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2014 Supreme(Guj) 525
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VIJAY MANOHAR SAHAI, K.J.THAKER, JJ.
Divisional controller - appellant(s)
Versus
Chimanbhai jibhabhai brahmbhatt & 1 - respondent(s)
Letters patent appeal no. 331 of 2014, in special civil application no. 15439 of 2013 with civil application no. 2331 of 2014
Decided on: 10/04/2014
Advocate Appeared:
Mr hardik c rawal, advocate for the appellant(s) no. 1
Mr gk rathod, advocate for the respondent(s) no. 1
Mr mukesh h rathod, advocate for the respondent(s) no. 1
Maintainability of Letters Patent Appeal in cases under Article 227 of the Constitution of India
Headnote:
JUDGMENT - Letters Patent Appeal - Dismissal of Appeal as Not Maintainable
Fact of the Case:
The appellant challenged the judgment and order of the Industrial Tribunal, which was dismissed by the learned Single Judge. The appellant then filed a Letters Patent Appeal, which was dismissed as not maintainable based on the decision of a Full Bench of the Court.
Finding of the Court:
The Letters Patent Appeal was dismissed as not maintainable based on the Full Bench decision, without delving into the merits of the case. The dismissal of the appeal does not prevent the appellant from seeking appropriate remedy before the appropriate forum.
Issues: Challenge to the judgment and order of the Industrial Tribunal, maintainability of the Letters Patent Appeal
Ratio Decidendi: The Full Bench decision clarified the maintainability of Letters Patent Appeal in cases where the petition is under Article 227 of the Constitution of India and the essential conditions for issue of writ of certiorari are absent.
Final Decision: The Letters Patent Appeal was dismissed as not maintainable, but the dismissal does not prevent the appellant from seeking appropriate remedy before the appropriate forum.
VIJAY MANOHAR SAHAI
1. We have heard learned advocates appearing for the parties.
2. By way of the present Letters Patent Appeal, the appellant–original petitioner has challenged the judgment and order dated 8.10.2013 passed by the learned Single Judge in Special Civil Application No.15439 of 2013. Before the learned Single Judge, the award of the Industrial Tribunal was challenged. The learned Single Judge by its judgment has dismissed the writ petition.
3. In the writ petition, the appellant-original petitioner has challenged the judgment and award dated 30.04.2013, passed by the Industrial Tribunal, Nadiad in Reference (ITN) No.57 of 2011, whereby the punishment of imposition of three increments with future effect is set aside by the Tribunal.
4. Since, the learned Single Judge while dismissing the writ petition has not issued a writ of certiorari and the order impugned before the learned Single Judge was of the Industrial Tribunal and therefore, the decision of the Five Judges' Full Bench of this Court will apply to the facts of this case.
5. The Five Judges' Full Bench of this Court in the case of Gujarat State Road Transport Corporation v. Firoze M. Mogal and another, 2014 GLH 1 rendered in Letters Patent Appeal No.1149of2002,Dated:26.12.2013,has held as under :-
“(M)(x) If the Special Civil Application is described as one not only under Article 226 of the Constitution, but also under Article 227 of the Constitution of India and the Court or the Tribunal whose order is sought to be quashed, is not made a party, the application is not maintainable as one for the relief of certiorari in the absence of the concerned Tribunal or Court as party, but the same may be treated as one under Article 227 of the Constitution of India. If the Court or Tribunal is not impleaded as a party respondent in the main petition, then by merely impleading such court or tribunal for the first time in the Letters Patent Appeal will not change the nature and character of the proceedings before the learned Single Judge. By merely impleading such a Court or Tribunal for the first time in the LPA, the appeal could not be said to be maintainable, if the proceedings before the learned Single Judge remained in the nature of supervisory proceedings under Article 227 of the Constitution.
xi) If the learned Single Judge, in exercise of a purported power under Article 227 of the Constitution sets aside the order of Tribunal or Court below and at the same time, the essential conditions for issue of writ of certiorari are absent, no appeal will be maintainable against such order in view of the specific bar created under Clause 15 of the Letters Patent itself and such an order can be cha enged only by way of a Special Leave Petition before the Supreme Court.
To put it very explicitly, take a case where a petition is only under Article 227 of the Constitution of India, invoking superintending powers of the High Court and not under Article 226 of the Constitution of India. After examining the matter, if the court finds substance in the petition and sets aside the order of an authority, court or a tribunal, then against such an order, an LPA would not lie on the argument that since the court has set aside the order it has decided the matter on merits having found substance in the same.
To put it in other words, once a petition is under Article 227 of the Constitution of India, and while entertaining such a petition under Article 227 of the Constitution of India, if the court allows a petition by setting aside the order impugned, then against such an order no LPA would lie.
xii) If a learned Single Judge, in exercise of a purported power under Article 227 of the Constitution modifies the order of Tribunal/Authority or Court below and thereby partly allows a petition to a certain extent, then in such circumstances, it could not be said that the Court exercised its certiorari jurisdiction and no appeal will be maintainable against such order in view of the sp
