Madhya Pradesh High Court
Shailendra Kumar vs Divisional Forest Officer on 6 July, 2017
Equivalent citations: (2018) 1 ESC 614, AIR 2018 MADHYA PRADESH 120, (2017) 4 MPLJ 109, (2018) 2 CURLR 861, (2018) 159 FACLR 10, (2017) 4 SCT 163, (2018) 1 SERVLR 551, 2018 (1) KLT SN 99 (MP)
Bench: Hemant Gupta, Anjuli Palo
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HIGH COURT OF MADHYA PRADESH : JABALPUR
( Full Bench )
Writ Appeal No.286/2017
Shaillendra Kumar ................... Appellant
Vs.
Divisional Forest Officer and another ............... Respondents
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Coram :
Hon'ble Shri Justice Hemant Gupta, Chief Justice
Hon'ble Smt. Justice Anjuli Palo
Hon'ble Shri Justice Vijay Kumar Shukla
________________________________________________________________
Shri Naman Nagrath, Senior Advocate, assisted by Shri Jubin Prasad,
and Shri Anvesh Shrivastava, Advocates, appears as amicus curiae.
Shri P. K. Kaurav, Additional Advocate General with Shri Sanjay
Dwivedi, Government Advocate and Shri Amit Seth, Government
Advocate, for the State.
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Whether approved for reporting - Yes
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Law laid down : An order passed in a writ petition arising out of an Award of
a Labour Court is composite order under Article 226 and 227 of the Constitution
of India and, therefore, intra Court appeal would be maintainable.
Challenge to the orders passed by Judicial Courts subordinate to a High
Court, be it in civil or criminal matters, before a Single Bench is only under
Article 227 of the Constitution of India. Therefore, no intra court appeal u/S
2(1) of the M.P. Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam,
2005 is maintainable. Order passed by Division Bench in 2016 (1) MPLJ 643 -
Superintendent, Rajmata Vijaya Raje Scindia Regional Agricultural Research
Station, Ujjain Vs. Hussaini Bee W/o Kalluji is overruled.
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Significant paragraphs : 14, 15, 16, 17 and 18
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ORDER
(Delivered on this 6th day of July, 2017) Per Hemant Gupta, Chief Justice The matter has been placed before this Bench on a reference
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made by the Division Bench of this Court on 3.5.2017, wherein following question was referred for the opinion of this Court:
"Whether an intra-court appeal under Section 2(1) of the M.P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 would be maintainable against an order passed by learned Single Bench assailing an Award passed by the Labour Court?"
02. Since the issue is purely legal, therefore, the facts as are necessary for the decision of the present reference alone are given in brief.
The said question arises out of the fact that the workman, the present appellant, raised an industrial dispute under Section 10 of the Industrial Dispute Act, 1947. The learned Labour Court declined the reference, inter alia, on the ground that the reference has been sought after delay without any reasonable cause. A writ petition directed against the said order has been dismissed by the learned Single Bench on 16.1.2017 for the reason that the appellant has offered no explanation that the industrial disputes survive for 12 years. It is aggrieved by the said decision; the appellant has filed the present appeal under Section 2(1) of the M.P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 (hereinafter referred to as "the Act" for short). The relevant provision reads as under :-
"2. Appeal to the Division Bench of the High Court from a Judgement or order of one Judge of the High Court made in exercise of original jurisdiction. - (1) An appeal shall lie from a Judgement 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
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interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.
(2) An appeal under sub-section (1) shall be filed within 45 days from the date of order passed by a single Judge:
Provided that any appeal may be admitted after the prescribed period of 45 days, if the petitioner satisfies the Division Bench that he had sufficient cause for not preferring the appeal within such period."
03. The question as to whether an intra Court appeal would lie against an order passed under Article 226 and/or 227 has been examined by Full Bench of this Court in Jaidev Siddha (Dr.) and others Vs. Jaiprakash Siddha and others reported as 2007 (3) MPLJ 595 wherein, the expression "in exercise of original jurisdiction" appearing in Section 2 (1) of the Act came up for interpretation in conflicting view of the Division Bench judgments of this Court, the Court held that the jurisdictional prospective in the constitutional context are to be examined and that 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. It would depend upon the real nature of the order passed by the learned Single Judge. The Court held as under:-
"17. 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
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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 quintessentially, 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."
04. The Full Bench has overruled judgment of this Court reported as Rama and Co. Vs. State of M.P. and another - 2007 (3) MPLJ 154.
An Special Leave Petition against an order of Division Bench of this Court
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in the aforesaid case was dismissed. Thereafter, the correctness of the Full Bench judgment was doubted as the Bench was of the opinion that dismissal of S.L.P amounts to the approval of the Judgment of this court in Rama and Co's (Supra). Thereafter, the matter was considered by another 5 Judges Bench in the case of Manoj Kumar Vs. Board of Revenue and others reported as ILR (2007) M.P. 1504. The Larger Bench of this Court held that when this Court issues a writ of certiorari, the High Court acts in exercise of original jurisdiction and not in exercise of appellate or revisional jurisdiction. The power to issue writs under Article 226 is original, whereas the power under Article 227 is not restricted to administrative superintendence. It also encompasses judicial superintendence. The Court held that the effect of dismissal of S.L.P. arising from the decision in the case of Rama and Company (supra) does not have any impact on the Full Bench decision in the case of Jaidev Siddha (supra). The Court has held as under :-
"31. The purpose of referring to the aforesaid decisions is only to show that in issuing a writ of certiorari the High Court acts in exercise of original jurisdiction and not in exercise of appellate or revisional jurisdiction. Their Lordships have made a distinction with regard to supervisory jurisdiction and appellate or revisional jurisdiction. As is evincible, the power to issue writs under Article 226 of the Constitution is original and the jurisdiction exercised is original jurisdiction. We may also note that in Surya Dev Rai (supra) the Apex Court while referring to Umaji Keshao Meshram (supra) has opined that the proceedings under Article 226 are in exercise of original jurisdiction of the High Court while the proceedings under Article 227 of the Constitution are not original but only supervisory. It is worth noting that Article 227 is not restricted to
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administrative superintendence. It also encompasses judicial superintendence. Their Lordships have held that though the powers under Article 227 is akin to that of appellate or revisional power yet to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunal within the bounds of their authority and not for correcting mere errors. The Apex Court has further held that exercise of supervisory jurisdiction is not an original jurisdiction and in that sense it is akin to appellate, revisional or corrective jurisdiction. The powers exercised under Article 226 and Article 227 of the Constitution, as has been held in Surya Dev Rai (supra), are distinct. In Paragraph 19 of the said decision it has been held 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."
33. If the analysis of law is properly understood it is clear as noon day that the High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction.......
34. At this juncture we may fruitfully state that the word 'superintendence' has not been used in Article 226 of the Constitution. It is also evident that the term 'writs' is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and Tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and Tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum.
37. From the aforesaid enunciation of law it is quite vivid
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that two powers are distinct and that is why Their Lordships resorted to Article 226 for one part and invoked Article 227 of the Constitution for the other facet. It is worth noting that Articles 226 and 227 of the Constitution of India are supplement to each other but that does not convey that the power exercised under them are identical in all cases. The Apex Court, time and again, has expressed the view that the power exercised under Article 226 is to be characterised as supervisory power and not power exercised in appellate or revisional jurisdiction. The consistent view of the Apex Court is that the power exercised under Article 226 is in exercise of original jurisdiction and not under 'supervisory jurisdiction'. To elaborate: whenever word 'supervisory' has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or Tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of 'judicial review' but the jurisdiction exercised is different. In Achutananda Baidya v. Prafullya Kumar Gayen - AIR 1997 SC 2077, it has been held that power of superintendence under Article 227 includes within its concept the power of judicial review. In our considered opinion when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a Tribunal or Inferior Courts or Administrative Authorities.
60. The labyrinthine the crosses the mind because one feels that the term 'original jurisdiction' being absent in the Clause 10
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of the Letters Patent creates a statutory prescription and prohibition to entertain a writ appeal if the learned Single Judge has dealt with the same in exercise of supervisory power under Article 226 of the Constitution. We have repeated at the cost of repetition that there can be no scintilla of doubt that an appeal provision can always be curtailed and an appeal under the Letters Patent is subject to statutory provision. That has been so stated Jamshed N. Guzdar (supra), but, a significant one, whether there is such prohibition, an obstruction, an embargo. In Clause 10 of the Letters Patent or for that matter in Clause 15 of the Letters Patent of the Chartered High Courts Articles 226 and 227 were not used and could not have used but the Apex Court while interpreting the said phraseology has used Articles 226 and 227 of the Constitution in number of decisions. Their Lordships, we may humbly state, have drawn the distinction between the original jurisdiction and supervisory jurisdiction, exercise of power under Articles 226 and 227 and many other facets which are to be taken into consideration while entertaining an appeal under the Letters Patent. Therefore, it would be an anathema to the precedential concept to express an opinion that the said decisions would not be applicable to the 2005 Adhiniyam.
65. We have already analysed the distinction between the original and supervisory jurisdiction. If the entire provision is scrutinised in a purposive manner it is clear that the Legislature has intended to make a distinction between an order passed in exercise of original jurisdiction under Article 226 of the Constitution and an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution. It has to be borne in mind that the power of the High Court under Article 226 of the Constitution are not confined to prerogative writs inasmuch as it can issue directions, orders, writs and can mould the relief to meet the peculiar requirements. The powers conferred on the High Court under the said Article is of wide expanse'. In Director of settlements, A.P. and Ors. v. M.R. Apparao and Anr. - (2002) 4 SCC 638 it has been held that the power under Article 226 is essentially a power upon the
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High Court for issuance of high prerogative writs for enforcement of fundamental rights as well as non-fundamental or ordinary legal rights, which may come within the expression 'for any other purposes'. The powers of the High Courts under Article 226 though are discretionary and no limits can be placed upon their discretion they must be exercised along the recognised lines and subject to certain self-imposed restrictions. It is a constitutional power conferred on the High Court to see no man is subject to injustice by violation of law. In exercise of this Article the High Court is expected to erase injustice and not to make justice a by-product.
66. When the provision has made two distinctions and the legislative intendment is clear, such intention is to be understood in accord with the view expressed by the Apex Court. When the Legislature has used the terms 'in exercise of original jurisdiction' and 'supervisory jurisdiction' it has to be understood that they are used in contradistinctions in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. That is the purpose of the said provision and if the Section is understood in entirety it is clear as day.
67. In view of our aforesaid analysis we proceed to record our conclusions in seriatim:
(i) A power to issue the writ is original and the jurisdiction exercised is original jurisdiction.
(ii) Proceedings under Article 226 of the Constitution are in exercise of original jurisdiction of the High Court whereas the proceedings initiated under Article 227 of the Constitution are supervisory in nature.
(iii) When a writ is issued under Article 226 of the Constitution it is issued in exercise of original jurisdiction whether against a Tribunal or an Inferior Court or Administrative Authorities.
(iv) The power exercised under Article 226 of the Constitution
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is in exercise of original jurisdiction and not supervisor}' jurisdiction.
(v) Exercise of supervisory power and power of superintendence is not to be equated with the original or supervisory jurisdiction."
05. The provisions of the Act came up for consideration before the Supreme Court in a judgment in the case of Ramesh Chandra Sankla and others Vs. Vikram Cement and others - (2008) 14 SCC 58. In the said case, the Supreme Court was seized of an issue arising out of the reference made to the Labour Court on behalf of the workmen who were said to have accepted voluntary retirement scheme framed by the employer. The employer sought framing of a preliminary issue in respect of jurisdiction of the Labour Court which was declined. The employer approached the High Court by filing a writ petition, which was dismissed for the reason that an order passed by the Labour Court and confirmed by the Industrial Court was interlocutory order and does not call for interference in exercise of supervisory jurisdiction under Article 227 of the Constitution. The intra Court appeal fled by the employer was not found to be maintainable as the learned Single Judge was found to be exercising supervisory jurisdiction. It is the said order which challenged before the Supreme Court. The Supreme Court held as under :-
"41. Bare reading of sub-section (1) of Section 2 of the Act, quoted above, leaves no room for doubt that it allows a party aggrieved by a decision of a Single Judge of the High Court to appeal to a Division Bench of the High Court if a Single Judge has rendered a judgment or passed an order in exercise of original jurisdiction under Article 226 of the Constitution.
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Proviso to sub-section (1) expressly declares that no such appeal shall lie against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution.
42. It is, therefore, clear that if the order is passed by a Single Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution, an intra-court appeal would lie. If, on the other hand, a Single Judge exercises power of superintendence under Article 227 of the Constitution, intra court appeal would not be competent.
47. In our judgment, the learned counsel for the appellant is right in submitting that nomenclature of the proceeding or reference to a particular Article of the Constitution is not final or conclusive. He is also right in submitting that an observation by a Single Judge as to how he had dealt with the matter is also not decisive. If it were so, a petition strictly falling under Article 226 simpliciter can be disposed of by a Single Judge observing that he is exercising power of superintendence under Article 227 of the Constitution. Can such statement by a Single Judge take away from the party aggrieved a right of appeal against the judgment if otherwise the petition is under Article 226 of the Constitution and subject to an intra court/letters patent appeal? The reply unquestionably is in the negative [see Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors., (1998) 5 SCC 749]."
The Court held that the Division Bench of this Court was right in coming to the conclusion that the intra Court appeal filed by the Company was not maintainable.
06. The provisions of the Act came up for consideration before the Supreme Court in the case of State of Madhya Pradesh and others Vs. Visan Kumar Shiv Charan Lal - (2008) 15 SCC 233. The Division Bench of the High Court had held that intra Court appeal is not
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maintainable against an order of the learned Single Bench, whereby the writ petition against the award of the Labour Court was dismissed. The Division Bench held that the appeal to be not maintainable, as the order was in terms of Article 227 of the Constitution of India. The Supreme Court held that the intra Court appeal was maintainable and the order was set aside and the matter remitted to the High Court for fresh decision.
07. In the case of Ashok K. Jha and others Vs. Garden Silk Mills Limited and another - (2009) 10 SCC 584, the workmen challenged the transfer order before the Labour Court in terms of Bombay Industrial Relation Act, 1946. Against an order passed by the Labour Court, the employees filed an appeal. The Industrial Court set aside the order of Labour Court and directed the employer to withdraw the orders of transfer. The writ petition filed by the employer was dismissed by the learned Single Bench. The Letters Patent Appeal was allowed by the Division Bench. It is the order of the Division Bench which was challenged before the Supreme Court. The Supreme Court held as under :-
"36. If the judgment under appeal falls squarely within four corners of Article 227, it goes without saying that intra court appeal from such judgment would not be maintainable. On the other hand, if the petitioner has invoked the jurisdiction of the High Court for issuance of certain writ under Article 226, although Article 227 is also mentioned, and principally the judgment appealed against falls under Article 226, the appeal would be maintainable. What is important to be ascertained is the true nature of order passed by the Single Judge and not what provision he mentions while exercising such powers.
37. We agree with the view of this Court in Ramesh Chandra Sankla that a statement by learned Single Judge that
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he has exercised power under Article 227, cannot take away right of appeal against such judgment if power is otherwise found to have been exercised under Article 226. The vital factor for determination of maintainability of intra court appeal is the nature of jurisdiction invoked by the party and the true nature of principal order passed by the Single Judge."
08. The matter has been examined in respect of pari materia provision of the Letters Patent, in a judgment reported as (1999) 6 SCC 275 - Lokmat Newspapers Pvt. Ltd. Vs. Shankarprasad. The question under consideration arose out of an industrial dispute under the provisions of Maharashtra (Recognition of Trade Unions and Prevention of Unfair Labour Practices) Act, 1971 (hereinafter referred to as "the Maharashtra Act"). The Court found that in view of the averments made in the writ petition, the Court has lost sight of the object and purpose of the provisions of the Industrial Dispute Act and the Maharashtra Act, thus, committed serious error of law apparent on the face of the record resulting in serious miscarriage of justice. Therefore, it is a case of invocation of jurisdiction of this Court under Article 226 of the Constitution of India. The Court held as under :-
"The aforesaid decision squarely gets attracted on the facts of the present case. It was open to the respondent to invoke jurisdiction of the High Court both under Articles 226 and 227 of the Constitution of India. Once such a jurisdiction was invoked and when his writ petition was dismissed on merits, it cannot be said that the learned Single Judge had exercised his jurisdiction only under Article 226 of the Constitution of India. This conclusion directly flows from the relevant averments made in the writ petition and the nature of jurisdiction invoked by the respondent as noted by the learned Single Judge in his
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Judgment, as seen earlier. Consequently, it could not be said that Clause 15 of the Letters Patent was not attracted for preferring appeal against the judgment of learned Single Judge. It is also necessary to note that the appellant being the respondent in letters patent appeal joined issues on merits and did not take up the contention that letters patent appeal was not maintainable. For all these reasons, therefore, the primary objection to the maintainability of the letters patent appeal as canvassed by learned counsel for the appellant, has to be repelled....."
09. In the case of Surya Dev Rai Vs. Ram Chander Rai and others reported as (2003) 6 SCC 675, the Supreme Court delineated the difference of jurisdiction under Article 226 and 227 of the Constitution of India. The scope of writ of certiorari was summarized as under:-
"10. Article 226 of the Constitution of India preserves to the High Court the power to issue writ of certiorari amongst others. The principles on which the writ of certiorari is issued are well- settled. It would suffice for our purpose to quote from the 7- Judge Bench decision of this Court in Hari Vishnu Kamath Vs. Ahmad Ishaque and Ors. - (1955) 1 SCR 1104. The four propositions laid down therein were summarized by the Constitution Bench in Custodian of Evacuee Property Bangalore Vs. Khan Saheb Abdul Shukoor etc. - (1961) 3 SCR 855 as under :-
"......the High Court was not justified in looking into the order of December 2, 1952, as an appellate court, though it would be justified in scrutinizing that order as if it was brought before it under Article 226 of the Constitution for issue of a writ of certiorari. The limit of the jurisdiction of the High Court in issuing writs of certiorari was considered by this Court in Hari Vishnu Kamath Vs. Ahmad Ishaque 1955-I S 1104 : (s) AIR 1955 SC 233) and the following four propositions were laid down :-
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"(1) Certiorari will be issued for correcting errors of jurisdiction;
(2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice;
(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous.
(4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision."
12. In the exercise of certiorari jurisdiction the High Court proceeds on an assumption that a Court which has jurisdiction over a subject- matter has the jurisdiction to decide wrongly as well as rightly. The High Court would not, therefore, for the purpose of certiorari assign to itself the role of an appellate court and step into re-appreciating or evaluating the evidence and substitute its own findings in place of those arrived at by the inferior court.
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20. Authority in abundance is available for the proposition that an error apparent on face of record can be corrected by certiorari. The broad working rule for determining what is a patent error or an error apparent on the face of the record was well set out in Satyanarayan Laxminarayan Hegde and Ors. Vs. Mallikarjun Bhavanappa Tirumale, (1960) 1 SCR 890.
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It was held that the alleged error should be self-evident. An error which needs to be established by lengthy and complicated arguments or an error in a long-drawn process of reasoning on points where there may conceivably be two opinions cannot be called a patent error. In a writ of certiorari the High Court may quash the proceedings of the tribunal, authority or court but may not substitute its own findings or directions in lieu of one given in the proceedings forming the subject-matter of certiorari.
21. Certiorari jurisdiction though available is not to be exercised as a matter of course. The High Court would be justified in refusing the writ of certiorari if no failure of justice has been occasioned. In exercising the certiorari jurisdiction the procedure ordinarily followed by the High Court is to command the inferior court or tribunal to certify its record or proceedings to the High Court for its inspection so as to enable the High Court to determine whether on the face of the record the inferior court has committed any of the preceding errors occasioning failure of justice."
10. On the other hand, while examining the scope of supervisory jurisdiction under Article 227 of the Constitution, it was held that the powers of superintendence so conferred on the High Court is administrative as well as judicial, and is capable of being invoked at the instance of any person or may even be exercised suo motu. In Paragraph No.24, the Court noticed the difference between the writ of certiorari under Article 226 and supervisory jurisdiction under Article 227. However, the finding in Paragraph No.25 that the distinction between the two jurisdictions stands almost obliterated in practice, was doubted and was referred to Larger Bench in the case of Radhey Shyam and another Vs. Chhabi Nath and others - (2009) 5 SCC 616 when it was said to the
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following:-
"32. The essential distinctions in the exercise of power between Articles 226 and 227 are well known and pointed out in Surya Dev Rai and with that we have no disagreement. But we are unable to agree with the legal proposition laid down in Surya Dev Rai that judicial orders passed by a civil court can be examined and then corrected/reversed by the writ court under Article 226 in exercise of its power under a writ of certiorari. We are of the view that the aforesaid proposition laid down in Surya Dev Rai, is contrary to the ratio in Mirajkar - AIR 1967 SC 1 and the ratio in Mirajkar has not been overruled in Rupa Ashok Hurra Vs. Ashok Hurra - (2002) 4 SCC 388."
The Larger Bench in its judgment reported as Radhey Shyam and another Vs. Chhabi Nath and others - (2015) 5 SCC 423 held as under:-
"11. It is necessary to clarify that the expression "judicial acts" is not meant to refer to judicial orders of civil courts as the matter before this Court arose out of the order of the Election Tribunal and no direct decision of this Court, except Surya Dev Rai Vs. Ram Chander Rai, (2003) 6 SCC 675, has been brought to our notice where writ of certiorari may have been issued against an order of a judicial court. In fact, when the question as to scope of jurisdiction arose in subsequent decisions, it was clarified that orders of the judicial courts stood on different footing from the quasi- judicial orders of authorities or tribunals.
13. In Naresh Shridhar Mirajkar Vs. State of Maharashtra, AIR 1967 SC 1 : (1966) 3 SCR 744 a nine- Judge Bench judgment, a judicial order of the High Court was challenged as being violative of fundamental right. This Court by majority held that a judicial order of a competent court could not violate a fundamental right. Even if there was
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incidental violation, it could not be held to be violative of the fundamental right. Gajendragadkar, C.J., observed: (AIR pp. 11-12, paras 38-39 & 42) "38. The argument that the impugned order affects the fundamental rights of the petitioners under Article 19(1), is based on a complete misconception about the true nature and character of judicial process and of judicial decisions. When a Judge deals with matters brought before him for his adjudication, he first decides questions of fact on which the parties are at issue, and then applies the relevant law to the said facts. Whether the findings of fact recorded by the Judge are right or wrong, and whether the conclusion of law drawn by him suffers from any infirmity, can be considered and decided if the party aggrieved by the decision of the Judge takes the matter up before the appellate court. But it is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental rights of the citizens under Article 19(1). What the judicial decision purports to do is to decide the controversy between the parties brought before the court and nothing more. If this basic and essential aspect of the judicial process is borne in mind, it would be plain that the judicial verdict pronounced by court in or in relation to a matter brought before it for its decision cannot be said to affect the fundamental rights of citizens under Article 19(1).
39. ... Just as an order passed by the court on the merits of the dispute before it can be challenged only in appeal and cannot be said to contravene the fundamental rights of the litigants before the court so could the impugned order be challenged in appeal under Article 136 of the Constitution, but it cannot be said to affect the fundamental rights of the petitioners. The character of the judicial order remains the same whether it is passed in a matter directly in issue between the parties or is passed
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incidentally to make the adjudication of the dispute between the parties fair and effective. On this view of the matter, it seems to us that the whole attack against the impugned order based on the assumption that it infringes the petitioners' fundamental rights under Article 19(1), must fail.
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42. It is true that the opinion thus expressed by Kania, C.J., in A.K. Gopalan [A.K. Gopalan v. State of Madras, AIR 1950 SC 27 : (1950) 51 Cri LJ 1383 : 1950 SCR 88] had not received the concurrence of the other learned Judges who heard the said case. Subsequently, however, in Ram Singh v. State of Delhi[AIR 1951 SC 270 : (1951) 52 Cri LJ 904 : 1951 SCR 451] , AIR at p. 272 the said observations were cited with approval by the Full Court. The same principle has been accepted by this Court in Express Newspaper (P) Ltd. v. Union of India [AIR 1958 SC 578 : 1959 SCR 12] , AIR at p. 618 and by the majority judgment in Atiabari Tea Co. Ltd. v. State of Assam [Atiabari Tea Co. Ltd. v. State of Assam, AIR 1961 SC 232 : (1961) 1 SCR 809] , AIR at pp. 255-56."
18. While the above judgments dealt with the question whether judicial order could violate a fundamental right, it was clearly laid down that challenge to judicial orders could lie by way of appeal or revision or under Article 227 and not by way of a writ under Articles 226 and 32.
26. The Bench in Surya Dev Rai also observed in para 25 of its judgment that distinction between Articles 226 and 227 stood almost obliterated. In para 24 of the said judgment distinction in the two articles has been noted. In view thereof, observation that scope of Article 226 and 227 was obliterated was not correct as rightly observed by the referring Bench in Para 32 quoted above. We make it clear that though despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected, it has been wrongly assumed in certain
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quarters that the said jurisdiction has been expanded. Scope of Article 227 has been explained in several decisions including Waryam Singh and another vs. Amarnath and another - AIR 1954 SC 215, Ouseph Mathai vs. M. Abdul Khadir - (2002) 1 SCC 319, Shalini Shyam Shetty vs. Rajendra Shankar Patil - (2010) 8 SCC 329 and Sameer Suresh Gupta vs. Rahul Kumar Agarwal - (2013) 9 SCC 374.
27. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226.
31. Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and courts within the bounds of their authority. Under Article 227, orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law."
11. Later another Bench of the Supreme Court in the judgment reported as (2015) 9 SCC 1 - Jogendrasinhji Vijay Singhji Vs. State of Gujarat and others held as under :-
"18. The aforesaid authoritative pronouncement makes it clear as day that an order passed by a civil court can only be assailed under Article 227 of the Constitution of India and the parameters of challenge have been clearly laid down by this Court in series of decisions which have been referred to by a three-Judge Bench in Radhey Shyam (supra), which is a binding precedent. Needless to emphasize that once it is exclusively assailable under Article 227 of the Constitution of
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India, no intra-court appeal is maintainable.
19. The next aspect that has to be adverted to is under what situation a letters patent appeal is maintainable before a Division Bench. We repeat at the cost of repetition that we have referred to series of judgments of this Court which have drawn the distinction between Articles 226 and 227 of the Constitution of India and the three-Judges Bench in Radhe Shyam (supra) has clearly stated that jurisdiction under Article 227 is distinct from jurisdiction under Article 226 of the Constitution and, therefore, a letters patent appeal or an intra-court appeal in respect of an order passed by the learned Single Judge dealing with an order arising out of a proceeding from a civil court would not lie before the Division Bench. Thus, the question next arises under what circumstances a letters patent appeal or an intra-court appeal would be maintainable before the Division Bench.
30. From the aforesaid pronouncements, it is graphically clear that maintainability of a letters patent appeal would depend upon the pleadings in the writ petition, the nature and character of the order passed by the learned Single Judge, the type of directions issued regard being had to the jurisdictional perspectives in the constitutional context. Barring the civil court, from which order as held by the three-Judge Bench in Radhey Shyam (supra) that a writ petition can lie only under Article 227 of the Constitution, orders from tribunals cannot always be regarded for all purposes to be under Article 227 of the Constitution. Whether the learned Single Judge has exercised the jurisdiction under Article 226 or under Article 227 or both, needless to emphasise, would depend upon various aspects that have been emphasized in the aforestated authorities of this Court. There can be orders passed by the learned Single Judge which can be construed as an order under both the articles in a composite manner, for they can co-exist, coincide and imbricate. We reiterate it would depend upon the nature, contour and character of the order and it will be the obligation of the Division Bench hearing the letters patent appeal to discern and decide whether the order has been passed by the learned Single
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Judge in exercise of jurisdiction under Article 226 or 227 of the Constitution or both. The Division Bench would also be required to scrutinize whether the facts of the case justify the assertions made in the petition to invoke the jurisdiction under both the articles and the relief prayed on that foundation. Be it stated, one of the conclusions recorded by the High Court in the impugned judgment pertains to demand and payment of court fees. We do not intend to comment on the same as that would depend upon the rules framed by the High Court."
12. A Division Bench of this Court in a judgment reported as 2008 (1) MPHT 181 - Kanchhedi Lal Vs. Presiding Officer and another held that an order passed by the Labour Court in violation of principles of natural justice can be interfered with in writ petition under Article 226 of the Constitution of India and intra Court appeal would be maintainable.
The Court held as under :-
"17..............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."
13. The aforesaid judgment of this Court was not brought to the
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notice of the Division Bench in a judgment reported as 2016 (1) MPLJ 643 - Superintendent, Rajmata Vijaya Raje Scindia Regional Agricultural Research Station, Ujjain Vs. Hussaini Bee W/o Kalluji.
The Division Bench, considering many judgments of the Supreme Court held that the writ appeal is not maintainable against an order passed by the learned Single Bench in writ petition directed against an award of the Labour Court as such order is an order under Article 227 of the Constitution. The Division Bench held as under :-
"14. This Court however, finds that the writ appeal is not maintainable although the writ petition was filed Under Article 226 of the Constitution of India. The case was covered under head note III and head note VI of the case of Jogendrasinghji Vijaysinghji (supra) whereby the Apex Court held that the High Court was required to ascertain whether facts justify assertions made in writ petition to invoke jurisdiction under Article 227 or Article 226 or under both/whether Single Judge exercised jurisdiction under Article 227 or Article 226 or under both having regard to nature, contour and character of his order. And considering the above, we find that this Court was of the considered view that the Writ Court as well as the Supervisory Board have both exercised the powers under Article 227 in their supervisory jurisdiction and a writ of certiorari cannot be issued.
15. In the case of Radhey Shyam and another Vs. Chhabi Nath and others - (2009) 5 SCC 616 the Apex Court held that "judicial orders passed by Civil Court can be examined and then corrected/reversed by a writ of certiorari and the Court had held that under Article 227 of the Constitution of India, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to very sparingly exercised to keep tribunals and courts within the bounds of their
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authority. Under Article 227, orders of both civil and criminal Courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law." Then in the instant case we find that such is not the case and recently this Court under similar circumstances in the matter of Smt. Hansa Devi and another Vs. Chandar Singh and others in Writ Appeal No.691/2014 on 05.02.2015 held that when it is clear power of superintendence has been exercised under Article 227 of the Constitution of India, the writ appeal cannot be entertained. And in the present case also, we find that the Writ Court has exercised his power of superintendence under Article 227 of the Constitution of India, when it has considered the findings of the facts arrived by the Collector and the Board of Revenue."
14. We find that the Division Bench has not applied the principles laid down in the case of Jogendrasinhji Vijay Singhji (supra) in a correct perspective. The Supreme Court held in Paragraph No.30, that maintainability of Letters Patent Appeal would depend upon pleadings in the writ petition nature and character of the order passed by the learned Single Judge, the type of directions issued regard being had to the jurisdictional perspectives in the constitutional context. The only exclusive bar was in respect of an order passed by the Judicial Court which could be challenged only under Article 227 of the Constitution of India. Therefore, in terms of Jogendrasinhji Vijay Singhji's case, it is a question of fact in each case as to whether intra Court appeal would be maintainable in respect of the orders passed by the judicial or quasi judicial Tribunals constituted under any Act could be challenged under Article 226 and/or
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under Article 227 or both.
15. A writ of certiorari is maintainable against any authority or body of persons constituted by law or having legal authority to adjudicate upon questions affecting the rights of a subject and enjoined with a duty to act judicially or quasi-judicially is amenable to the certiorari jurisdiction of the High Court. The writ of certiorari as delineated in Surya Dev Rai's case (supra) can be said to be exercised in the following instances:-
(1) Certiorari will be issued for correcting errors of jurisdiction;
(2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice;
(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous.
(4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision.
(5) The certiorari may be and is generally granted when a court has acted (i) without jurisdiction, or (ii) in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceedings or from the absence of some preliminary proceedings or the court itself
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may not have been legally constituted or suffering from certain disability by reason of extraneous circumstances.
(6) Certiorari may also issue if the court or tribunal though competent has acted in flagrant disregard of the rules or procedure or in violation of the principles of natural justice where no particular procedure is prescribed.
(7) An error in the decision or determination itself may also be amenable to a writ of certiorari subject to the following factors being available if the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law but a mere wrong decision is not amenable to a writ of certiorari."
16. Therefore, we find that an order of the Labour Court or an Industrial Tribunal is amenable to the writ of certiorari under Article 226 of the Constitution. In exercise of writ of certiorari, the High Court demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The Constitutional Bench judgment of the Hon'ble Supreme Court reported as T.C. Basappa v. T. Nagappa, AIR 1954 SC 440, held as under:-
"7..................The second essential feature of a writ of certiorari is that the control which is exercised through it over judicial or quasi-judicial tribunals or bodies is not in an appellate but supervisory capacity. In granting a writ of certiorari the superior court does not exercise the powers of an appellate tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The offending order or proceeding so to say is put out of the way as one which should not be used to the detriment of any person
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[Vide Per Lord Cairns in Walshall's Overseers v. London and North Western Railway Co., (1879) 4 AC 30, 39.]"
17. But issuance of the directions after setting aside an order passed in exercise of powers conferred under Article 226, is only under Article 227 of the Constitution. Therefore, the Court exercises composite jurisdiction which will make intra Court appeal maintainable. Thus the order passed by the Division Bench in Superintendent, Rajmata Vijaya Raje Scindia Regional Agricultural Research Station, Ujjain's Case (Supra) does not lay down correct principal of law and is thus overruled.
18. We may clarify that the orders passed by the Judicial Courts, subordinate to a High Court even in criminal matters when challenged in proceedings before the High Courts are only under Article 227 of the Constitution of India. Thus no intra court appeal would be maintainable against an order passed by the Learned Single Judge in proceedings arising out of an order passed by Judicial Courts, may be civil or criminal proceedings.
19. Since the question of law has been answered, the writ appeal be posted for hearing before an appropriate Bench as per roster.
(Hemant Gupta) (Smt. Anjuli Palo) (Vijay Kumar Shukla)
Chief Justice Judge Judge
Anchal