Gujarat High Court
R.M.P. Bearings Ltd. vs Chandubhai Shamjibhai Mithapara on 11 June, 2018
Author: A.J.Shastri
Bench: A.J. Shastri
C/SCA/5546/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5546 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 4111 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 4112 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 4115 of 2018
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R.M.P. BEARINGS LTD.
Versus
CHANDUBHAI SHAMJIBHAI MITHAPARA
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Appearance:
MR DIPAK R DAVE(1232) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 2
MR AMRESH N PATEL(2277) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 11/06/2018
ORAL ORDER
[1] The present group of petitions are filed under Articles 226 and 227 of the Constitution of India essentially challenging the decision dated 09.02.2018 passed by the learned Presiding Officer of the Labour Court in Approval Application Nos.87 to 91 of 2017.
[2] Since these petitions are arising out of a common impugned order and raises common question of law and fact, the learned advocates appearing for the respective parties have requested the Court to deal with and decide the same together. As a result of this, the present group of petitions are taken up for hearing together and the same are dealt with by present common judgment and order by treating Special Civil Application No.5546 of 2018, as a lead matter for the sake of convenience.
Page 1 of 37 C/SCA/5546/2018 ORDER[3] It is the case of the petitioner in Special Civil Application No.5546 of 2018 that the petitioner is a manufacturing unit running in the name of R.M.P. Bearings Limited, a limited company was working since several decades and in past there was no complaints of any nature including violation of any of the labour laws. Whenever there is a controversy arising, the management of the petitioner-company had shown an inclination to resolve without any heart burning, and on the contrary, have given better wages and benefits to its employees. Over the period of time, as per the case of the petitioner that one union namely Gujarat Mazdoor Sabha with an aid and assistance of some strong persons instigated certain employees against the company. On the contrary, Gujarat Mazdoor Sabha was indulging in unfair labour practice instigating and misleading the employees and creating all sorts of problems with the management so as to see that the company may not function with proper management. With a view to get private benefit and its presence in the company such activities were going-on and the company with a major union having membership of 187 employees out of 293 employees, entered into Section 2(p) settlement read with Rules 18 and 82 of the Rules on 20.08.2013 and this has taken place between the petitioner company and R.M.P. Mazdoor Sangh which Sangh was a major union.
[4] It is further the case of the petitioner that one Vijaysinh Hasubhai indulged in serious misconduct and as such he was served with a preliminary suspension order - cum- charge- sheet on 13.11.2013. Subsequently, having found the other four employees namely, (i) Basirbhai Husenbhai, (ii) Jagdishbhai Page 2 of 37 C/SCA/5546/2018 ORDER Becharbhai, (iii) Kukabhai Rupabhai, and (iv) Chandubhai Shamjibhai also came to be suspended in view of grave and serious misconduct. It is further the case of the petitioner that Basirbhai and Jagdishbhai were suspended on 14.11.2013 whereas Kukabhai and Chandubhai came to be suspended vide order dated 26.11.2013. The reasons are very much stipulated in the order of suspension itself. On account of such gross misconduct on the part of these employees, in the month of February, along with the charge-sheet these employees have been served with the order of suspension. Out of these employees, the employee named as Vijaysinh is a headstrong person and against him even a criminal case which was lodged, in which, after investigation charge-sheet has also been filed and the said criminal offence which was registered as C.R.No.I-29 of 2013.
[5] It is further the case of the petitioner that at the behest of Gujarat Mazdoor Sabha instigated the employees and taking help of the aforesaid employee named as Vijaysinh, the other four employees have also went on flash illegal strike and the strike started with effect from 30.11.2013 which has suffered a huge financial loss on account of interception of manufacturing process resulting into a loss of crores of rupees. So much so that, the same was put up in writing as well by the petitioner before the Deputy Labour Commissioner on 09.12.2013 along with the chart dated 01.10.2014. The workers at the behest of such union and head of employees, as stated above, have damaged machineries of the company, set on fire machineries valuable in nature and this unrest and the illegal action is also part of the letter referred to the Commissioner of Labour on 30.11.2013 and with regard to such headstrong workers even Police Officer, In-
Page 3 of 37 C/SCA/5546/2018 ORDERcharge of Ranpur Police Station was also informed vide two communications dated 25.12.2013 and 30.12.2013 alongwith the communications and copies of Commissioner of Labour respectively. Upon perusal of such attempt made by the workers, the Commissioner of Labour upon request of the petitioner intervene and vide reference dated 13.02.2014 strike came to be prohibited. It is the case of the petitioner that despite the prohibition of strike by the authority, the Gujarat Mazdoor Sabha continued its adamant approach went on instigating persons / employees not to resume the duty. However, certain employees have resumed the duty and started working, whereas with the help of headstrong employees, the Gujarat Mazdoor Sabha a union prevented other employees, and thereafter, a reference is sought to be made for seeking cancellation of suspension orders of five employees and demanding salary of these employees shown in Annexure to this petition from 30.11.2013. Until, the strike is prohibited and as such, the reference order was passed with regard to that. The Government Labour Officer in this context has issued a notice to the Gujarat Mazdoor Sabha informing that strike is prohibited and all the employees should resume the duty. Even the petitioner has also placed notice on the notice board intimating the employees immediately to resume the duty and the said notice was pasted on notice board of the company on 25.02.2014.
[6] It is further the case of the petitioner that again on 03.03.2014, the Deputy Commissioner of Labour intimated Gujarat Mazdoor Sabha in turn to inform all the employees to resume their duty with immediate effect and even petitioner has also time and again informed 116 employees who were still on strike. On 07.03.2014, the Deputy Commissioner of Labour made Page 4 of 37 C/SCA/5546/2018 ORDER a complete report to the Commissioner of Labour with regard to illegal strike going-on in the petitioner-company, and in furtherance of it, it was revealed that the said union is not ready and allowed all its employees to resume the duty unless and until all the contract employees are allowed to resume the duty first. The Gujarat Mazdoor Sabha with aid and assistance of handful headstrong employees have put all sorts of difficulties and hindrance in running of the petitioner-company and so much so that all other employees were restrained from coming inside the factory gate as well despite prohibition notification dated 30.11.2013.
[7] The petitioner has further stated in the petition that the Gujarat Mazdoor Sabha union has insisted to recall the suspension orders of these employees, who are petitioners in this petition and put the charter of demand for the purpose of wage revision and now the stand is changed by the said union to the effect that unless and until the contractors' employees are not allowed to resume duty, company's employees will not be allowed to resume duty and that is how the protest process went on, which ultimately has resulted into a reference. During the passage of time, the Gujarat Mazdoor Sabha filed a statement of claim in Reference (I.T.) No.57 of 2014 and has also submitted an application at Exh.7 inter alia raising claim, as stated in it.
[8] It is further the case of the petitioner that the advocate of the petitioner was out of country, hence, a request was made to grant time after 07.07.2014, the date on which the advocate for the petitioner was to return. Now, despite this request which has been made to adjourn the matter after 07.07.2014, the request is declined and the learned Presiding Page 5 of 37 C/SCA/5546/2018 ORDER Officer of the Tribunal was pleased to fix the hearing on 17.06.2014. Since on that day, the learned advocate was not available and adjournment was requested but the same was declined. It was specifically requested when the application was made that the advocate has gone out of country and will not be available. Somehow, the learned Presiding Officer refused to accommodate the petitioner and the said application came to be rejected and the Tribunal proceeded with the matter and passed an ex parte order at Exh.7. Learned advocate Mr.Shaikh has already made a request to the Tribunal that he may not be in a position to proceed further with the matter insisted for adjournment on account of such peculiar set of circumstances, but thereafter, even on 18.06.2014 and on 20.06.2014, a specific request having been made pointing out that he is not in a position to argue the case, but still however, the learned Tribunal has passed an order ex parte on 21.07.2014. On 21.07.2014, pursuant to the order, the notice was also placed on the notice board of the company that employees are requested to resume the duty and the notice thereafter, also came to be published on 24.07.2014 and the individual notice was also sent to the employees. Some of the employees, in the meanwhile, interpreted the order, as if the order is directing, all the employees including contractors' employees to be allowed to resume the duty. The Gujarat Mazdoor Sabha filed a contempt proceeding before this Court being Misc. Civil Application No.2677 of 2014. In the said contempt petition, on 25.09.2014 the notice was issued by this Court making it returnable on 15.10.2014 but since the petitioner is represented by lawyer, absent of a lawyer could not have been capitalized in this manner by the respective union. On the contrary, all these employees are prevented rather from resuming the work. There are Page 6 of 37 C/SCA/5546/2018 ORDER allegations also levelled in the petition about other employees prevented from resuming the duties. However, since Exh.7 application was disposed of in the absence of lawyer of the petitioner who was to argue the case. As a result of this, an application was submitted under Rule 26(A) of the Industrial Disputes Act, 1947 for the purpose of setting aside the ex parte order and along with that an affidavit in support was also field by the petitioner. Even the rojkam was also executed on 16.04.2014 and the situation was created in such a manner that there was no alternative left with the petitioner-company but to engage a new contractor and the old contractor was removed. Since, on account of this instigation of union, a chaosis created and the question was with regard to several employees including existing employees, the learned Tribunal ought not to have passed an order without hearing the advocate. Especially, when the request was made to recall the order even before filing restoration application, the petitioner had also submitted a written statement to the statement of claim filed by the Gujarat Mazdoor Sabha. The petitioner has also moved an application for clarification and for further interim order in the proceedings in a situation like this and for seeking clarification that reference order is confining to 131 employees and the ultimate order should also confine to the said employees and it was also alternatively prayed that in view of prohibition of strike, permanent employees of the company shall be directed to immediate to resume the duty without insisting the employees of the contractors who have been left and discontinue on account of the termination of contract itself.
[9] It is further the case of the petitioner that the Gujarat Mazdoor Sabha filed a reply to said delay condonation application opposing delay caused in preferring restoration application by the Page 7 of 37 C/SCA/5546/2018 ORDER petitioner. It was also a reply submitted to the clarification / application for interim order which was filed at Exh.22.
[10] By that time, the contempt proceedings which were field came up for consideration before this Court and this Court upon hearing was pleased to issue rule made it returnable on 22.12.2014. The Tribunal at the first instance heard the parties to the proceedings initially on condonation of delay application caused in preferring restoration application which came to be condoned vide order dated 05.12.2014 but then the Gujarat Mazdoor Sabha according to the petitioner continued to harass the petitioner and instead of proceeding further with the restoration application, gave another application that unless and until contempt petition pending before the High Court is heard the proceedings of restoration application and application at Exh.22 shall not be proceeded. Meanwhile, since the petitioner has also wanted to resolve the entire dispute, approach the Deputy Commissioner of Labour who in turn called a meeting of the petitioner the Gujarat Mazdoor Sabha on 14..11.2014 but on that day the Gujarat Mazdoor Sabha did not remain present. In this context, the High Court passed an order in Misc. Civil Application No.2677 of 2014 indicating that the learned Tribunal to hear all pending applications. Accordingly, the Tribunal heard the matters and on 21.02.2015 was pleased to dismiss the restoration application, and consequently, also dismissed injunction application at Exh.22. It was dismissed mainly on the ground that the same is not maintainable in the eye of law since the learned Tribunal has no jurisdiction to clarify its own order and without appreciating the entire situation which has been part of the record an order is passed on 21.02.2015.
Page 8 of 37 C/SCA/5546/2018 ORDER[11] Meanwhile, the said Gujarat Mazdoor Sabha union had already raised dispute with regard to contractors' employees since the said dispute was referred to the learned Tribunal being Reference (I.T.) No.22 of 2014. Several demands were raised for the employees and the same was pending for adjudication by way of Reference (I.T.) No.21 of 2014.
[12] Now, by that time being aggrieved by and dissatisfied with the impugned order dated 21.02.2015 as well as order of interim relief application dated 21.07.2014 below Exh.7, a substantive petition has been filed being Special Civil Application No.3694 of 2015, in which, the Court after hearing was pleased to issue notice and stay the interim order dated 21.07.2014 passed below Exh.7. Having realized that grant of such interim relief will have a consequence, the union made a statement that they are not pressing for interim relief and the learned Tribunal may be directed to hear and decide the main reference proceedings in a time schedule manner. Accordingly, the petition being Special Civil Application No.3694 of 2015 came to be allowed and the learned Tribunal was directed to hear and decide the main reference within a period of six months.
[13] It is further the case of the petitioner that in the background of such proceedings, the hearing was commenced by the learned Tribunal but then again with a view to delay the proceedings the Gujarat Mazdoor Sabha union gave an application to consolidate the reference proceeding being Reference (I.T.) No.57 of 2014 and Reference (I.T.) No.22 of 2014. Though the scope of both references were quite different, consolidation could not have been made, as a result of this, by passing an order, the learned Tribunal refused to consolidate the Page 9 of 37 C/SCA/5546/2018 ORDER references. The present reference proceedings i.e. original Reference (I.T.) No. 57 of 2014 was limited to employees working in the petitioner and were not covering the cases of employees working under contractors and in fact the contractors' employees were on strike despite prohibition notification, and as such, the learned Tribunal did not consolidate. Subsequently, the learned Tribunal has proceeded with reference proceeding as per the direction given by the High Court and when the evidence of both the sides came to be over, the Gujarat Mazdoor Sabha gave an application to the Assistant Commissioner Labour to add 287 employees in the reference proceedings and it is at a stage where the stage of evidence was over and the matter was put up on haste and was to commence for argument. This application to include 287 employees in the reference given on 16.09.2015 and pursuant to some political pressure an attempt is made to include these workers in the main proceedings. Again on 04.12.2015, the Office of Commissioner of Labour addressed to the Deputy Commissioner of Labour, Rajkot and strongly represented that at the fag end of reference this inclusion will cause a serious problem and prejudice to the petitioner. Then on 11.12.2015, the union again gave an application with the names of employees.
[14] It is further the case of the petitioner that on 22.12.2015, it was categorically pointed out that separate proceedings already are pending with respect to employees working under the contractors and the consolidation request was refused and the contractors were also not party the amendment in reference may not be allowed. It was further pointed out on 01.01.2016 that despite aforesaid erroneously, an order is made on 04.01.2016 permitting amendment in the main reference, and as such, since such was a gross material error in exercising Page 10 of 37 C/SCA/5546/2018 ORDER jurisdiction, the petitioner was constrained to challenge the same by way of petition being Special Civil Application No.2271 of 2016. Originally, the petition was admitted and interim stay was granted against an order dated 04.01.2016. Though, in due time, the Gujarat Mazdoor Sabha was served the said union has chosen not to enter appearance and on 21.03.2016, the Court was pleased to confirm the interim order.
[15] Simultaneously, the reference proceedings which were going-on before the Industrial Tribunal in pursuant to the direction, in which, the union has examined three witnesses and on behalf of the petitioner two witnesses have been examined, one at Exh.119 and another the Exh.140. After hearing the parties and considering the evidence on 25.03.2016, an award came to be passed which is again the subject matter of writ petition before this Court. The learned Tribunal held unfortunately that there was no conciliation proceedings pending on the day, on which, the strike was called and strike cannot be said to be IN violation of Section 23, and therefore, strike is held to be valid. It was also ordered that strike was peaceful, legal and as such justified. Resultantly, held that there was an unfair level practice on the part of the petitioner, and as such, the learned Tribunal directed the petitioner to pay full back wages from 30.11.2013 until the strike is prohibited by way of notification dated 13.02.2014. Again being aggrieved and dissatisfied with the said order passed by the Tribunal dated 25.03.2016, the petitioner company was constrained to challenge the same by way of Special Civil Application No.7686 of 2016, in which, the notice was issued and the award was staying. During the pendency of this petition, the inquiry and the disciplinary proceedings which were initiated against these employees of the Page 11 of 37 C/SCA/5546/2018 ORDER present petition got concluded on account of their serious charges. During the course of inquiry, the respondent No.1 was found guilty of charges levelled against him and the findings of Inquiry Officer also came to be prepared even a second show- cause notice was also given on 21.04.2017 and after considering this incomplete compliance of principles of natural justice, the petitioner has decided to terminate the service of the petitioner, and accordingly, on 01.07.2017, a termination order was passed. Now, when this termination order is passed i.e. on 01.07.2017, the Reference (I.T.) No. 21 of 2014 was pending with regard to the demands raised by the Gujarat Mazdoor Sabha, and as such, as per the requirement of law, the petitioner has to submit an application under Section 33 (2) (b) of the Industrial Dispute Act for seeking approval of its action i.e. of termination. It is submitted by the petitioner that when such application was filed, it was already on the date of termination order an amount of Rs.12,962/- came to be paid to respondent No.1 about one month notice and on that very day i.e. on 01.07.2017 an approval application came to be filed under Section 33 (2) (b) of the Act.
[16] In view of the sequence of events which develop during the course of hearing, the Special Civil Application No.7686 of 2016 was decided by this Court on 13.12.2017 by directing the learned Tribunal to hear and dispose of Approval Application filed by the petitioner and petition came to be disposed of. In response to this, when the hearing of Approval Application was taken up, the respondent No.1 filed an application raising preliminary objection and requested the Tribunal that preliminary objection may be decided first before proceeding which Approval Application in response to the High Court's order.
Page 12 of 37 C/SCA/5546/2018 ORDER[17] It is further the case of the petitioner that the said preliminary objection application was submitted by respondent No.1 to the effect that application under Section 33 (2) (b) is not maintainable and it should have been filed under Section 33 (1) of the Industrial Dispute Act. Such preliminary objection has been raised on 08.01.2018 and that has been submitted solely with an intention to delay the main proceedings which have been directed to be dealt with by the High Court. The petitioner filed reply to such application pointing out that all issues to be heard and decided simultaneously, and therefore, the request for raising preliminary issue and to be decided as first to be rejected. Such reply was filed on 10.01.2018, and on 18.01.2018, rejoinder was submitted by respondent No.1. The pleadings were completed but then despite the aforesaid situation before taking any decision on the preliminary application requested to be decided first and the learned presiding officer of the Labour Court decided the entire Approval Application itself and vide order dated 09.02.2018 by misconstruing the provisions and by overlooking the decision which have been cited, an order is passed on 09.02.2018 whereby all applications i.e. Approval Application Nos. 87 to 91 of 2017 came to be dismissed by way of passing common order by the learned Presiding Officer of the Tribunal, Ahmedabad. It is this common order is made the subject matter of present petition under Articles 226 and 227 of the Constitution of India.
[18] With these checkered history, litigation inter se between the parties, the matters are placed for hearing before the Court, in which, both the learned advocates have requested that in view of this peculiar set of circumstance, the matters may be heard at length. Accordingly, the request was considered and extensive hearing is given.
Page 13 of 37 C/SCA/5546/2018 ORDER[19] Learned advocate Mr. Dipak Dave appearing for the petitioner has vehemently contended that the order passed by the learned Presiding Officer, is absolutely unjust, arbitrary and improper and without appreciating any consequences thereof, hence, requires to be quashed and set aside. It has been further contended that the learned Presiding Officer, has passed the order against the expressed provisions of law and in complete violation of the principles of natural justice, and hence, on this count alone, the same be corrected. Learned advocate Mr. Dave has further contended that when the application was given by respondent no. 1 to hear preliminary objections first and when the petitioner objected to the same, instead of considering the request of the petitioner, the Labour Court pronounced the final order which is absolutely unjust, and reflecting irregularity in exercising the jurisdiction. It has further been contended that pursuant to the direction given by this Court, the Labour Court was to decide the approval application submitted by respondent no. 1. However, respondent no. 1 gave an application for deciding the preliminary objection first and without hearing the said application, straightway the order is passed which is not in the right spirit. Keeping in view the chronology of events, the learned Presiding Officer, ought to have further appreciated. As per the say of learned advocate Mr. Dave, that the Gujarat Mazdoor Sabha is an outside Union and not recognized by the petitioner, and undisputedly, does not affect the members who are working in other industries and the present Union according to learned advocate Mr. Dave was not working with the petitioner exclusively whereas it is one RMP Mazdoor Sangh, was the exclusive Union for the employees working with the petitioner, so much so that 2P Settlement has also been entered into by the petitioner and the RMP Mazdoor Sangh. The said RMP Mazdoor Page 14 of 37 C/SCA/5546/2018 ORDER Sangh had written letters for the purpose of recognizing protected workmen under Section 33 of the Industrial Disputes Act read with Rule 66 of the Industrial Disputes (Gujarat) Rules. Even the protected workmen were declared by the petitioner and duly communicated to the Government Labour Officer as well and the said documentary evidence has been challenged by the respondent before the learned Presiding Officer, and as such, the letters written by the Gujarat Mazdoor Sabha which is the third party Union which is again not recognized Union is demanding protected workmen, the said request would become insignificant as the said Union will not have any right to get the benefit of protected workmen under Rule 66 of the Rules. This material aspect has not been appreciated by the learned Presiding Officer.
[19.1] Learned advocate Mr. Dave has further contended that even assuming without admitting that there is some case in favour of respondent no. 1 that is to be accepted and the said Gujarat Mazdoor Sabha is presumed to be a Union of employees working with the petitioner, in that case, when there are more than one Union in the Company, ipso facto benefits of protected workmen cannot be conferred merely because the letter written by the Union is not responded and here is a case in which two Unions are available for seeking the benefit of protected workmen, recognizing procedure has not been followed and before the learned Assistant Commissioner, Labour Court, the Gujarat Mazdoor Sabha did not raise any dispute challenging not granting of status of protected workmen to respondent no. 1. Hence, these material aspects have not been taken into consideration in the right spirit by the learned Presiding Officer, and as such, the jurisdiction which has been exercised is not proper.
Page 15 of 37 C/SCA/5546/2018 ORDER[19.2] Learned advocate Mr. Dave has further contended that there is no concept of automatic grant of status of protected workmen, and hence, undisputedly when respondent no. 1 had not recognized the procedure, having not been followed, there is no question of grant of any such benefit as has been claimed. On the contrary, looking to the scope of Section 33(2)(b) of the Act and Section 33(1) of the Act is altogether distinguished and that thin line of distinguishable feature of this statutory provision has not been properly construed by the learned Presiding Officer and in any case in such a situation, when a moot question of law had arisen, the order of this nature would not have been passed. Learned advocate Mr. Dave has further pointed out that the learned Presiding Officer, ought to have considered the concept of the preliminary objection as has been spelt out by the Apex Court in the case of D.P. Maheshwari v. Delhi Administration reported in 1983 (4) SCC 293 and as such considering this set of circumstance, it is not possible to digest that this order cannot be said to be just and proper. Thus, while passing the order, the learned Presiding Officer has kept the petitioner under such belief that preliminary objection application will be decided first but then, the order is passed in such a way possibly it must be under the pressure of dealing an application at the earliest, and therefore, such is the exercise of jurisdiction which requires this Court to exercise extra ordinary jurisdiction. Learned advocate Mr. Dave has then contended that the law is clear on the subject and need not be supported by any other decisions and since ex-facie the order in question is not proper, this is a fit case in which interference be made. In any case, according to learned advocate Mr. Dave when such kind of jurisdiction is exercised as an alternative submission, learned advocate has requested the Court to remand the matter for fresh consideration with a specific direction to deal with both the applications independently afresh. No other submissions have been made.
Page 16 of 37 C/SCA/5546/2018 ORDER[20] To meet with the stand taken by learned advocate Mr. Dave, Mr. Amrish N. Patel, learned advocate appearing for the private contested respondent no. 1 has vehemently contended that this is basically a writ under Article 227 of the Constitution of India, and therefore, looking to the self imposed limitation of exercise of such jurisdiction, this is not a fit case in which any error is reflecting which calls for any interference. Learned advocate Mr. Patel has further contended that may be the learned Judge has decided both the applications i.e. at Exhibit-16 as well as Approval Application together, the same cannot be branded as irregular exercise of jurisdiction in any manner. Looking to this very peculiarity of the case, learned advocate Mr. Patel has further contended that the learned Presiding Officer minutely examined the contents of the Approval Application as well as the preliminary application at Exhibit-16 and the Court found that such applications to be decided along with Approval Application, there seem to be nothing wrong in it, on the contrary, the learned Judge has kept in mind the previous order passed by this Court and since it has been observed and decided, the exercise of jurisdiction cannot be said to be perverse in any manner, and as such, no extra ordinary jurisdiction to be exercised.
[20.1] Learned advocate Mr. Patel has further submitted that an attempt on the part of the petitioner is just to thwart hearing of main application and under the guise of this raising such kind of issues, dilatory tactics have been adopted. On the contrary, Section 33 of the Act is envisaging sufficient powers in the learned Presiding Officer to consider the main issues, and as such, the order which has been passed cannot be said to be unjust or arbitrary. While passing the order, the respective pleadings have also been examined and after giving appropriate Page 17 of 37 C/SCA/5546/2018 ORDER opportunity, the jurisdiction which has been invested is exercised which cannot be said to be perverse in any manner. Learned advocate Mr. Patel has contended that this being petition under Article 226 of the Constitution of India the only decision making process is to be examined whether it is proper or in compliance of the principles of natural justice or even if another view is possible, the same cannot be substituted in absence of any material irregularity or perversity and here is a case in which no such eventualities are happening, and therefore, the petition may not be entertained. Learned advocate Mr. Patel has further submitted that normally, the principle is to decide all issues altogether and as such there is no irregularity of any nature which can form exercise of extra ordinary jurisdiction.
[20.2] While substantiating this, learned advocate Mr. Patel has relied upon few of the decisions delivered by this Court. Firstly the decision delivered in Special Civil Application No. 7710 of 2009 which came to be decided on 29.07.2009 by the learned Single Judge of this Court and relied upon para 3. It has been contended that there appears to be no error committed by the learned Presiding Officer. Learned advocate Mr. Patel has submitted that in view of this decision also, it is not possible to construe that any error has crept in.
[20.3] It has further been contended by learned advocate Mr. Patel that relying upon yet another decision delivered by this Court in Special Civil Application No. 17726 of 2006 dated 08.09.2008 and has submitted that the true construction of Section 33 of the Act as well is considered by the learned Single Judge of this Court and the relevant observations contained therein reflects that this order impugned in the petition does not deserve to be disturbed. Yet another decision which has been Page 18 of 37 C/SCA/5546/2018 ORDER brought to the notice of this Court by learned advocate Mr. Patel is in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma & Ors., reported in (2002) 2 SCC 244 and has contended that upon analysis of statutory provisions contained under Section 33 (2) (b) of the Act, the Apex Court has observed and expressed the duty of the authority while disposing of the application a reference is made in para 13 and 14 of the said decision.
[20.4] Similarly, two other decisions have also been brought to the notice of this Court in the case of Nirmala J. Jhala v. State of Gujarat & Anr., reported in (2013) 4 SCC 301 and in the case of Union of India & Ors. v. P. Gumasekaran reported in (2015) 2 SCC 610 and by referring to these decisions a contention is raised that looking to the scope of interference under Article 226 of the Constitution of India, when the learned Presiding Officer has gone in details and upon analysis of material, has passed the order, the same cannot be stated to be perverse order. No other submissions have been made.
[21] In re-joinder to this, learned advocate Mr. Dave has relied upon few decisions delivered by various Courts including the Apex Court in the case of Divisional Controller, KSRTC (NWKRTC) versus A.T.Mane reported in (2005) 3 SCC 254, in the case of Cholan Roadways Limited v. G. Thirungnanasambandam reported in 2005 (3) SCC 241. Yet another decision which has been relied upon is in the case of Rajasthan State Road Transport Corporation & Anr., v. Satya Prakash reported in 2013 (9) SCC 232. As well as two other decisions in the case of D. P. Maheshwari (supra) (1983 (o) GLHEL - HC SC 7067) and the decision of the Division Bench of this Court in the case of R. Blasubramanian Page 19 of 37 C/SCA/5546/2018 ORDER v. Carborundum Universal Limited reported in 1976 GLR 787 ( = 1975 Law Suit (Guj) 80) and by referring all these decisions, learned advocate Mr. Dave has pointed out that this is a fit case in which extra ordinary jurisdiction to be exercised.
[22] Having heard the learned advocates for the respective parties and having gone through the material on record, and keeping in mind a bare perusal of the impugned order which reflects ex-facie that there is an application of mind on the part of the learned Presiding Officer while exercising the jurisdiction. Even the documents which have been relied upon have also been examined and an order in question is passed after granting enough opportunity to both the sides and while arriving at a conclusion that the reasons have also been assigned and therefore, overall exercise of jurisdiction is reflecting in the order with an application of mind and as such there reflects no perversity.
[23] Some of the conclusions which are arrived at by the learned Presiding Officer are not possible to be ignored by this Court. First of all the stands taken by the learned advocate appearing for the petitioner before the Court below and pressed into service the relevant documentary evidence and after thorough examination of material, the learned Presiding Officer on internal page 11 have found that these documents which are referred to are concocted and not correct and bogus. Thus, a specific conclusion has been arrived at is based upon even interpretation of Rule 66 of the Rules and after examining all these documents whatever documents which are produced by the Company for the year 2015-16 and for the year 2017 reflects no proper address, no inward numbers and not in consonance with the provisions of Section 33(4) of the Act read with Rule 66 Page 20 of 37 C/SCA/5546/2018 ORDER of the Rules and upon examination and analysis, it has been specifically found that the same has been prepared on the same date only. When this conclusion based upon examination of the material on record and the conclusion is arrived at is not possible to construe as perverse in any manner and even if there is another view is possible it is not for this Court to substitute especially when the petition is based under Article 226 of the Constitution of India.
[24] Yet another circumstance which has been found by the learned Presiding Officer is that by virtue of statutory provisions, it is not open for the petitioner - Company to taken a decision to terminate the services without prior permission and for coming to this conclusion, even the testimony of relevant witness is also considered as has been reflecting from para 4 of the decision and as such this being a case which requires proper examination of material, instead of thwarting main application here at this stage, the learned Judge found that original Approval Application no. 90 of 2017 itself is to be proceeded with on merits and as such, when such is the conclusions based upon the interpretation of the statutory provisions, this Court find it difficult to construe that this order as perverse in any manner.
[25] This Court while coming to this conclusion has also considered various decisions which have been placed on record by the respective sides, but after going through the decisions delivered by this Court in Special Civil Application No. 7710 of 2009 as well as Special Civil Application No. 17726 of 2006, are found to be in favour of the respondent and as such keeping those observations in mind, the Court is of the opinion that this Court is not interfering to exercise extra ordinary jurisdiction. The chronology of entire events and the specific finding that an Page 21 of 37 C/SCA/5546/2018 ORDER attempt is made by the petitioner to concoct the documents, the equitable jurisdiction does not deserve to be exercised in favour of the petitioner. Additionally, while considering the effect of Rule 66 of the Rules, vis-a-vis the effect of Section 33 of the Act a conclusion since based upon and in consonance with the decision delivered by this Court in the aforesaid two Special Civil Applications, the view which has been taken is not possible to be substituted, the Court deems it proper to refer to some of the observations made by the learned Single Judge which are found to be relevant to be quoted herein after :
"7. The relevant provisions of Section 33 deserve to be set out as under:
"Section 33 : Conditions of service, etc. to remain unchanged under certain circumstances during pendency of proceedings.-(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall, -
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish whether by dismissal or otherwise, any workman concerned in such dispute save with the express permission in writing of the authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in Page 22 of 37 C/SCA/5546/2018 ORDER respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman -
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceedings; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employers.
xxx xxx xxx ....."
8. Thus, these two circumstances, namely requirement of obtaining permission and requirement of obtaining approval are distinctly provided under Section 33(1) and 33(2) of the ID Act. The dispute under the present case being Reference (IT) No. 19 of 2003 was absolutely with regard to the workman's conduct rendering him liable to be terminated as it was specifically mentioned in the show cause notice dated 22.5.2002. This notice, in terms, stated as to why his services may be not terminated as he was not eligible to get the benefits of appointment on compensatory basis as his mother was serving as teacher. This notice was subject matter of Page 23 of 37 C/SCA/5546/2018 ORDER scrutiny and adjudication in Reference (IT) No. 19 of 2003 and therefore, this Court is of the considered view that the provision of Section 33(1) of the ID Act came into play. Employer Board, therefore, was under an obligation to move a specific application for seeking express permission from the Tribunal before effecting the order of termination, which had nexus to and which was result of inquiry initiated pursuant to the show cause notice dated 22.5.2002, legality whereof was subject matter of Reference (IT) No.19 of 2003. The counsel has vehemently submitted that the subject matter was different as the Reference at the relevant time was not pending, however, the counsel for the Board could not deny that on 31.3.2003 i.e the date on which the order came to be passed, the Reference was on the file of the Tribunal. Looking to the plain language employed by the legislature in couching section, one need have any doubt with regard to operation of the section. The employer was required to obtain prior permission for validly effecting the termination when the dispute of show cause notice itself was at large and under judicial scrutiny of the Tribunal. The subsequent dismissal of the Reference for default and its restoration would be insignificant so far as applicability of Section 33 of the Act. The Court also needs to be mindful of the fact that the Tribunal did not have any power to dismiss the Reference for default and therefore, such dismissal for default order would have no bearing upon the controversy in question. Suffice it to say that there was non compliance of Section 33(1) of the Act. The Tribunal cannot be said to have erred in passing the impugned order, calling for any interference from this Court under Article 227 of the Constitution of India. The petition, deserves to be dismissed and is accordingly dismissed. There shall be no order as to costs."
Page 24 of 37 C/SCA/5546/2018 ORDER[25.1] far as Special Civil Application No. 7710 of 2009 is concerned, the observations made in para Nos. 3, 4 and 5 since relevant are quoted hereinafter, "3. This Court is unable to accept submission made by Shri Nanavati for the petitioner for the following reasons:
1) Language of Section 33 is very clear and, in my view it has taken care of encompassing the possible situation including the present one which has arisen.
2) It cannot be said that the respondent workman did have the right to raise industrial dispute with regard to issuance of show cause notice being not proper or being illegal, in that case that becomes subject matter of dispute and therefore, any incidental action thereof or consequence thereof would have to be governed by the provisions of Section 33(1)(b) of the I. D. Act and as such it is the duty cast upon the employer to seek prior permission for effecting any change which includes termination of service of the employee pending the said dispute.
4. In my view therefore, petition does not deserve to be admitted for the short reason stated herein-above.
5. At this stage, Shri Nanavati for the petitioner submits that as this Court has not accepted the submission, the present order may not come in the way of the petitioner in taking recourse to Section 33(1)(b) of the I.D. Act, to which Shri Mankad, learned advocate for the respondent submits that it is always open to the employer to take out any proceedings that may be deemed fit and, therefore, there is no requirement of any specific observation on this request."
Page 25 of 37 C/SCA/5546/2018 ORDER[26] In view of the aforesaid circumstances which are prevailing on record and in view of the fact that after considering every material, the learned Presiding Officer has come to the conclusion that the petitioner Company has not rejected nor continue by giving any reply. Those letters which are pressed into service and as such when such is the circumstance, the evidence on record, the Court is of the opinion that instead of these preliminary issues, if the main Approval Application No. 90 of 2017 if to be dealt with as ordered by the learned Presiding Officer, is just and proper exercise to be undertaken and therefore, there is no material irregularity of any nature in passing the order in question.
[27] With a view to avoid unnecessary burden, the Court is not reflecting each of the observations of the decisions relied upon by both the sides especially when the Court found no material irregularity or perversity. The Court has considered those decisions and passed the present order and as such keeping in view the well recognized principle that if there is a slight change in the fact or additional fact would make a world of difference in applying the precedent, the Court is not inclined to unnecessary burden the present order by quoting each of the observations contained in various decisions cited by both the sides on the very same issue and as such keeping all these circumstances in mind, this Court is of the clear opinion that no exercise of extra ordinary jurisdiction at this stage deserves to be exercised, more particularly, when the original application is ordered to be heard on merits. The Court is also of the opinion that it would be open for the petitioner to equate or legally permissible contentions while presenting the case in original Approval Application No. 90 of 2017. Hence, keeping the scope of Article 226 and Article 227 of the Constitution of India this is not Page 26 of 37 C/SCA/5546/2018 ORDER a fit case in which any interference is to be made which would further delay the Approval Application.
[28] This Court is also mindful of one of the decision delivered by the Apex Court in the case of Satti Paradesi Samadhi and Pillayar Temple v. M. Sankuntala Through Legal Representatives and Others reported in (2015) 5 SCC 674 in which it has been propounded that any issue which requires element of inquiry into facts, the same cannot be treated as preliminary issue. The Apex Court of course in context of issue of limitations has observed that why the proposition of law which has been laid down is worth to be taken care of. The relevant observations in para Nos. 13, 14, 15 is relating with any issue which requires examination of law and fact, the same may not be treated as preliminary issue. Since this observations are relevant, the Court deems it proper to quote hereinafter;
"13. The controversy pertaining to the provisions contained in Order 14, Rule 2 had come up for consideration before this Court in Major S. S. Khanna v. Brig. F. J. Dillon2 wherein it has been ruled thus:-
"18.... "Under O. 14, R. 2 where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issue of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all issues in a suit should be tried by the Court:Page 27 of 37 C/SCA/5546/2018 ORDER
not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit".
Be it stated, the aforesaid pronouncement was made before the amendment of the Code of Civil Procedure in 1976.
14. In Ramesh D. Desai and others v. Bipin Vadilal Mehta and others3, while dealing with the issue of limitation, the Court opined that :(SCCp.652 para 19) "19. A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact."
The Court further proceeded to state that a plea of limitation is a mixed question of fact and law. On a plain consideration of the language employed in sub-rule (2) of Order 14 it can be stated with certitude that when an issue requires an inquiry into facts it cannot be tried as a preliminary issue. In the said judgment the Court opined as follows: (Ramesh B. Desai case SCC p.650 para 13) "13. Sub-rule (2) of Order 14, Rule 2 CPC lays down that where issues both of law and of fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the court, or (b) a bar to the suit created by any law for the time being in force. The provisions of this Rule came up for consideration before this Court in Major S. S. Khanna v. Brig. F. J. Dillon (AIR 1964 SC 497) and it was held as under: (SCR p. 421) (P. 503 of AIR) "18.....Under Order 14, Rule 2, Code of Civil Procedure Page 28 of 37 C/SCA/5546/2018 ORDER where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the court; not to do so, especially when the decision on issues even of law depend upon the decision of issues of fact, would result in a lopsided trial of the suit".
Though there has been a slight amendment in the language of Order 14, Rule 2 CPC by the Amending Act, 1976 but the principle enunciated in the above quoted decision still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the court to try a suit o mixed issues of law and fact as a preliminary issue where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue."
15. In the case on hand, we find that unless there is determination of the fact which would not protect the plaintiff under Section 10 of the Limitation Act the suit cannot be dismissed on the ground of limitation. It is not a case which will come within the ambit and sweep of Order 14 Rule 2 which would enable the court to frame a preliminary issue to adjudicate thereof. The learned Single Judge as it appears, has remained totally oblivious of the said facet and adjudicated the issue as if it falls under Order 14 Rule 2. We repeat that on the scheme of Page 29 of 37 C/SCA/5546/2018 ORDER Section 10 of the Limitation Act we find certain facts are to be established to throw the lis from the sphere of the said provision so that it would come within the concept of limitation. The Division Bench has fallen into some error without appreciating the facts in proper perspective. That apart, the Division Bench, by taking recourse to Articles 92 to 96 without appreciating the factum that it uses the words "transferred by the trustee for a valuable consideration" in that event the limitation would be twelve years but in the instant case the asseveration of limitation would be twelve years but in the instant case the asseveration of the plaintiff is that the trustee had created three settlement deeds in favur of his two daughters and a granddaughter. The issue of consideration has not yet emerged. The settlement made by the father was whether for consideration or not has to be gone into and similarly whether the property belongs to the Trust as Trust is understood within the meaning of Section 10 of the Limitation Act has also to be gone into. Ergo, there ca be no shadow of doubt that Issue 1 that was framed by the learned Single Judge was an issue that pertained to the fact and law and hence, could not have been adjudicated as a preliminary issue. Therefore, the impugned order is wholly unsustainable."
[29] So far as well recognized principle on the issue of exercise of extra ordinary jurisdiction is visible clearly from one of the decision of the Apex Court in the case of Sameer Suresh Gupta through PA Holder V/s. Rahul Kumar Agarwal, reported in (2013) 9 SCC 374 in which the Apex Court has analyzed both the Articles namely Articles 226 and 227 of the Constitution of India and these parameters which are prescribed in the said decision are since relevant, the same are quoted hereinafter:-
Page 30 of 37 C/SCA/5546/2018 ORDER"6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai vs. Ram Chander Rai and others (2003) 6 SCC 675. After considering various facets of the issue,the two Judge Bench culled out the following principles:
"(1) Amendment by Act No.46 of 1999 with effect from 01-07-2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.Page 31 of 37 C/SCA/5546/2018 ORDER
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above-said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a Page 32 of 37 C/SCA/5546/2018 ORDER subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."Page 33 of 37 C/SCA/5546/2018 ORDER
7. The same question was considered by another Bench in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 SCC 329, and it was held:
"(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the 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, at 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 the 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 their 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 and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.Page 34 of 37 C/SCA/5546/2018 ORDER
(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise 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 the 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) The 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 L. Chandra Kumar v. Union of India and therefore abridgment 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 Page 35 of 37 C/SCA/5546/2018 ORDER 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.
(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 the 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 Page 36 of 37 C/SCA/5546/2018 ORDER exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."
[30] In the aforesaid circumstances and in view of the facts which are emerging from the record, this Court is of the opinion that the finding which has been arrived at by the learned Presiding Officer, in the present case is not possible to be construed as perverse in any manner and as such looking to the overall material on record, this Court is of the considered opinion that these petitions are not possible to be entertained. Accordingly, the same being devoid of merit deserve to be dismissed. Hence, all the petitions are dismissed hereby with an expectation that original Approval Application No. 90 of 2017 will be dealt with as expeditiously as possible by the learned Presiding Officer and parties to the proceedings are expected to co-operate with the same.
[31] With these observations, the petitions are disposed of.
(A.J.SHASTRI ,J.) dharmendra Page 37 of 37