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1 - 9 of 9 (0.24 seconds)Article 227 in Constitution of India [Constitution]
Union Of India And Ors vs Mohd. Ramzan Khan on 20 November, 1990
7. On the other hand, it was contended on behalf of the respondent that by giving the letter of apology and accepting the contract appointment for a period of two years, the petitioner had acquiesced, waived and abandoned any remedy against the order of removal. It was also submitted that the conduct Rules were not applicable, but only the Standing Orders were applicable as the petitioner was taken to be a workman, and the procedure followed was strictly in accordance with those standing orders and they did not provide for giving a copy of the enquiry report or opportunity before imposing the punishment. Thirdly, it was submitted that the petitioner had filed a writ petition earlier with regard to the same matter and hence, this writ petition was not maintainable. It was pointed out that the decision of the Supreme Court regarding the opportunity before punishment, in Union of India v. Mohd. Ramzan Khan, was applicable to orders of punsihment passed after 20-11-1990, and as the order of removal in this case was made before that date, the petitioner was not entitled to the benefit of the case.
Rama Kant Misra vs State Of U.P. And Others on 21 October, 1982
There was again a dispute about the undertaking to be given and it was then resolved by the court by order dated 20-9-1991 in Contempt Case No. 189 of 1991, and thereafter the petitioner joined the service. The review petition of the petitioner was subsequently rejected by order dated 21-2-1991. Though petitions dated 25-7-1990 and 6-9-1990 pleaded for reinstatement on the basis of 23 years of spotless service not a word is mentioned in the order of review regarding his past service. The learned counsel for the petitioner has drawn our attention to the decision of the Supreme Court in Rama Kant Misra v. State of U.P., wherein it was held that indiscreet, improper and abusive language on one occasion unconnected with any subsequent positive action and not preceded by any blameworthy conduct during fourteen years of service, would not permit an extreme penalty of dismissal from service. It is apparent from a perusal of record in this case also that the punishment given was grossly disproportionate to the misconduct alleged which was itself mitigated by the condition of health of the petitioner. In this background, we are unable to accept the contention of the respondents that the present petition is not maintainable because of the filing of the earlier petition or that the petitioner had abandoned his remedy by accepting the contract employment. The earlier petition was dismissed on the ground that the review was pending and therefore was considered premature. The contract employment was permitted by this Court as an interim measure pending consideration of the review petition. Neither of these could be considered to have the effect of cancelling the right of the petitioner to question the order of removal. In fact, by the offer of contract employment the petitioner was lulled and gulled.
Umaji Keshao Meshram & Ors vs Radhikabai W/O Anandrao Banapurkar & ... on 14 March, 1986
The analagous provision in the Appellate side Rules is Rule 1 which lists out the cases to be heard by a single Judge and provides that that Judge may at any time adjourn it for hearing and determination by a bench of two Judges. Now, Clause 15 of the Letters Patent as applied to this court states that an appeal shall lie to the said High Court from a judgment of one Judge of the High Court made under the original jurisdiction. But there is no provision for an appeal against an order of a single Judge in a petition under Article 227. It is in this context that the Supreme Court observed in Umaji v. Radhikabhai, that where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution and the party chooses to file his application under both these Articles, 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. The learned Counsel for the respondents relies heavily on this observation to contend that by the Bench itself hearing the writ petition, the valuable right of appeal would be lost. But, that was a case where there is choice of remedies and the Supreme Court, recommended the adoption of a fair procedure which will ensure the right of appeal. In the present case, we are concerned with a completely different situation. Rule 14(b) of the Writ Proceedings Rules provides that the learned single Judge may, if he thinks fit, refer a writ petition to be heard by a Division Bench. If he does so, the respondents cannot complain of the loss of the right of appeal because that will be in exercise of the power specifically conferred by the rule. The only objection of the respondents is that that power cannot be exercised by the Bench but it can only be exercised by the learned single Judge. There are two reasons why this objection cannot stand scrutiny. Under Article 36 of the Letters Patent, any function which is directed to be performed by the High Court in the exercise of its original or appellate jurisdiction may be performed by any Judge or by any Division Court thereof and, therefore, the powers of the Judges of the Court are co-extensive and when a power can be exercised by one Judge, there is no reason why it cannot be exercised by two Judges sitting together in the absence of a specific statutory provision forbidding such a course of action.
Article 14 in Constitution of India [Constitution]
Article 36 in Constitution of India [Constitution]
Central Inland Water ... vs Brojo Nath Ganguly & Anr on 6 April, 1986
14. The learned Counsel for the respondents submitted that the prayer in the ealrier Writ Petition No. 15280 of 1993 was to set aside the removal order dated 6-6-1990 as confirmed by the appellate order dated 18-7-1990 and to reinstate the petitioner, and when that Writ Petition was dismissed it must be taken that he had waived the right to question that order and it also operated as res judicata. As we already noted above, this Court by order dated 9-11-1990 took into account the fact that the review petition was pending and directed that the Chairman-cum-Managing Director may pass appropriate orders on that application. Irrespective of the above direction, the petitioner was allowed to accept the offer of contract employment. In other words, that petition was dismissed as premature and the contract of employment was given as an interim measure of relief. The Supreme Court has held in the case of Central Inland Water Transport Corporation Limited v. Brojo Nath, that a contract employment is opposed to public policy in the case of a State undertaking. In the light of that decision, it is obvious that this offer of contract employment was an instance of superior bargaining power and fundamentally unfair. The mode of making effective provision to secure right to work cannot be by giving employment to a person and then without any reason throwing him out of employment and the action of a State agency in those terms is violative of Article 14 and opposed to Directive Principles of State Policy as held by the Supreme Court . It follows that the acceptance of such offer of contract employment cannot amount to a waiver of the right to appeal against an unfair order of dismissal made earlier. Since the earlier writ petition was rejected practically as premature, the review petition being under consideration, the petitioner was entitled to come to this court with a fresh petition after the rejection of that review petition and this petition cannot be precluded by any principle of res judicata or waiver on that account.
Mahadeo (Prosad) Saraf vs S.K. Srivastava And Ors. on 12 September, 1962
Secondly, an appeal is nothing but a continuation of the original proceedings, (see Mahadeo v. S.K. Srivastava . When the single Judge was hearing the W.P.M.P. he could have referred the main petition itself to the Division Bench for hearing. The Bench which hears an appeal against the order made in W.P.M.P., is exercising the same power which the single Judge excercises in hearing the W.P.M.P., and would therefore, retain the same power which he had to make reference of the main petition itself to a Division Bench. One of the conclusions that we have arrived at in deciding the appeal against the order of learned single Judge in W.P.M.P. is that justice cannot be rendered without hearing the writ petition and in order to say that the petition is effectively and properly disposed of, it would be a fit case to be heard by a bench of two Judges. This decision is taken in exercise of the judicial discretion and accordingly. The power reserved for a single Judge under Rule 14(b) of The Writ Proceedings Rules, 1977 enures to the bench of two Judges to hear the writ appeal against the interim direction. Therefore, in exercise of such judicial discretion, we over-rule the preliminary objection of the respondents and decided to hear the main writ petition itself. It is also to be noted that unlike in the case of an application under Article 227, which has to be sent to the bench only by the learned Chief Justice, there is no provision in the rules relating to petitions under Article 226, that for the bench hearing the appeal against an order of the learned Single Judge in W.P.M.P. to hear the main writ petition, it has to be sent to the bench by the learned Chief Justice.
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