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2013 DIGILAW 697 (GUJ)

Deputy Executive Engineer v. Rasul Mullubhai

2013-11-30

BHASKAR BHATTACHARYA, J.B.PARDIWALA

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Judgment 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. 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 sought to be quashed by issue of a writ in the nature of certiorari, it is not possible for the High Court to issue such a writ and, therefore, in all these cases, in absence of the Labour Court as a party before the learned Single Judge, His Lordship had no occasion to consider the prayer for certiorari. This bench was of the view that as it appears from the order impugned, His Lordship, in exercise of powers conferred under Article 227 of the Constitution of India, decided not to interfere with the award. We took note of the fact that out of the ten matters, initially, in nine matters, the Labour Court was made a party but, subsequently, on the prayer of the appellant the same was deleted. 3.7 We, ultimately, concluded that in view of the Division Bench decision of this Court in the case of Revaben wd/o. Ambalal Motibhai and others vs. Vinubhai Purshottamdas Patel and others, reported in 2013 (1) GLH 440 , the Letters Patent Appeals under Clause 15 were not maintainable. 3.8 Being dissatisfied, these Misc Civil Applications have been filed. 4. Mr Hasurkar, the learned advocate appearing on behalf of the applicant has, at the first instance, pointed out to us that our observation that the learned Single Judge exercised jurisdiction under Article 227 of the Constitution was on the face of it erroneous because in the concluding part, the learned Single Judge specifically recorded that there was nothing to interfere under “Article 226” of the Constitution of India. According to Mr Hasurkar, we, therefore, committed an error apparent on the face of record. 5. After going through the materials on record, we find that we specifically recorded that in view of the fact that the Labour Court was not made a party, there was no scope of exercising jurisdiction of issue of writ of certiorari and thus, in substance, it was an order passed in exercise of power under Article 227 of the Constitution of India where the learned Single Judge took into consideration the entire materials on record. We, therefore, find that all that we wanted to mean was that the jurisdiction exercised by the learned Single Judge was really under Article 227 of the Constitution of India. In our opinion, even if in spite of exercising jurisdiction under Article 227 of the Constitution of India, the learned Single Judge mentioned the figure “226” in place of “227” for that reason, the order will not become appealable. In order to decide the question of appealability of an order, the nature of the order is to be taken into consideration, not the provision which is recorded by the learned Single Judge. In order to decide the question of appealability of an order, the nature of the order is to be taken into consideration, not the provision which is recorded by the learned Single Judge. Similarly, the mere recital of a wrong provision of law does not have the effect of invalidating an order which is otherwise within the power of the authority making it 6. In this connection, we may profitably refer to the following observations of the Supreme Court in the case of State of Karnataka vs. Muniyalla reported in AIR 1985 SC 470 pointing out the effect of misquotation of a provision of a Statute: “But it is now well-settled that merely because an order is purported to be made under a wrong provision of law, it does not become invalid so long as there is some other provision of law under which the order could be validly made. Mere recital of a wrong provision of law does not have the effect of invalidating an order which is otherwise within the power of the authority making it. Here the Principal City Civil and Sessions Judge had power under S. 194 of the Criminal P.C. to make over Sessions Case No. 17/79 to the Vlth Additional City Civil and Sessions Judge and the order made by him on 30th Jan. 1981 was clearly within his authority and the only error was that he recited a wrong Section of the Criminal P.C. The order dated 30th Jan. 1981 made by the Principal City Civil and Sessions Judge must be read as an order made under S. 194 of the Criminal P.C. in so far as the direction making over Sessions Case No. 17/79 to the Vlth Additional City Civil and Sessions Judge is concerned.” 7. Thus, although the learned Single Judge wrongly quoted Article 226 in stead of Article 227 in the last part of the order, for that reason, the order will not become an order under Article 226 when legally that is not permissible in the absence of the Labour Court as party before His Lordship. Similarly, there is no dispute that the learned Single Judge otherwise possessed the power under Article 227 to enquire into the legality of the award impugned and in exercise of such power, decided not to interfere with the award on merit. Thus, His Lordship really exercised jurisdiction under Article 227 of the Constitution. Similarly, there is no dispute that the learned Single Judge otherwise possessed the power under Article 227 to enquire into the legality of the award impugned and in exercise of such power, decided not to interfere with the award on merit. Thus, His Lordship really exercised jurisdiction under Article 227 of the Constitution. 8. Next, Mr. Hasurkar contended that his clients made the Labour Court party in nine out of ten cases but it was the learned Single Judge who directed the appellant to delete the names of the Labour Court, as a result, he had deleted the same and for that direction of the learned Single Judge, his client should not be deprived of the right of appeal. 9. Mr. Rathod, the learned advocate appearing on behalf of the respondents has, however, denied the aforesaid allegation and has contended that it does not appear from record that there was any direction for deletion of party passed by the learned Single Judge and the appellant also did not challenge such order of the learned Single Judge by preferring any Letters Patent appeal against such alleged direction. Mr. Rathod further contends that even in the Memorandum of the Letters Patent Appeal out of which the present application for review arises, no such allegation has been made that the learned Single Judge compelled his client to delete the Labour Court from the cause title of the Special Civil Applications and at the time of hearing of the Special Civil Applications, no prayer for adjournment was made to challenge the alleged direction for deletion of the Labour Court as party and thus, this plea is not available to the applicant for review. 10. After hearing the learned counsel for the parties and after going through the materials on record, we do 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. 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. 11. We are, thus, unable to entertain such a point in these applications for review. 12. On consideration of the entire materials on record, we find no merit in these applications and those are consequently dismissed. No costs.