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Gujarat High Court

Gujarat State Road Transport ... vs Ramabhai Dhulabhai Vankar on 25 March, 2014

Author: K.J.Thaker

Bench: Vijay Manohar Sahai, K.J.Thaker

         C/CA/2218/2014                                 ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


    CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 2218 of 2014
                                       In
                   CIVIL APPLICATION NO. 5620 of 2013
                                      In
    LETTERS PATENT APPEAL (STAMP NUMBER) NO. 772 of 2013
                                       In
            SPECIAL CIVIL APPLICATION NO. 6354 of 2011
                                    With
    LETTERS PATENT APPEAL (STAMP NUMBER) NO. 772 of 2013
                                      In
            SPECIAL CIVIL APPLICATION NO. 6354 of 2011
                                    With
       CIVIL APPLICATION (STAMP NUMBER) NO. 5279 of 2013
                                      In
    LETTERS PATENT APPEAL (STAMP NUMBER) NO. 772 of 2013
================================================================
   GUJARAT STATE ROAD TRANSPORT CORPORATION....Applicant(s)
                          Versus
         RAMABHAI DHULABHAI VANKAR....Respondent(s)
================================================================
Appearance:
MR HS MUNSHAW, ADVOCATE for the Applicant(s) No. 1

       CORAM:             HONOURABLE MR.JUSTICE VIJAY MANOHAR
                                        SAHAI
                                          and
                            HONOURABLE MR.JUSTICE K.J.THAKER

                               Date : 25/03/2014


                                ORAL ORDER

(PER : HONOURABLE MR.JUSTICE K.J.THAKER) ORDER IN CIVIL APPLICATION NO. 2218 of 2014 Page 1 of 6 C/CA/2218/2014 ORDER

1. In view of the averments made in this application, same is ALLOWED and the applicant is permitted to join the heirs of the deceased employee as party-respondents in the LPA as well as the pending civil applications. Rule is made absolute, accordingly.

(V.M.SAHAI, J.) (K.J.THAKER, J) ORDER IN CIVIL APPLICATION (STAMP) NOS. 5620 of 2013 AND 5279 of 2013 AND LETTERS PATENT APPEAL (STAMP) NO. 772 of 2013

2. By way of the Appeal, the appellant seeks to challenge the judgment and order of the learned Single Judge, Dated : 09.01.2013, rendered in Special Civil Application No.6354 of 2011, whereby, the writ-petition of the appellant came to be dismissed.

3. Heard, Mr. Munshaw, learned Advocate for the appellant and perused the material on record as well as the order impugned with his assistance. By way of the writ-petition, the appellant challenged the order of the Industrial Tribunal, Vadodara, (for short, 'the Tribunal'), Dated : 11.10.2010, passed in Reference (IT) No.167 of 2003. Admittedly, the Tribunal was not made a party before the learned Single Judge.

Moreover, the learned Single Judge dismissed the writ-petition in exercise of powers under Article 226 and 227 of the Constitution of India and no writ of certiorari was issued. The Full Bench of this Court in a recent decision in Letters Patent Appeal No. 596 of 2008 and cognate matters has held that an LPA challenging the order of the Gujarat Revenue Tribunal 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, held 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 Tribunal 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 Page 3 of 6 C/CA/2218/2014 ORDER 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 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."

4. 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 applications as well as the LPA 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 5 of 6 C/CA/2218/2014 ORDER (K.J.THAKER, J) UMESH Page 6 of 6