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Gujarat High Court
Hon’ble Mr. Chief Justice Bhaskar Bhattacharya & Hon’ble Mr. Justice J.B. Pardiwala
Deputy Executive Engineer
Versus
Rasul Mullubhai
Misc. Civil Application (for Review) No. 2304 of 20131—Decided on 30/11/2013
Industrial Disputes Act, 1947(Central Act 14 of 1947) — Sections 25-G and 25-H — Letters Patent Appeals — Clause 15 — Constitution of India, 1950 — Articles 226 and 227 — Review — Order in letters Patent that appeal is not maintainable because order by Single Judge was passed under Article 227 of Constitution — Court held that although Special Civil Application were described as ones both under Article 226 and 227 of Constitution but Labour Court whose award was sought to be quashed was not made party and in such circumstances Single Judge order was not under Article 226 as mentioned by him but under Article 227 of the Constitution — It is true that initially out of ten matters in nine Labour Court was made party but subsequently on prayer of applicant same was deleted — The contention of Learned Counsel for petitioners that name of Labour Court was deleted on the instructions of the Court is not sustainable and not born out from the record — Besides suit fact is not mentioned in memorandum of appeal — The order of Single Judge thus being under Article 227 of Constitution, LPA was not maintainable and there is not scope for review of the order.
Held :
While dismissing the Letters Patent Appeals, Court took specific note of the fact that although the Special Civil Applications were described as ones, both under Articles 226 and 227 of the Constitution of India, the Labour Court whose award was sought to be quashed was not made a party and in such circumstances, the learned Single Judge, as it appeared from the order impugned, after taking into consideration the entire materials on record, refused to interfere with the award passed by the Labour Court. [Para 3.6]
Court does not find any order passed by the learned Single Judge directing deletion of the Labour Court. It appears that the learned Advocate for the applicant himself deleted the Labour Court from the cause title by making endorsement of such deletion in the cause title of the Special Civil Applications. Such allegation has not even been made in the memorandum of the Letters Patent Appeal out of which the present applications of review have been filed. Therefore, in these applications for review of our order holding the Letters Patent Appeal as not maintainable, there is no scope of entering in to such disputed question not borne out by the record of the case. Even if a court orally directs the petitioner to delete the name of a party which the petitioner considers to be necessary in order to get the relief claimed, it is the duty of the learned counsel for the petitioner to insist on passing specific order to that effect so that the said order can be challenged before the higher forum, but instead of such submission, if the learned counsel complies with such alleged oral direction by deleting the party even without mentioning that such deletion is made pursuant to the oral order of the court and thereafter, participate in the proceedings where the proceedings are disposed of on merit, in an application for review of the order of the appeal court holding the appeal as not maintainable, such point cannot be taken when even in the memorandum of the appeal, no such point was taken. [Para 10]
Law Laid Down :
Even if in spite of exercising jurisdiction under Article 227 of the Constitution of India the Learned Judge mentioned Article 226 order for that reason will not become appealable.
Mr. Bhaskar Bhattacharya, CJ.—All these Misc. Civil Applications for review of a common order dated 22nd July, 2013 passed by this Bench were taken up together as similar grounds have been taken in all these applications for review.
2. It appears that several Special Civil Applications, which were described as ones, both under Articles 226 and 227 of the Constitution of India, were disposed of by a learned Single Judge by order dated 27th July 2010 wherein the respective petitioners prayed for quashing and setting aside of the impugned awards passed by the Labour Court by which the said court directed the employer-petitioner to reinstate the respondent-workmen in service.
3. The facts of these cases were that the respondent-workmen at the relevant time were working as rojamdars under the petitioner. The petitioner, without assigning any reason and without giving any notice or notice-pay, terminated the services of the respondent-workmen. Being aggrieved by the said order of termination, the respondent-workmen raised an industrial dispute which was, ultimately, referred to the Labour Court for adjudication. In the Labour Court, both the parties adduced evidence and after appreciating the materials placed before it, the Labour Court allowed the reference with the direction for reinstatement.
3.1 Being dissatisfied, the employer filed several Special Civil Applications contending that the workmen did not produce any documentary evidence on record to prove that they had completed 240 days. According to the petitioner, the respondents were appointed as nominal muster roll employees and were given work as and when the same was available.
3.2 The learned counsel appearing on behalf of the workmen, on the other hand, supported the award of the Labour Court and submitted that the Labour Court had considered all the facts and circumstances of the case and recorded a clear finding that there was violation of the provisions of Sections 25G and 25H of the Industrial Disputes Act and, therefore, the award should not be interfered with.
3.3 The learned Single Judge took into consideration the fact that there was clear violation of the provisions of Sections 25G and 25H of the Industrial Disputes Act and was of the opinion that the award impugned was a correct award and that the Labour Court discussed the entire evidence in detail. His Lordship found that while arriving at its conclusion, the Labour Court committed no illegality which warranted any interference at the instance of the High Court “under Article 226 of the Constitution of India”.
3.4 It may be mentioned here that in some of the matters, the Labour Court concerned was not made a party and in some other matters, although the Labour Court was made a party, subsequently, the learned Advocate for the employer deleted the Labour Court from the cause-title by making specific endorsement.
3.5 Being dissatisfied with the decision of the learned Single Judge dismissing those Special Civil Applications, the applicant before us preferred several Letters Patent Appeals which were taken up together and by the common order sought to be reviewed in these applications, this Bench dismissed those Letters Patent Appeals.
3.6 While dismissing the Letters Patent Appeals, we took specific note of the fact that although the Special Civil Applications were described as ones, both under Articles 226 and 227 of the Constitution of India, the Labour Court whose award was sought to be quashed was not made a party and in such circumstances, the learned Single Judge, as it appeared from the order impugned, after taking into consideration the entire materials on record, refused to interfere with the award passed by the Labour Court. We further pointed out that in view of the four-judge-bench judgment of the Supreme Court in the case of Udit Narain Singh Malpaharia vs. Additional Member Board of Revenue, Bihar and another, reported in AIR 1963 SC 786, in the absence of the Court or Tribunal whose award is soug
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