Raghuveer Synthetics Ltd. v. Dalpatkumar Govindlal Aahir
2013-06-17
BHASKAR BHATTACHARYA, J.B.PARDIWALA
body2013
DigiLaw.ai
JUDGMENT : Bhaskar Bhattacharya, J. This Appeal under clause 15 of the Letters Patent is at the instance of an employer and is directed against an order dated 22nd March 2012 passed by a learned Single Judge of this Court, by which the learned Single Judge has dismissed a Special Civil Application filed by the employer against the order of the appellate authority, namely, Industrial Court, under the provisions of the Bombay Industrial Relations Act, 1946. 2. The following facts are not in dispute : The respondent-workman was serving as a Clerk in the Costing Department of the appellant Company. Due to rationalisation of the Costing Department, the appellant entered into negotiation with the representative of the Union before the Conciliation Officer for abolition of two posts of Clerk in the Costing Department. According to the said agreement dated 1st April 1991, the respondent-workman was retrenched from the service with effect from 8th May 1991. 3. Being dissatisfied, the workman preferred T. Application No.454 of 1991 before the Labour Court, which was, however, dismissed vide order dated 29th January 2001. Against such order, the workman filed appeal being Appeal (I.C.) No.16 of 1991 which was also dismissed vide order dated 28th December 2001. 4. Against the said order, the respondent-workman preferred Special Civil Application No.616 of 2003 before a learned Single Judge of this Court and the learned Single Judge, by order dated 9th August 2010, remanded the matter to the Labour Court for considering afresh. 5. After the remand order, the Labour Court, after hearing the parties, allowed the application filed by the respondent-workman and directed the employer to reinstate the respondent-workman on his original post along with continuity of service and 35% back-wages. 6. Being dissatisfied, both the employee and the employer preferred two appeals being Appeal Nos.25 of 2011 and 26 of 2011 before the Industrial Court under the provisions of Section 84 of the Bombay Industrial Relations Act, 1946 and by order dated 28th November 2011, the said appellate authority disposed of both the appeals by directing the employer to pay Rs.3 lac as lump-sum compensation to the workman in lieu of reinstatement and back-wages. 7. The workman has accepted the said order but the employer came up with a Special Civil Application before this Court, challenging the order of reinstatement. 8.
7. The workman has accepted the said order but the employer came up with a Special Civil Application before this Court, challenging the order of reinstatement. 8. As indicated earlier by the order impugned in this Appeal, the learned Single Judge has dismissed the application summarily by approving the order passed by the appellate authority. 9. After hearing the learned counsel for the parties and after going through the aforesaid materials on record, we find that although the Special Civil Application, out of which the present Appeal arise, was described both as one under Article 226 and 227 of the Constitution of India, the learned Single Judge really exercised jurisdiction under Article 227 of the Constitution of India as there was no scope of exercising jurisdiction under Article 226 of the Constitution of India in the facts of the present case. 10. It is now settled law that an application under Article 226 of the Constitution of India can be moved against an order passed by a tribunal only if the conditions for grant of certiorari are available. In this connection, we may profitably refer to a recent decision of this Court in the case of Revaben wd/o Ambalal Motibhai, and others v. Vinubhai Purshottambhai Patel and others, reported in 2013(1) G.L.H. 440 , where this aspect has been considered in detail. 11. In the case before us, it appears that the order impugned before the learned Single Judge was not the original order of the tribunal but the appellate order passed under Section 84 of the aforesaid Act. Such being the position, there was no scope of invoking certiorari against such appellate authority as the proceeding of certiorari is original in nature. 12. It is, however, needless to mention that such order is subject to the supervision of this High Court in exercise of power under Article 227 of the Constitution of India and the learned Single Judge in the facts of the present case has, in exercise of such power, decided not to interfere with the order impugned. 13.
12. It is, however, needless to mention that such order is subject to the supervision of this High Court in exercise of power under Article 227 of the Constitution of India and the learned Single Judge in the facts of the present case has, in exercise of such power, decided not to interfere with the order impugned. 13. Once we hold that the order impugned was passed in the exercise of power under Article 227 of the Constitution of India, there is no scope of entertaining an Appeal under clause 15 of the Letters Patent and thus, in the facts of the present case, we hold that the order impugned is not appealable under clause 15 of the Letters Patent, and on that ground alone, we dismiss this Appeal. Interim order granted earlier stands vacated. 14. We, however, make it clear that we have not gone into the merit, and dismissal of this Appeal will not stand in the way of the appellant in seeking appropriate remedy before appropriate forum, in accordance with law. Letters Patent Appeal dismissed.