Gujarat High Court
Bayer Crop Science Pvt. Ltd. vs Jayesh J Patel on 3 February, 2020
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/2803/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2803 of 2020
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BAYER CROP SCIENCE PVT. LTD.
Versus
JAYESH J PATEL
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Appearance:
MR KEYUR GANDHI, MR NIRAV JOSHI, MR DIVYESH B., NANAVATI
ASSOCIATES(1375) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 03/02/2020
ORAL ORDER
1. This is a petition, seeking following reliefs:
"7. ...
(A) Your Lordships may be pleased to issue a writ of mandamus and / or certiorari or writ in the nature of mandamus and/or certiorari or any other writ, order or direction, be issued for quashing and setting aside the Award dated 05.09.2019 passed by labour Court, Himmatnagar in Reference (LCH) No. 45 of 2014;
(B) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the implementation, execution and operation of the Award dated 05.09.2019 passed by labour Court, Himmatnagar in Reference (LCH) No. 45 of 2014 (C) An ex-parte ad interim relief in terms of prayer (B) above may be granted; and (D) ..."
2. Learned Advocate, Mr. Gandhi, for the petitioner has urged before this Court that the Court below has overlooked that three other persons, who also had faced departmental proceedings, have been demoted and continued in service, on their tendering unconditional apology. In support of his say, he has placed reliance on the decision Page 1 of 7 Downloaded on : Tue Feb 04 22:46:09 IST 2020 C/SCA/2803/2020 ORDER of the Apex Court in 'OBETTEE (P) LTD. VS. MOHD. SHAFIQ KHAN', (2005) 8 SCC 46. According to him, while exercising the powers under Section 11-A of the Industrial Disputes Act, 1947 (in brief, 'ID Act'), the Court below has overlooked the said fact and has granted reinstatement in service to the respondent-workman. He, further, has urged that at the best, the Court below could have granted a lump sum compensation to the respondent, who had served for only about two years. He also, on instructions, has urged that the 3 employees, who are continued in service, after their demotion, are still working., and therefore, the case of the respondent-workman, herein, stands on a different footing.
3. At this stage, this Court shall need to regard the decision of the Apex Court rendered in 'SHALINI SHYAM SHETTY AND ANOTHER VS. RAJENDRA SHANKAR PATIL' (2010) 8 SCC 329, where, the Apex Court has considered at length the scope of interference by this Court to hold and observe that Article 227 can be invoked by the High Court suo motu as a custodian of justice. However, the Apex Court cautioned, an improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality ,and therefore, this power being discretionary, it has to be exercised very sparingly on equitable principle. The relevant observations of the Apex Courts runs as under:
"Articles 226 and 227 stand on substantially different footing. As noted above, prior to the Constitution, the Chartered High Courts as also the Judicial Committee of the Privy Council could issue prerogative writs in exercise of their original jurisdiction. [See 1986 (suppl.) SCC 401 at page 469)].
58. However, after the Constitution every High Court has been conferred with the power to issue writs under Article 226 and these are original proceeding. [State of Page 2 of 7 Downloaded on : Tue Feb 04 22:46:09 IST 2020 C/SCA/2803/2020 ORDER U.P. and others vs. Dr. Vijay Anand Maharaj - AIR 1963 SC 946, page 951].
59. The jurisdiction under Article 227 on the other hand is not original nor is it appellate. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields.
60. Another distinction between these two jurisdictions is that under Article 226, High Court normally annuls or quashes an order or proceeding but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. {See Surya Dev Rai (supra), para 25 page 690 and also the decision of the Constitution Bench of this Court in Hari Vishnu Kamath vs. Ahmad Ishaque and others - [AIR 1955 SC 233, para 20 page 243]}.
61. Jurisdiction under Article 226 normally is exercised where a party is affected but power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. In fact, the power under Article 226 is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. Jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. In certain cases where there is infringement of fundamental right, the relief under Article 226 of the Constitution can be claimed ex-debito justicia or as a matter of right. But in cases where the High Court exercises its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claim it as a matter of right. From an order of a Single Judge passed under Article 226, a Letters Patent Appeal or an intra Court Appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in exercise of power under Article 227. In almost all High Courts, rules have been framed for regulating the exercise of jurisdiction under Article 226. No such rule appears to have been framed for exercise of High Court's power under Article 227 possibly to keep Page 3 of 7 Downloaded on : Tue Feb 04 22:46:09 IST 2020 C/SCA/2803/2020 ORDER such exercise entirely in the domain of the discretion of High Court.
62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise Page 4 of 7 Downloaded on : Tue Feb 04 22:46:09 IST 2020 C/SCA/2803/2020 ORDER of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
Page 5 of 7 Downloaded on : Tue Feb 04 22:46:09 IST 2020 C/SCA/2803/2020 ORDER(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.
63. In the facts of the present case we find that the petition has been entertained as a writ petition in a dispute between landlord and tenant amongst private parties.
64. It is well settled that a writ petition is a remedy in Page 6 of 7 Downloaded on : Tue Feb 04 22:46:09 IST 2020 C/SCA/2803/2020 ORDER public law which may be filed by any person but the main respondent should be either Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform."
4. Thus, from a perusal of the impugned award passed by the Labour Court, this Court notices that, while exercising powers under Section 11-A of the ID Act, the Labour Court has found the action of the petitioner discriminatory, since, other three employees, on their tendering apology, have been continued in service. However, while so holding, the Labour Court was either not intimated of the demotion of those three employees or for some reason, that aspect has not reflected in the order. Since, the scope of exercise of powers by this Court is very limited, what is to be considered is, as to whether, the Labour Court has acted beyond its jurisdiction or has disregarded the material, which is very vital, while exercising such powers.
5. Thus, NOTICE, for the limited purpose of considering the proposal of the petitioner of lump sum compensation, in lieu of reinstatement, or to permit the respondent-workman to work along with other three employees on demoted post, returnable on 14TH FEBRUARY, 2020. Over and above the normal mode of service, direct service through SPEED POST or RPAD is also permitted.
(SONIA GOKANI, J) UMESH/-
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