D.H.WAGHELA

1. Upon this appeal being listed for hearing with several such appeals, nearly 200 other appeals were also caused to be listed in view of common issue of maintainability of such appeals having arisen in light of recent Division Bench decision of this Court in Gustadji Dhanjisha Buhariwala v. Nevil Bamansha Buhariwala [2011(2) G.L.H. 147]. That decision was rendered in the background of facts wherein the order of learned Single Judge in the matter arising from suit proceedings pending in a Civil Court was sought to be challenged before the Division Bench under Clause 15 of the Letters Patent. The Division Bench has taken the view that the petition before learned Single Judge was substantially under Article 227 of the Constitution of India and supervisory jurisdiction of the High Court was invoked. The group of appeals now listed for hearing before this Court arises from decisions of learned Single Judges in the petitions wherein awards and orders of Labour Courts and Industrial Tribunals are called into question. The difference in the factual background, however, would pale into insignificance in view of specific ratio and findings recorded in the erudite and elaborate judgment in Gustadji (supra). Therefore, all the advocates appearing in the appeals listed together before this Court were permitted to argue on the preliminary issue as to whether the appeals were required to be entertained on merits or whether they were liable to be dismissed only on the ground of their non-maintainability. Learned counsel Mr.Asim Pandya, learned Senior Advocate Mr.K.M. Patel, learned counsel Mr.Hasit Joshi, Mr.G.M. Joshi, Ms.Vandana Bhatt, Mr.S.J. Gaekwad as well as learned Government Pleader Mr.P.K. Jani were heard; and former learned Advocate General and Senior Advocate Mr.S.N. Shelat, was requested to assist the Court as an amicus curiae. In view of the opinion recorded herein, this order is made only in the present appeal.

2. The issue of maintainability of the appeal has arisen on account of the following observations, inter alia, in Gustadji(supra) :

“56. The sum and substance of our discussion and findings recorded in the judgment can be now summarized as under :

(1) ... ... ...

(2) ... ... ...

(3) ... ... ...

(4) ... ... ...

(5) Where law provides the provision of Appeal and the same is decided by the judicial authority or where there is scope for judicial scrutiny by the subordinate at the top, the petition challenging such order would be covered under Article-227 of the Constitution.

(6) Where a petition is filed, both under Articles-226 and 227 of the Constitution, it will have to be considered whether the point raised in the petition arose for adjudication for the first time before the High court. If the challenge in the petition is with respect to the point already adjudicated upon by the subordinate court, then it will have to be held that the supervisory jurisdiction of the High court was invoked and not the original.

(7) The cause title, averments and the prayers in the petition can be taken into account while deciding whether the petition is one under Article-226 and 227 of the Constitution. This has to be determined on the facts of each case having regard to -

i. nature and the jurisdiction invoked;

ii. the averments contained in the petition;

iii. the reliefs sought; and

iv. most importantly, the true nature of the principal order passed by the learned Single Judge. The true nature of the order passed by the learned Single Judge has to be determined on the basis of the character of the relief granted. By merely labeling the petition under Article-226 and by praying for Writ of Certiorari it cannot be said that the facts justify the party to invoke the extraordinary jurisdiction of the High court under Article-226 of the Constitution of India.

(8) ... ... ...

(9) Writ Petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agency or a State or ins