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2013 DIGILAW 1548 (MP)

Subhash Gupta v. Managing Director, MPRTC

2013-12-12

BRIJ KISHORE DUBE, ROHIT ARYA

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JUDGMENT : Rohit Arya, J. Challenge made in this writ appeal is to the order dated27.11.2007 passed in Writ Petition. Petitioner was dismissed from service on account of serious mis-conduct of misbehavior and hurling abuses upon his senior officers. 2. Application filed by the petitioner before Labour Court was dismissed vide order dated 19.4.2006. The Labour Court has recorded the finding upon due appreciation of evidence on record, that the charges levelled against the petitioner were serious in nature and found proved. In appeal before the Industrial Court, the Industrial Court did not interfere with the finding as regards misconduct. However, modified the order of punishment with the imposition of fine of Rs. 7,000/- and set aside the order of dismissal but without back wages. 3. The learned Single Judge upon perusal of the order passed by the Labour Court and the Industrial Court, found no jurisdictional error or patent illegality or perversity in orders passed by both the Courts below and did, therefore not interfere with the finding of facts in exercise of power of superintendence under Article 227 of the Constitutional of India. 4. The instant writ appeal is preferred under Clause 2 (1)of M.P. Uchcha Nyayalaya (Khand Nyay Peet Ko Appeal)Adhiniyam, 2005. “2. Appeal to the Division Bench of the High Court from a judgment or order of one Judge of theHigh Court made in exercise of original jurisdiction.- (1) An appeal shall lie from a judgment or order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India to a Division Bench comprising of two Judges of the same High Court: Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article227 of the Constitution of India. (2) An appeal under sub-section (1) shall be filedwithin 45 days from the date of order passed by a Single Judge: Provided that any appeal may be admitted after the prescribed period of 45 days if the petitioner-satisfies the Division Bench that he had sufficient cause of not preferring the appeal within such period” 5. (2) An appeal under sub-section (1) shall be filedwithin 45 days from the date of order passed by a Single Judge: Provided that any appeal may be admitted after the prescribed period of 45 days if the petitioner-satisfies the Division Bench that he had sufficient cause of not preferring the appeal within such period” 5. Upon perusal of the aforesaid provision, it is clear that the appeal shall lie from a judgment or order passed by the one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India, and no such appeal shall lie against the order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. 6. The five Judges of Bench in the case of Manoj Kumar Vs. Board of Revenue and others ( 2008 (1) M.P.L.J 152 , on critical examination of catena of judgments of Hon'ble Supreme Court, including the one cited by the petitioner namely, Lokmat Newspapers Pvt. Ltd Vs. Shankar prasad (1999) 6 SCC 275 as well as other High Courts, including this High Court crystallized the distinction between the original jurisdiction and powers of superintendence under Article 226 and 227 of the Constitution of India. Para 62 thereof is quoted below: From the aforesaid it is quote vivid that the maintainability of a writ appeal from an order or the learned Single Judge would depend upon many an aspect and cannot be put into a straitjacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the learned Single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional contexts are to be perceived. It cannot be said in a hyper technical manner that an order passed in a writ petition, if there is assail to the order emerging from the Inferior Tribunal or Subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned Single Judge. It would depend upon the real nature of the order passed by the learned Single Judge. To elaborate : whether the learned Single Judge has exercised his jurisdiction under Article 226 or under 227 or both would depend upon various aspects and many a facet as has been emphasized in the afore quoted decisions of the Apex Court. The pleadings, as has been indicated hereinabove, also assume immense significance. It would not be an overemphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can coincide, co-exit, overlap or imbricate. In this context it is apt tonote that there may be cases where the learned Single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. (Emphasis Supplied) 7. In para 67 the Hon'ble Bench has concluded in the ratio of the judgment. 8. In the light of law laid down by the aforesaid judgment, we have examined the nature of the order passed by the learned Single Judge in the instant case. We are of the considered view that the learned Single Judge, has chosen not to exercise the original jurisdiction under Article 226 / 227 of the Constitution of India while not interfering with the finding of courts below. Besides, the learned Single Judge has also not passed any order on merits, for the reason the respondent Corporation has also filed a writ petition against the order of the Industrial Court, which is pending consideration. 9. In view of the proviso of Clause 2 of Section 1 of the Adhiniyam, the instant appeal is not maintainable, hence, it is hereby dismissed.