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2011 DIGILAW 567 (GUJ)

BHAGYODAYA CO-OPERATIVE BANK LTD. v. NATVARLAL K. PATEL

2011-07-28

ANANT S.DAVE, J.B.PARDIWALA, SUDHANSU JYOTI MUKHOPADHAYA

body2011
JUDGMENT S. J. MUKHOPADHAYA, C.J. The short question involved in this case is- "Whether while challenging the award passed by the Labour Court or the Industrial Court or the Industrial Tribunal, particularly in a case where no specific relief is sought for against the concerned Labour Court/ Industrial Court/Industrial Tribunal, such Labour Court/Industrial Court/ Industrial Tribunal is required to be joined as party respondent." 2. The learned Single Judge observed that there are two conflicting decisions rendered by a Division Bench of this Court in the case of Steel Authority of India Ltd. v. Gujarat Mazdoor Panchayat, reported in 2004 (1) GLR 729 and in the case of Gujarat State Road Transport Corporation v. Pravin Joshi, reported in 2004 (4) GLR 3379. 3. When the matter was noticed by the Division Bench while referring to different decisions, the Division Bench came to a prima facie conclusion that one or the other judgment may hold good at appropriate case, which depends upon the nature of the petition i.e. whether the petition was filed under Art. 226 of the Constitution of India or under Art. 227 of the Constitution of India or both under Art. 226 and Art. 227 of the Constitution of India. However, for proper appreciation and in view of the observations of the learned Single Judge, the matter has been referred to Larger Bench for hearing. 4. Writ petition, Special Civil Application No. 12382 of 2010 has been preferred by the Bhagyodaya Co-operative Bank Ltd. under Art. 226 of the Constitution of India to set aside the order and judgment passed by the Industrial Court dated 11-5-2010 in Appeal (I.C.) No. 115 of 2001 confirming the judgment and order passed by the Labour Court, Ahmedabad in T. Application No. 779 of 1983. Both the Industrial Court, Ahmedabad and Labour Court, Ahmedabad have been impleaded as party respondent Nos. 2 and 3 respectively to the writ petition. 5. The other writ petition, Special Civil Application No. 15308 of 2010 has been preferred by Natvar K. Patel under Art. 226 of the Constitution of India. The Bhagyodaya Co-operative Bank Ltd. i.e. the petitioner in the other case has been impleaded as party-respondent. 2 and 3 respectively to the writ petition. 5. The other writ petition, Special Civil Application No. 15308 of 2010 has been preferred by Natvar K. Patel under Art. 226 of the Constitution of India. The Bhagyodaya Co-operative Bank Ltd. i.e. the petitioner in the other case has been impleaded as party-respondent. Neither the Industrial Court nor Labour Court, Ahmedabad has been impleaded as party, though prayer has been made to set aside the award dated 11-5-2010 passed by the learned Judge, Industrial Court, Ahmedabad in Appeal (I.C.) No. 115 of 2001. 6. We have heard the learned Counsel for the parties only on the question of maintainability of one or the other petition in absence of the Industrial Court, Ahmedabad or Labour Court, Ahmedabad. We have also noticed that in both the cases the judgment and order dated 11-5-2010 of the Industrial Court in Appeal (I.C.) No. 115 of 2001 has been challenged. In one of the writ petitions, the Industrial Court and Labour Court both have been impleaded as party-respondents. The question will also arise whether analogous case can be dismissed on the ground of non-joinder of party, when the Industrial Court, Ahmedabad and Labour Court, Ahmedabad being party-respondents to the analogous case preferred against the same very judgment. 7. Let us refer to different decisions rendered by the Courts from time to time including this Court and the Supreme Court, as brought to our notice by the learned Counsel for the parties. 8. Similar issue came up for consideration before a Division Bench of this Court in the case of Gopichand Khoobchand Shanna v. Works Manager. Loco Shops, Western Railway, reported in AIR 1967 Guj. 27 : [ 1966 GLR 291 ], Hon'ble Mr. Justice P. N. Bhagwati, as he then was, speaking on behalf of the Division Bench made the following observations : "3. ....Now, there can be no doubt that in a petition for relief under Art. 226, the Tribunal whose order is impugned in the petition must be made a party to the petition so that the writ sought from the Court can go against the Tribunal; but if the petition is for relief under Art. 227, it is well settled that the Tribunal whose order is impugned in the petition need not be made a party to the petition. The reason is that by entertaining a petition under Art. 227 the High Court does not seek to exercise jurisdiction to issue any high prerogative writ; the writ jurisdiction which the High Court exercises under Art. 227 is of superintendence - a jurisdiction somewhat analogous to the revisional jurisdiction which the High Courts have under diverse statutes and just as in an application for revision, it is not necessary to make the Court whose order is sought to be revised a party to the application, so also in a petition invoking the jurisdiction of the High Court under Art. 227, the Tribunal whose order is sought to be challenged is not a necessary party (See the decision dated 8th May, 1964 given by the Supreme Court in Muhammad Enamual Haque v. Muhammad J. Hussain, Civil Application No. 985 of 1963)." 9. The decision of the Supreme Court in Muhammad Enamual Haque v. Muhammad J. Hussain, Civil Application No. 985 of 1963 has been noticed by the Division Bench in the aforesaid case of Gopichand Khoobchand Sharma v. Works Manager, Loco Shops, Western Railway, reported in AIR 1967 Guj 27 : [ 1966 GLR 291 ], so also noticed by Kerala High Court in the case of Puzhakkal Edam alias Puthen Edon v. Kunchappan, reported in AIR 1974 Kerala 210. Referring to the Division Bench decision of this Court in the case of Gopichand Khoobchand Sharma v. Works Manager, Loco Shops, Western Railway (supra), the Kerala High Court noticed the aforesaid Supreme Court decision in Muhammad Enamual Haque v. Muhammad J. Hussain, Civil Application No. 985 of 1963 and observed as follows : "In support of the above statement, the learned Judge has relied on a decision of the Supreme Court in Muhammad EnamuaL Haque v. Muhammad, J. Hussain, Civil Application No. 985 of 1963 decided on 5-5-1964 (SC). This decision does not seem to have been reported; and I have not been able to get a copy of it. But this decision has been noted at page 142 of Volume VI of the Supreme Court Notes by R. Gopalkrishnan. This decision does not seem to have been reported; and I have not been able to get a copy of it. But this decision has been noted at page 142 of Volume VI of the Supreme Court Notes by R. Gopalkrishnan. The relevant part of the note reads,- "There is neither practice nor binding authority to support the contention raised by the Counsel for the respondent that in a proceeding for an order under Art. 227 of the Constitution, it is necessary to implead the Court or Tribunal against the order for which the proceeding is initiated by the High Court. By entertaining a petition under Art. 227, the High Court does not seek to exercise jurisdiction to issue any high prerogative writ jurisdiction - which the High Court exercises under Art. 227 is of superintendence - a jurisdiction some what analogous to the revisional jurisdiction which the High Courts for a long time past have been invested under diverse statutes. To a proceeding invoking jurisdiction of the High Court under Art. 227 of the Constitution, the Tribunal was not a necessary party, and in an appeal against the order passed in personam against the appellant in that proceeding, the Tribunal is not a necessary party." 10. The same issue again fell for consideration before the Division Bench of this Court in Steel Authority of India Ltd. v. Gujarat Mazdoor Panchayat, reported in 2004 (1) GLR 729 . In the said case, the Division Bench held as follows : "34. ....Here, in the instant case, the petitioner has not impleaded the Industrial Tribunal as one of the respondents in the petition nor claimed any relief as such against the Industrial Tribunal. This conduct on the part of the writ petitioner in not impleading the Industrial Tribunal as one of the respondents in the petition and in not claiming any specific relief against the Tribunal would indicate that the writ petitioner has chosen to approach the High Court under Art. 227 of the Constitution. Therefore, the documents produced by the writ petitioner along with the petition cannot be taken into consideration while answering the question posed for consideration. Further, what is claimed is writ of certiorari and the writ of certiorari means calling of record of subordinate authority and rendering decision by the High Court after considering the materials placed before the authority. Therefore, the documents produced by the writ petitioner along with the petition cannot be taken into consideration while answering the question posed for consideration. Further, what is claimed is writ of certiorari and the writ of certiorari means calling of record of subordinate authority and rendering decision by the High Court after considering the materials placed before the authority. The documents which are sought to be relied upon by the writ petitioner in the petition does not form part of record of the Tribunal. Under the circumstances, writ of certiorari cannot be issued on the basis of document sought to be produced and relied upon by the writ petitioner." 11. However, when similar issue fell for consideration before Division Bench in Gujarat State Road Transport Corporation v. Pravin Joshi, reported in 2004 (4) GLR 3379, the Division Bench observed as follows : "20. The next contention advanced by Mr. Desai, learned Advocate of the respondent, is that in a petition filed under Art. 226 of the Constitution, if a writ of certiorari is claimed, the Tribunal or the quasi-judicial authority is a necessary party and without joining them as a party, the petition is not competent. To canvass the said proposition, he has relied upon the judgment in the case of Udit Narain (supra). In Udit Narain's case (supra) the Supreme Court was called upon to decide as to who were the necessary and proper parties in a petition filed for a writ of certiorari. In that case, the person in whose favour the order was passed was not joined as a party. The Supreme Court in Para 7 of the said judgment while answering the said question has observed thus : "7. To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled : it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding." The Supreme Court in Para 12 of the said judgment further observed as under : "12. To summarise in a writ of certiorari not only the Tribunal or authority whose order is sought to be quashed but also parties in whose favour the said order is issued are necessary parties. But it is in the discretion of the Court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either suo motu or on the application of a party to the writ or an application filed at the instance of such proper party." 21. ……… 22. In a later decision of the Supreme Court in the case of Savitri Devi. v. District Judge, Gorakhpur, AIR 1999 SC 976 , the practice of impleading judicial officer disposing of civil proceedings as contesting respondent has been strongly deprecated by the Supreme Court and it was directed to stop the said practice as judicial officer cannot be equated to officials of Government. In Para 14 of the reported decision, the Supreme Court has made a weighty observation in this regard and it would be advantageous to quote the same in this judgment : "Before parting with this case, it is necessary for us to point out one aspect of the matter which is rather disturbing. In the writ petition filed in the High Court as well as the Special Leave Petition filed in this Court, the District Judge, Gorakhpur and the 4th Additional Civil Judge (Junior Division), Gorakhpur are shown as respondents and in the Special Leave Petition they are shown as contesting respondents. There was no necessity for impleading the judicial officers who disposed of the matter in a civil proceeding when the writ petition was filed in the High Court; nor is there any justification for impleading them as parties in the Special Leave Petition and describing them as contesting respondents. We do not approve of the course adopted by the petitioner which would cause unnecessary disturbance to the functions of the concerned judicial officers. They cannot be in any way equated to the officials of the Government. It is high time that the practice of impleading judicial officers disposing of civil proceedings as parties to writ petitions under Art. 226 of the Constitution of India or Special Leave Petitions under Art. 136 of the Constitution of India was stopped. They cannot be in any way equated to the officials of the Government. It is high time that the practice of impleading judicial officers disposing of civil proceedings as parties to writ petitions under Art. 226 of the Constitution of India or Special Leave Petitions under Art. 136 of the Constitution of India was stopped. We are strongly deprecating such a practice." In view of the settled principle enunciated by the Supreme Court in above referred to judgment, the contention that if a writ of certiorari is claimed, the Tribunal or the quasi-judicial authority is a necessary party and without joining them as a party, the petition is not competent, has no substance. In the reported decision before the Supreme Court, the Supreme Court has deprecated the practice of impleading judicial officer disposing of civil proceedings whereas in the case before us, the contention is to join the Tribunal or quasi-judicial authority who disposed of the proceedings while discharging his judicial function, as party-respondent. Since, the function of judicial officer as well as quasi-judicial officer who dispose of the proceedings while discharging their judicial function is the same, direction of the Supreme Court to deprecate the practice of impleading judicial officer is also equally applicable to the quasi-judicial officer/Tribunal. Therefore, in our considered opinion, without joining the Labour Court, the petition before the learned Single Judge was competent." 12. In fact the last portion of the observation made by the Division Bench in the case of Gujarat State Road Transport corporation v. Pravin Joshi, reported in 2004 (4) GLR 3379 i.e. "Therefore, in our considered opinion, without joining the Labour Court, the petition before the learned Single Judge was competent." is contradictory to the observation and decision made by the Division Bench at Para 20 of the same very decision of Gujarat State Road Transport Corporation v. Pravin Joshi (supra) and the Division Bench decision in Steel Authority of India Ltd. v. Gujarat Mazdoor Panchayat, reported in 2004 (1) GLR 729 . Therefore, the matter has been referred to the Larger Bench. 13. When similar issue fell for consideration before the Supreme Court in Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar, reported in AIR 1963 SC 786 , the Supreme Court made the following observations : "12. Therefore, the matter has been referred to the Larger Bench. 13. When similar issue fell for consideration before the Supreme Court in Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar, reported in AIR 1963 SC 786 , the Supreme Court made the following observations : "12. To summarise in a writ of certiorari not only the Tribunal or authority whose order is sought to be quashed but also parties in whose favour the said order is issued are necessary parties. But it is in the discretion of the Court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either suo motu or on the application of a party to the writ or an application filed at the instance of such proper party. 13. In the present case, Phudan Manjhi and Bhagwan Rajak were parties before the Commissioner as well as before the Board of Revenue. They succeeded in the said proceedings and the orders of the said Tribunal were in their favour. It would be against all principles of natural justice to make an order adverse to them behind their back; and any order so made could not be an effective one. They were, therefore, necessary parties before the High Court. The record discloses that the appellant first impleaded them in his petition, but struck them out at the time of the presentation of the petition. He did not file any application before the High Court for impleading them as respondents. In the circumstances, the petition filed by him was incompetent and was rightly rejected." 14. Recently, the aforesaid issue fell for consideration before the Division Bench of this Court in Gustadji D. Buhariwala v. Nevil B. Buhariwala, reported in 2011 (2) GLH 147 : [ 2011 (2) GLR 1357 ]. In the said case, the Division Bench referred to different decisions of this Court, other High Courts and the Supreme Court and held as follows : "54. What can be deduced as explained by the Supreme Court in Shalini's case (supra) that a writ petition is a remedy in public law which may be filed by a person, but the main respondent should be the Government, Governmental agency or a State or instrumentality of the State within the meaning of Art. 12 of the Constitution. What can be deduced as explained by the Supreme Court in Shalini's case (supra) that a writ petition is a remedy in public law which may be filed by a person, but the main respondent should be the Government, Governmental agency or a State or instrumentality of the State within the meaning of Art. 12 of the Constitution. Private individuals cannot be equated with the State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with the State can be respondents in the writ petition. It is a settled principle of law that in a petition for relief under Art. 226 of the Constitution, the Court/Tribunal whose order is impugned in the petition must be made a party to the petition so that the writ sought from the Court can go against the Court/Tribunal, but if the petition is for relief under Art. 227 of the Constitution, it is well settled that the Court/Tribunal whose order impugned in a petition need not be a party in the writ petition, the reason being by entertaining the petition under Art. 227 of the Constitution the High Court exercises its power of superintendence, which is analogous to the revisional jurisdiction. " 15. From the aforesaid decisions rendered by this Court and the Supreme Court, as referred to above, we hold as follows : (i) In a petition for relief under Art. 226 of Constitution of India against any judgment or award passed by the Industrial Tribunal or Labour Court, such Industrial Tribunal or Labour Court is a necessary party. In absence of such necessary party, no rule and writ can be issued under Art. 226 against such Industrial Tribunal or the Labour Court, and (ii) But if a petition for relief is filed under Art. 227 of the Constitution of India, the Court or the Tribunal whose order is impugned in the petition, is not a necessary party to such petition under Art. 227 of the Constitution of India. The High Court can exercise the power under Art. 227 even in absence of such Court or the Tribunal. 16. The High Court can exercise the power under Art. 227 even in absence of such Court or the Tribunal. 16. In view of the findings aforesaid, we hold that the observation of the Division Bench in Gujarat State Road Transport Corporation v. Pravin Joshi, reported in 2004 (4) GLR 3379 that - "Therefore, in our considered opinion, without joining the Labour Court, the petition before the learned Single Judge was competent" - which was given in a petition under Art. 226 of the Constitution of India, does not lay dawn the proper law and be treated as per incurim, as observation relates to the said case. The rest part of the decision in the case of Gujarat State Road Transport Corporation v. Pravin Joshi, reported in 2004 (4) GLR 3379 as made at Paragraph 20 and rest part of Paragraph 22 of the said judgment and quoted above, holds the field and is not contradictory to any of the judgments rendered by the Supreme Court or Division Bench of the High Court. 17. In the present case, we have seen that Industrial Court, Ahmedabad and Labour Court, Ahmedabad are party-respondents. Therefore, the petition under Art. 226 of the Constitution is maintainable in the said case. However, as in the other case, in which the Industrial Court or the Labour Court is not a party-respondent, is analogous to the said case and has been preferred against the same very judgment and award, it will be open to the Court to hear the writ petitions to grant similar relief, similar prayer having made against the common judgment. 18. The question as raised is answered accordingly. The writ petitions are remitted back to the learned Single Judge hearing the subject-matter for decision on merits. No. casts. Issue answered.