Karnataka High Court
Sri Vishnu Ganapathi Naik vs The Management Of Nwkrtc on 28 March, 2006
Equivalent citations: ILR2006KAR1863, 2006(3)KARLJ356
Author: H.L. Dattu
Bench: H.L. Dattu, A.S. Bopanna
ORDER PASSED BY THE LEARNED SINGLE JUDGE IN EXERCISE OF SUPERVISORY JURISDICTION-WHETHER APPEAL LIES AGAINST-HELD-The Order passed by the Learned Single Judge necessarily is under Article 227 of the Constitution of India and therefore, no appeal would lie against the said order-The right of appeal is a statutory right and where the statute has provided the right of appeal only against an order passed by the Learned Single Judge of the High Court in its original Jurisdiction, no Appeal lies against the order of the Learned Single Judge passed in the exercise of supervisory jurisdiction under Article 227 of the Constituion of India. Writ Appeal is rejected as not maintainable. JUDGMENT H.L. Dattu, J.
1. The workman being aggrieved by the award passed by the Industrial Tribunal, Hubli, in K.I.D. No. 403/2003 dated 13.7.2004 had filed a petition in W.P. No. 48999/2004 before this Court under Articles 226 and 227 of the Constitution of India. The Learned Single Judge by his order dated 27.7.2005, has rejected the writ petition and has confirmed the award passed by the Industrial Tribunal, Hubli. It is the correctness or otherwise of the said order is questioned by the workman in this appeal.
2. The matter is posted before the Court for preliminary hearing. After hearing the Learned Counsel for the appellant, we are of the view that the appeal is not maintainable in view of the law declared by a Full Bench of this Court in the case of Gurushanth Pattedar v. Mahaboob Shahi Kulburga Mills and Anr. . In the said decision, the Court at Paragraph 4 has observed as under:
4. Petitions are very often filed both under Articles 226 and 227 of the Constitution. When such is the case the Court will have to examine having regard to the nature of allegations made in the petition and the relief claimed therein as to whether the petitioner wants the High Court to exercise its supervisory power under Article 227 or its original jurisdiction under Article 226. There can be cases where a claim is made seeking to invoke the power of the High Court under both the Articles. For instance, an award of a Labour Court is sought to be challenged in a petition filed under Articles 226 and 227 of the Constitution. If the challenge is limited only to the correctness of the award, the petitioner is obviously invoking the power of this Court under Article 227 because the cause has not been initiated for the first time in this Court, it had arisen before the Labour Court who gave its decision thereon in the form of an award, the correctness of which is challenged. If in addition to the correctness of the award the petitioner were to challenge the vires of any provision of the Industrial Disputes Act or any other provision or the very jurisdiction of the Labour Court to pass the award, or on the ground that it suffered from an error of law apparent on the face of the record, he is invoking the powers of the High Court under Article 226 as well and if such issues are decided by a Learned Single Judge the decision will be deemed to have been rendered in the exercise of its original jurisdiction under Article 226. This aspect has also been examined by their Lordships in Umaji's case (supra) in paragraph 106 of the judgment. However, the case before us is not a case of such a type because the Learned Senior Counsel appearing for the appellant very fairly conceded that he is invoking the jurisdiction of this Court under Article 227 of the Constitution before the Learned Single Judge.
3. The Full Bench of the Andhra Pradesh High Court in the case of Commissioner of Income Tax v. B.R. Constructions 202 ITR 222, has observed that "a High Court is bound to follow the decision of the same High Court. Judicial decorum and certainty of law require a Single Judge to follow the decision of another Single Judge and of a Larger Bench and even if for reasons to be stated, a different view was necessiated, the matter should be only referred to the Chief Justice for referring the question to a Larger Bench."
The Madras High Court in the case of Super Spinning Mills Ltd. v. Commissioner of Income Tax 199 ITR 832 has observed that "the binding effect of a decision does not depend upon whether a particular argument was considered therein or not, provided the point with reference to which an argument was subsequently advanced was actually decided.
The Supreme Court in the case of Sundarjas Kanyalal Bhatija and Ors. v. Collector, Thane, Maharashtra and Ors. 183 ITR 130 has made some pertinent observation and the same cannot be placed better than quoting verbatim what was stated therein:
One must remember that pursuit of the law, however galmorous it is, has its own limitations on the Bench. In a multi-judge Court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. Judicial decorum and legal propriety demand that, where a Learned Single Judge or a Division Bench does not agree with the decision of a Bench of Co-ordinate Jurisdiction, the matter shall be referred to a Larger Bench. It is subversion of judicial process not to follow this procedure.
4. We are in respectful agreement with the observations made by a Full Bench of the Andhra Pradesh High Court and the Madras High Court. We are bound by the observations made by the Supreme Court.
5. The Full Bench of this Court at paragraph 4 of the judgment has observed that, the writ petitions are filed before this Court both under Articles 226 and 227 of the Constitution of India. When such is the case, the Court has to examine the allegations made in the petition and the relief claimed therein as to whether the petitioner wants the Court to exercise its supervisory power under Article 227 or its original jurisdiction under Article 226 of the Constitution and there can be cases where claim is made seeking to invoke the power of the High Court under both the Articles. The Court has not stopped there. It has given illustration of this type of cases by taking into consideration the awards passed by the Labour Courts and the Industrial Tribunals. In that, the Court has observed, that, if the challenge is limited only to the correctness or otherwise of the award, then the petitioner is obviously invoking the powers of this Court under Article 227 of the Constitution, because the cause has not been initiated for the first time in this Court. Proceeding further, the Court has observed, that, if in addition to the correctness of the award, the petitioner were to challenge the vires of any other provision of the Industrial Disputes Act or of any other provision or the very jurisdiction of the Labour Court to pass the award or on the ground that it suffered from error of law apparent on the face of the record, he is invoking the power of the High Court under Article 226 as well and if such issues are decided by a Learned Single Judge, the decision will be deemed to have been rendered in the exercise of its original jurisdiction under Article 226.
6. The Full Bench of this Court while concluding has stated that, "the right of appeal is a statutory right and where the statute has provided the right of appeal only against an order passed by the Learned Single judge of this Court in its original jurisdiction, it is to be held that no appeal lies against the order of the Learned Single Judge passed in the exercise of supervisory jurisdiction under Article 227 of the Constitution."
7. In the instant case, it is not the case of the appellant that he had questioned the award passed by the Industrial Tribunal/Labour Court under any one of the exceptions stated by the Full Bench of this Court in Gurushanth Pattedar's case-. Therefore, in our opinion, the order passed by the Learned Single Judge necessarily is under Article 227 of the Constitution and therefore, no appeal would lie against the said order before this Court.
8. In view of the above, without going into the merits of the appeal, the same is rejected as not maintainable. Ordered accordingly.