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2011 (3) ALL MR 564
High Court of Judicature at Bombay
THE HONOURABLE DR. JUSTICE D.Y. CHANDRACHUD, THE HONOURABLE MR. JUSTICE ANOOP V. MOHTA & THE HONOURABLE MRS. JUSTICE ROSHAN DALVI
M/s.Advani Oerlikon Ltd.
Versus
Machindra Govind Makasare & Others
LETTERS PATENT APPEAL NO.261 OF 2005 IN WRIT PETITION NO.1743 OF 2005 WITH LPA NOS.26 OF 2011 & 304 TO 308 OF 2010
Decided on : 17-03-2011
Constitution of India - Article 226-Correction of jurisdictional errors-Availability of writ of certiorari under Article 226-Errors resulting in miscarriage of justice committed by Subordinate Courts/Tribunals-can be corrected by High Court-Writ of certiorari can be issued under Article 226.-The writ of certiorari can be issued under Article 226 of the Constitution where the subordinate Court or Tribunal commits an error of jurisdiction. Where the subordinate Court or Tribunal acts without jurisdiction or in excess of it or fails to exercise jurisdiction, that error of jurisdiction can be corrected. Moreover when the Court or tribunal has acted illegally or improperly such as in breach of the principles of natural justice the writ of certiorari is available under Article 226.
Constitution of India - Article 226-Correction of jurisdictional error-Remedy under Article 226- Error resulted in miscarriage of justice committed by Authorities, Subordinate to High Court-A party cannot be deprived of his right to invoke constitutional remedy under Article 226 of Constitution.-Where the facts justify the invocation of either Article 226 or Article 227 of the Constitution to correct a jurisdictional error or an error resulting in a miscarriage of justice committed by authorities subordinate to thus Court, there is no reason or jurisdiction to deprive a party of the right to invoke the constitutional remedy under Article 226 of the Constitution.
Constitution of India - Article 226-Correction of jurisdictional errors-Permissibility of- Errors resulting in miscarriage of justice committed by subordinate authority- Can be corrected by High Court by invoking Article 226 of Constitution.-It is not a correct proposition in law that this Court cannot correct jurisdictional errors or errors resulting in miscarriage of justice committed by authorities which are subordinate to it by invoking powers under Article 226 of the Constitution.
Constitution of India - Articles 226 and 227-Writ petition under-Powers of Court-Cause title, averment and prayers in petition-Can be taken into account by Court, while deciding whether petition is under Article 226 or 227 of Constitution.-The cause title, the averment and prayers in the petition can be taken into account while deciding whether the petition is one under Article 226 and/or 227 of the Constitution.
Constitution of India - Articles 226 and 227-Letters Patent (Bom.), Clause 15-Correction of jurisdictional error-Petition filed under Articles 226 and 227-Facts justify its filing-Right under clause 15-Errors of subordinate Courts and Tribunals can also be corrected by filing an appeal under clause 15-A party has right of appeal under clause 15.-Where a petition is filed under Articles 226 and 227 of the Constitution and the facts justify the filing of such a petition, it is not lawful for the Court to hold that jurisdictional errors or errors resulting in a miscarriage of justice committed by the subordinate Courts or Tribunals can be corrected only by exercising powers under Article 227 (and that the mentioning of Article 226 is redundant), thus depriving the party of a right of appeal under Clause 15 of the Letters Patent.
Constitution of India - Articles 226 and 227-Letters Patent (Bom.), Clause 15-Writ petition under Articles 226 and 227-Facts justify filing of its-Court, cannot hold that Article 226 need not to be invoked as Article 227 clothed with power to grant same relief.-When a petition is filed under Articles 226 and 227 of the Constitution and the facts justify the filing of such a petition, it is not open to the Court to hold that Article 226 need not have been invoked, on the ground that Article 227 is clothed with the power to grant the same relief thus depriving the party of a right to elect or choose a remedy.
Constitution of India - Articles 226 and 227-Letters Patent (Bom.), Clause 15-Writ petition filed under Article 227-Judgment rendered in favour of petitioner-Recourse to an appeal under Clause 15-Not barred to respondent before single Judge.-In a situation where a petition is filed under Article 227 of the Constitution and judgment is rendered in favour of the petitioner, recourse to an appeal under Clause 15 of the Letters Patent is not barred to the respondent before the single Judge merely on the ground that the petition was under Article 227. In State of Madhya Pradesh v. Visan Kumar Shiv Charanlal, 2009 All SCR 15, (supra), the appeal before the Division Bench was filed by the respondents to the proceedings before the single Judge in a petition which had been instituted under Article 227. Accepting the submission that a nomenclature is of no consequence and it is the nature of the relief sought and the controversy involved which determine which Article is applicable, the Supreme Court held that the appeal before the Division Bench was maintainable. A similar position arose in the decision of the Supreme Court in M.M.T.C. v. Commissioner of Commercial Tax, (supra). The Division Bench of the High Court had held that since the petition before the single Judge was under Article 226 of the Constitution, an appeal at the behest of the respondent to the petition was to maintainable. The Supreme Court held that the High Court was not justified in holding that the Letters Patent Appeal was not maintainable since the High Court did not consider the nature of the controversy and the prayers involved in the Writ Petition.
Constitution of India - Articles 226 and 227-Letters Patent (Bom.), Clause 15-Writ petitions under-Power of Court-Petition filed under Articles 226 or 227 of Constitution or appeal under Clause 15-Court can determine whether facts justify party in filing petition under Article 226 or 227.-It is open to the Court while dealing with a petition filed under Articles 226 and/or 227 of the Constitution or a Letters Patent Appeal under Clause 15 of the Letters Patent arising from the judgment in such a petition to determine whether the facts justify the party in filing the petition under Article 226 and/or 227 of the Constitution.
DR. D.Y. CHANDRACHUD, J.
The issue whether an appeal can lie under clause 15 of the Letters Patent against a decision of a Single Judge rendered in a Petition invoking Articles 226 and/or 227 of the Constitution has defied conclusive judicial pronouncement. In a sense, this is reflective as much of the ingenuity of the Bar as it is of the expansive constitutional philosophy of vesting jurisdiction in the High Court to issue writs that remedy injustice. The ruling, which this Full Bench is called upon to render, is guided by pronouncements of the Supreme Court, of Special Benches as well as Full Benches of this Court. That the question of the maintainability of an appeal under Clause 15 of the Letters Patent in such cases continues to arise with such persistence provides a sobering reflection of the limits of the law in providing black letter solutions. We must recognise that the broad and wide categories that the founding fathers of the Constitution created while conferring jurisdiction on constitutional courts were crafted with a sense of vision and purpose. Conceptual openness is a powerful weapon against injustice. The width and amplitude of constitutional provisions ought not then to be constricted into narrow fragments. A provision which is intended to reach out to injustice must be construed in the same liberal spirit with which it was engrafted into the Constitution. We begin this judgment, on a reference to the Full Bench, with the prefatory note that as in other cases involving legal interpretation, straitjackets are unwise. This Court in answering the questions on which the reference has been made would indicate the broad principles, leaving it as we must, to the robust sense of justice of the Judges who occupy this Court to consider each case upon its facts while determining questions of maintainability. The quest for certainty in the law is one, but only one of the ideals of a system founded on the rule of law. Yet the law without justice is like the grain bereft of its fibre. For it is justice which like the fibre of the grain provides the texture that nourishes and sustains. Constitutional interpretation must likewise nourish and sustain even as it seeks to remedy injustice. As a matter of first principle, a constitutional provision which is a powerful instrument to combat injustice ought not to be constricted to artificial categories. The Founding Fathers did not do so. Generations of judges did not dilute the broad expanse of those provisions. Nor should we.
2. The reference before the Full Bench has been made on 13 February 2006 by a Division Bench consisting of Hon'ble Mrs.Justice Ranjana Desai and Hon'ble Mr.Justice D.B. Bhosale. The reason for the reference is a discordant note struck by a Division Bench consisting of V.G. Palshikar and D.B. Bhosale, JJ. In a judgment dated 19 September 2005 in National Textile Corporation (SM) Ltd. vs. Devraj Chandrabali Pai (Letters Patent Appeal 41 of 2005 in Writ Petition 5180 of 1996). In the case before the Division Bench, a workman who was chargesheeted by the employer for misconduct was terminated from service upon enquiry. The Labour Court on an application under Section 78 of the Bombay Industrial Relations Act, 1946, came to the conclusion that the punishment of dismissal was shockingly disproportionate to the misconduct proved and ordered reinstatement with continuity of service and full back wages. In an appeal by the employer, the Industrial Court set aside the order of the Labour Court. In a challenge by the workman to the order of the Industrial Court, in a petition which invoked Articles 226 and 227 of the Constitution, a Learned Single Judge of this Court delivered judgment which was questioned in a Letters Patent Appeal. The Division Bench dismissed the appeal on the ground of maintainability and held that “the mere mention of Article 226 will not make an appeal maintainable under clause 15, if in pith and substance what was sought to be exerc
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