Madhya Pradesh High Court
Nagar Palika Nigam vs Safai Kamgar Sangh on 21 November, 2019
Author: S.C.Sharma
Bench: S.C.Sharma
1 WA-1765-2019
The High Court Of Madhya Pradesh
WA-1765-2019
(NAGAR PALIKA NIGAM Vs SAFAI KAMGAR SANGH)
Indore, Dated : 21-11-2019
Shri Girish Patwardhan, learned counsel for the
appellant.
The present writ appeal is arising out of order dated
07.03.2018 passed in W.P.No.2519/2017 (Commissioner
Municipal Corporation, Ujjain Vs. Adhyaksh Safai Kamgar
and another).
The facts of the case reveal that the workman Meera
Bai has approached the conciliation Officer in respect of an
Industrial Dispute and the conciliation proceedings resulted
in failure. A reference was made under Section 10 of the
Industrial Disputes Act, 1947 to the Labour Court for
adjudication. As per the terms of reference, the Labour
Court was required to answer whether Meera Bai w/o
Bherulal is entitled for permanent classification or not.
Undisputed facts also reveal that the husband of
Meera Bai was also Safai Kamgar and expired while in
service and in those circumstances Meera Bai was
appointed as a Safai Kamgar. She was not classified as
permanent employee inspite of the fact that large number of
workers were classified as permanent. There were posts
available with the employer. The labour Court after taking
into account the evidence on record and keeping in view the
M.P. Industrial Standing Rules, 1963 has answered the
reference by holding that the workman is entitled for
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permanent classification, meaning thereby she will be
entitled for the grant of minimum of the pay scale.
A writ petition was preferred before this Court and the
learned Single Judge dismissed the writ petition preferred
by the employer against which the present writ appeal has
been filed. Undisputedly, the writ petition was filed under
Article 227 of the Constitution of India which is evident
from the Annexure A/1 the cause title of the writ petition.
At page 3 of the order passed in the writ petition, the
learned Single Judge has categorically held that it is a writ
petition under Article 227 of the Constitution of India and
therefore, a Writ Appeal is certainly not at all maintainable.
The Division Bench of this court in the case of Smt.
Hansa Devi Vs. Chandar Singh (W.A.No. 691/2014,
decided on 05/02/2015), in paragraphs No. 2, 3 and 5 to 8
has held as under :
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 Board of Revenue dt.
25/10/2007 and the learned Single Judge has allowed
the Writ Petition and the order passed by the Board of
Revenue, has been quashed.
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
3 WA-1765-2019
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 thai 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
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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.... (Emphasis supplied)
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 5 WA-1765-2019 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.
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. On the other hand, learned senior counsel for the respondent, Mr. S. C. Bagadia, has placed reliance upon a judgment delivered by 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 6 WA-1765-2019 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 7 WA-1765-2019 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".
(emphasis supplied)
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 8 WA-1765-2019 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 9 WA-1765-2019 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, u/S. 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaya Peeth ko Appeal) Adhiniyam, 2005, is not at all maintainable.
The Writ Appeal is accordingly dismissed.
In the light of the aforesaid judgment of the Division Bench of this Court as the learned Single Judge has exercised jurisdiction exclusively under Article 227 of the Constitution of India, no such writ appeal is maintainable and is accordingly dismissed.
(S. C. SHARMA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
RJ
Digitally signed by Reena Joseph
Date: 2019.11.22 13:10:05 +05'30'
10 WA-1765-2019