Madhya Pradesh High Court
Kanchhedi Lal vs Presiding Officer And Anr. on 8 August, 2007
Equivalent citations: 2008(1)MPHT181
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. In this intra-Court appeal preferred under Section 2 of Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 (far brevity 'the Act'), the defensibility and legal acceptability of order dated 16-5-2007 passed by the learned Single Judge in Writ Petition(S) No. 3355/2007 is called in question.
2. Mr. N.S. Ruprah, learned Counsel appearing, for the, respondent No. 2 has raised a preliminary objection that the writ appeal is not maintainable as the order passed by the learned Single Judge has emanated from a proceeding before the Central Government Industrial Tribunal-cum-Labour Court (hereinafter referred to as the CGIT-cum-Labour Court') which had culminated in an award whereby the CGIT-cum-Labour Court passed the award ex parte and eventually, declined to interfere in the order of dismissal passed by the Management against the workman. As a preliminary objection has been raised, it is obligatory on the part of this Court to deal with the same.
3. Mr. N.S. Ruprah, learned Counsel for the respondents has commended us to Sub-section (1) of Section 2 of the Act. The said proviso reads as under:
2. Appeal to the Division Bench of the High Court from a judgment or order of one Judge of the High Court made in exercise of original jurisdiction.- (1) An appeals ball lie from a judgment or order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India to a Division Bench Comprising of two Judges of the same High Court:
Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.
4. Mr. N.S. Ruprah, learned Counsel for the respondent No. 2 has laid immense emphasis on the first proviso to Sub-section (1) of Section 2 to pyramid the submission that no appeal shall lie against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. Mr. N.S. Ruprah, learned Counsel has placed heavy reliance on the decision rendered in Kanhaiyalal Agrawal and Ors. v. Factory Manager, Gwalior Sugar Co. Limited .
5. Resisting the aforesaid submission, Mr. Sanjay Verma, leaned Counsel for the appellant has commended us to the Full Bench decision of this Court rendere in Dr. Jaidev Siddha and Ors. V. Jaiprakash Siddha and Ors. 2007 (3) M.P.H.T. 388 (FB) : Writ Appeal No. 699/2007, decided on 19-7-2007). The Full Bench of this Court after referring to the decisions rendered in Hari Vishnmu Kamath v. Ahmad Ishaque and Ors. , Umaji Keshao Meshram and Ors. v. Smt. Radhikabai and Anr. , Sushilabai Laxminarayan Mudliyar and Ors. v. Nihalchand Waghajibhai Shaha and Ors. AIR 1993 Suppl. (1) SCC, Ratnagiri District Central Co-operative Bank Ltd. v. Dinkar Kashinath Watve C.A. No. 520 of 1989, decided on 27-1-1989, Mangalbhai and Ors. v. Dr. Radhyshyam , Lokmat Newspapers Pvt. Ltd. v. Shankarprasad , Surya Dev Rai v. Ram Chander Rai and Ors. , Custodian of Evacuee Property, Bangalore v. Khan Saheb Abdul Shukoor etc. , Nagendra Nath Bora and Anr. v. Commissionar of Hills Division and Appeals , T.C. Basappa v. T. Nagappa and Anr. and Rupa Ashok Hurra v. Ashok Hurra and Anr. AIR 2002 SC 1771 and Kishorilal v. Sales Officer, District Land Development Bank and Ors. (2006) 7 SCC 496, has held as under:
14. In these case of Surya Dev Rai v. Ram Chander Rai and Ors. , a two Judge Bench of the Apex Court after referring to the established principles relating to the constitutional jurisdiction conferred on the High Court under Articles 226 and 227- of the Constitution of India and after referring to the basic spectrum inhered in writ of certiorari and further referring to the decisions rendered in Custodian of Evacuee Property, Bangalore v. Khan Saheb Abdul Shukoor etc. , Nagendra Nath Bora and Anr. v. Commissioner of Hills Divisions and Appeals , T.C. Basappa v. T. Nagappa and Anr. and Rupa Ashok Hurra v. Ashok Hurra and Anr. AIR 2002 SC 1771, expressed the opinion in Paragraph 19 as under:
19. Thus, there is no manner of doubt that the orders and proceedings of a Judicial Court subordinate to High Court are amenable to writ jurisdiction of High Court under Article 226 of the Constitution.
15. Thereafter, Their Lordships dwelled upon the supervisory jurisdiction under Article 227 of the Constitution of India and the difference between the writ of certiorari under Article 226 and supervisory jurisdiction under Article 227 and opined as under:
25. Upon a review of decided cases and a servey of the occasions wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labeling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court, exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the Inferior Court or Tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, may be byway of guiding the Inferior Court or Tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the Inferior Court or Tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised, on a prayer made by or on behalf of the party aggrieved, the supervisory jurisdiction is capable of being exercised suo motu as well.
16. In Kishorilal v. Sales Officer, District Land Development Bank and Ors. (2006) 7 SCC 496, the Apex Court was dealing with an order whereby the learned Single Judge had reversed the finding of the Board of Revenue. An LPA was preferred and the Division Bench dismissed the same holding that it was not maintainable on the premises that the learned Single Judge had exercised the jurisdiction under Article 227 of the Constitution of India. Their Lordships while dealing with the maintainability of the appeal before the Division Bench expressed thus:
13. The learned Single Judge of the High Court, in our opinion committed an error in interfering with the findings of fact arrived at by the Board of Revenue. The Division Bench of the High Court also wrongly dismissed the LPA without noticing that an appeal would be maintainable if the writ petition was filed under Articles 226 and 227 of the Constitution of India as was held by this Court in Sushilabai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha.
6. On the basis of the aforesaid, the Full Bench in Paragraph 17 has expressed the view as under:
7. From the aforesaid enunciation of law it is quite vivid and luminescent that the pleadings in the writ petition, nature of the order passed by the learned Single Judge, character and the contour of the order, directions issued, nomenclature given, the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper technical manner that an order passed in a writ petition, if there is assail to the order emerging from the Inferior Tribunal or Subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. Phraseology used in exercise of original jurisdiction under Article 226 of the Constitution in Section 2 of the Act cannot be given a restricted and constricted meaning because an order passed in a writ petition can tantamount to an order under Article 226 or 227 of the Constitution of India and it would depend upon the real nature of the order passed by the learned Single Judge. To elaborate; whether the learned Single Judge has exercised his jurisdiction under Article 226 or under Article 227 or both would depend upon various aspects and many a facet as has been emphasized in the afore quoted decisions of the Apex Court. The pleadings, as has been indicated hereinabove, also assume immense significance. As has been held in the case of Surya Dev Rai (supra), a writ of certiorari can be issued under Article 226 of the Constitution against an order of a Tribunal or an order passed by the Subordinate Court. In quintessentiality, it cannot be put in a straitjacket formula that any order of the learned Single Judge that deals with an order arising from an Inferior Tribunal or the Subordinate Court is an order under Article 227 of the Constitution of India and not an order under Article 226 of the Constitution. It would not be an overemphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exit, overlap or imbricate. In this context it is apt to note that there may be cases where the learned Single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of the case.
7. In the case of Kanhaiyalal Agrawal (supra), the Apex Court in Paragraph 6 has expressed the view as under:
6. So far as the law on the matter is concerned, as to whether an appeal would lie against an order made in writ petition before the High Court challenging an order of the Labour Court, this Court in its decision in Lokmal Newspapers (P) Ltd. v. Shankarprasad stated that if a Single Judge exercises jurisdiction under Article 226, letters patent appeal would be maintainable, but if the jurisdiction is exercised under Article 227 it will not be maintainable. But with an explanation that if the Single Judge of the High Court in considering the petition under Article 226 or Article 227 does not state under which provision he has decided the matter and where the facts justify filing of petition hoth under Article 226 and Article 227 and a petition so filed is dismissed by the Single Judge on merits, the matter may be considered in its proper perspective in an appeal. This Court held as aforesaid in view of the decision of this Court in Umaji Keshao Meshram v. Radhikabai, Ratnagiri Distt. Central Co-op. Bank Ltd. v. Dinkar Kashinath Watve and Sushilahai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha.
8. On a perusal of the aloresaid paragraph, we are of the considered view that the Apex Court has expressed the opinion that if the learned Single Judge had not expressed under what provision he has decided the matter and where the facts justify filing of petition both under Articles 226 and 227 of the Constitution of India, the matter may be considered in proper perspective in an appeal. In view of the aforesaid, the facts in question have to be considered regard being had to the ratio laid down by the Full Bench of this Court.
9. Mr. Sanjay Verma, learned Counsel for the appellant has drawn our attention to the averments made in the writ petition. It is urged by him that the writ petition was filed under Articles 226 and 227 of the Constitution of India and the same would be evincible from Paragraph 3 (iv) to the subject in brief. It is contended by him that adequate opportunity was not given and thereby the principles of natural justice had not been followed as a result of which the rights of appellant have been affected.
10. Mr. Sanjay Verma, learned Counsel for the appellant has also drawn our attention to the various grounds to highlight that the ex parte award passed by the CGIT-cum-Labour Court is contrary to the basic conception of Industrial law which is meant to establish industrial peace, harmony, working atmosphere, management-workman relationship and to avoid any kind of unfair labour practice. It is urged by him that where there is unfair labour practice; an ex pane award is passed; the learned Single Judge concurs with the same and the workman has prayed for passing of further orders/directions, the said application should be deemed to be an application under Articles 226 and 227 of the Constitution of India.
11. It is worthnoting that in the case of Umaji Keshan Meshram (supra), Their Lordships in Paragraph 106 has expressed the opinion that if the party chooses to file his application under Articles 226 and 227 of the Constitution of India, 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 of the Constitution of India.
12. If the nomenclature, pleadings and the prayer are scrutinized in proper perspective, we have no scintilla of doubt that the order passed by the learned Single Judge should be considered to be an order under Articles 226 and 227 of the Constitution of India. It is worthnoting to mention here that the power exercised by the High Court under Article 226 of the Constitution of India elementarily a reservoir of power to do justice. Sometimes it is called a Dam of justice. It is like a Banyan Tree that gives shelter and protection to a litigant who seeks redressal of his grievance in the Writ Court. True it is, the jurisdiction exercised is extra-ordinary, but, the other two facts, namely, inherent and equitable, cannot be marginalized. If there is an allegation of unfair labour practice which is impermissible under the Industrial Disputes Act, 1947 and the same has not been adverted to by the CGIT-cum-Labour Court, the workman can seek redressal of his grievance under Articles 226 and 227 of the Constitution of India. The pleadings and relief have to be considered, for a litigation is not to be thrown overboard on the ground of non-maintainability because the jurisdiction under Articles 226 and 227 of the Constitution of India can overlap, coexist and juxtapose. The hope and trust of a workman seeking the relief of a different nature would clothe the petition in a different manner.
13. In view of the aforesaid, we are of the considered opinion that the entire factual scenario would go a long way to show that the order passed by the learned Single Judge was not exclusively under Article 227 of the Constitution of India inasmuch as the pleadings and relief are quite different, the same do require to be adumbrated. Hence, we repel the preliminary objection of Mr. N.S. Ruprah, learned Counsel for the respondent No. 2 as regards the maintainability of the writ appeal.
14. Presently to the merits of the case. The writ petitioner had raised an industrial dispute which was referred to CGIT-cum-Labour Court and the CGIT-cum-Labour Court proceeded ex parte. The learned Single Judge has held that certain dates were given but the workman did not choose to appear.
15. Submission of Mr. Sanjay Verma, learned Counsel appearing for the appellant is that the workman was a Gang-man in Railways and the Counsel did not inform him and regard being had to the status in the hierarchy, the CGIT-cum-Labour Court should have adjourned the matter or taken such steps so that the controversy is put to rest.
16. In view of the aforesaid, we are disposed to think that the learned Single Judge should have set aside ex parte award passed by the CGIT-cum-Labour Court and afforded an opportunity to the present appellant to put forth his contentions. In view of the aforesaid, we set aside the order passed by the CGIT-cum-Labour Court and that of the learned Single Judge and remit the matter to the CGIT-cum-Labour Court for fresh adjudication. The rest of the matter does not rest here. While granting an opportunity to the workman to put forth his contention, a balance has to be struck.
17. Mr. Sanjay Verma, learned Counsel for the appellant very fairly stated that the workman would not claim any back wages till the next date of hearing.
18. Regard being had to the aforesaid, we direct appellant Kanchhedi Lal and respondent No. 2-Divisional Manager, Central Railway, Jabalpur to appear before the CGIT-cum-Labour Court on 17th September, 2007. The CGIT-cum-Labour Court shall proceed with the case in quite promptitude and pass appropriate order by end of November, 2007.
19. We may hasten to clarify that in the event of ultimate success, it is within the domain and discretion of the CGIT-cum-Labour Court to deal with the back wages keeping the cut-off-date as 17th September, 2007. Needless to emphasize, the parties are at liberty to adduce evidence and put forth all possible contentions available in law. The writ appeal is allowed to the extent indicated above. There shall be no order as to costs.