitution of India. The case was covered under head note III and head note VI of the case of Jogendrasinghji Vijaysinghji (supra) whereby the Apex Court held that the 10 High Court was required to ascertain whether facts justify assertions made in writ petition to invoke jurisdiction under Article 227 or Article 226 or under both/whether Single Judge exercised jurisdiction under Article 227 or Article 226 or under both having regard to nature, contour and character of his order. And considering the above, we find that this Court was of the considered view that the Writ Court as well as the Supervisory Board have both exercised the powers under Article 227 in their supervisory jurisdiction and a writ of certiorari cannot be issued.
15. In the case of Radhey Shyam and another Vs. Chhabi Nath and others [(2009) 5 SCC 616] the Apex Court held that "judicial orders passed by Civil Court can be examined and then corrected/reversed by a writ of certiorari and the Court had held that under Article 227 of the Constitution of India, the high Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to very sparingly exercised to keep tribunals and courts within the bounds of their authority. Under Article 227, orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law." Then in the instant case we find that such is not the case and recently this Court under similar circumstances in the matter of Smt. Hansa Devi and another Vs. Chandar Singh and others in Writ Appeal No.691/2014 on 05.02.2015 held that when it is clear power of superintendence has been exercised under Article 227 of the Constitution of India, the writ appeal cannot be entertained. And in the present case also, we 11 find that the Writ Court has exercised his power of superintendence under Article 227 of the Constitution of India, when it has considered the findings of the facts arrived by the Collector and the Board of Revenue.
16. On due consideration of the aforesaid, we find that the appeal is not maintainable and intra court appeal remedy is not available to the petitioner. It is the liability of the appellant to pay the amount and, thus, we are of the view that the Labour Court was justified in passing the impugned order dated 30/01/2014. No case to interfere with the aforesaid order, as prayed by the learned counsel for the appellant is made out and, therefore, we dismiss the writ appeal on merit as well as on the question of maintainability.
17. The writ appeal filed by the appellant is accordingly dismissed.
18. A copy of the order be retained in other connected writ appeals bearing W.A. Nos. 615/15, 616/15, 617/15, 618/15, 620/15, 621/15, 622/15, 623/15, 624/15, 625/15, 626/15 & 627/15.
(P.K. Jaiswal) (Subhash Kakade)
Judge Judge
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