HIGHCOURT OFCHMAmSGARMATBlLASPUR v. DirectorKeystone Industries Ltd

DirectorKeystone Industries Ltd. Plot No. Industrial Area, Nandini Road, 18-26, Bhilai, Distriot Durg (C.G.) Vishnu Chemteals Pvt. Ltd. Plot No. 18-26, Industrial Area, Nandini Road, Bhilai, District Durg (C.G.) Labour Court Constituted under Industrial Disputes Act, Dutg (C.G.) .the Writ aEDeaLunderSeotiQn2(1lsfTheGhhattisaarh Hiah CourtADDeal to Division Berich Act. 2006 !l:.i / Present :

Ms. Sudha Bhardwaj, counsel for the appeliant. Shri Indrasen Sahu, counsel for the respondents. JUDGIVIENT ^T (Delfvered on lyjuh?. 2007) Per Hon'bte Shri Jaadish Bhalla, Aa. CJ. ThisWritappeal is directed against the order dated 06-02-2007 passed by learned Single Juclge in Writ Petition No. 4052/2004 whereby the writ petition was allowed and the award dated 06-08-2004 pronounced by the Labour Court (constituted under ths Industrial Disputes Act, 1947), Durg, (C.G.) (hsreinafter referred to; as "Labour Court, Durg) was set aside and four workmen represented tlirough respondent No. 2 in the writ petition were declared to be entitled |o0ne ^ \ A ' ; .• ^ : : ' . • • ' f ;'. ! 1 , IB i "s, •i month's pay in lieu of notice with compensation and encashment of un-avaiteGl portionofleave. Proceeding before the Labour Court started when on behalf of the State Government Shri H.R. Dwivedi, Dy. Labour Commissioner, Chhattisgarh Area, Raipur referred the following industrial dispute to the Laboyr Court under Section 10 of the Industrial Disputes Act 1947 (Act 14of1&47). "WT <ft 'd^M ^ 31^ —3 (^ 'HdM) ^' '•^T ler ^c[ ^sa|cplc,^u| ^giitrii ^ Trra t ^? ^?T TNsr ^ Piylu)*. f? q^ ?f^ i f^ff •cpl' •^-rf '^fr fSr^]- f^ -un^ "cnf^?" The Labour Court on 06-08-2004 gave an award in favour offour workmen. Aggrieved by the said award, Director, Keystone Industries Ltd. and Vishnu Chemicals Pvt. Ltd. filed writ petition No. 4052/2004, while filing the writ petition the same was titied as 'wrH uncterArScles 226/227 of fhe Constituffonof India for issuance of a suitable writ, orders or diiecffon'. The following reliefs were soyght for in paragraphs 7 of the writ petition:- "7.1 That this Hon'ble Court may be pleased to call for the entire records.

7.2 That this Hon'ble Court may kindly be pleased to set aside the award dated 06-08-2004 passed by respondent no.1 in caseno. 15/1D Act/Refererice/1999.

7.3 Any other relief, which Hon'ble coUrtdeems fit and! proper of the case, may be allowed. ^y^^jii^d iU llilMj

7.4 Cost of the petition may also be given. " Before coming in to force of The Chhaftisgarh High Court (Appeal to Division Bench) Acts, 2006, the ihtra court appeals were being filed under the provisions of Madhya Pradesh Uchcha Nyayalaya (Letters Patent Appeals Sampati) Adhiniyam 1981 (hereinafter referred to "Adhiniyam"). The said provisions of Letters patent Appeals was repealed by the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 (No.1 of 2007) and by the same notification Chhattisgarh High Court Rules, 2005 came into foree wherein the provisipn of i^.. appeal is provided under Rule 2 which is as follows:- f "2. Appeal to the Division Bench of the Hgh Court from a Judgment or order of one judge of the High Court made in exercise of original jyrisdiction:- (1) An appeai shail lie from ajudgmentororderpassedbyoneJudge of the High Court in exereise of original Jurisdiction under Article 226 of the Constitution of India, to a Division Bench comprisingoftwo Judges of the same High Court: Provided that no such appeal shall iie against an interiocutory order or against an order passed in exercise of supervisory jurisdiction under Article227 of the Constitution of tndia. , • (2) An appeal under sub-section (1) shall befiled within 45 days from the date of order passed by a single Judge.

Provided that any appeal may be admitted after the prescnbed period of 45 days, the petitioner satisfies the Division Bench that he had sufRcient cause for notprefemngthe appeal within such period. j 4 Explanation:- The fact that the pefitioner was misled by any order, practice or judgment of the High in ascertaining the prescribed period may by Court sufficientcausewithinthemeaningofthissub-section. " From the perysal of atoresaid provision it cannot be a matter of doubt that no appeal shall lie against an order passed in exercise of supervisoryjurisdictionunderArticle227oftheConstitutionoflndia. Filing of appeal is a matter of substantive right and it is weli- known that by said right one can approach the superior Court invoking e- its aid and interposition to redress an error of the Court below. The basic idea behind filing ofan appeal revolves round the right as contra- distinguished from the procedure laid down therefor. in Messrs.

Hoosein Kasam Dada (India) Ltd. Vs.The State of Madhya Pradesh and others, A!R 1853 SC 221, it has been opined by the Apex Court as ^•.^ under: "11. The above decisions quite firmly establish and our decisions in JanardanReddyVs.TheState and in Ganpat Rai vs. Agarwal Chamber of Commeree Ltd., uphold the principle thata right of appeal merely a matter of procedure. substantive right. This right of appeal It is matter of from the is not ^ decision of an inferior tribunat to a superior tribunai becomes vested in a party when prQceedings are first initiated in, and before a decision is given by, inferior court. " Inthe backdrop of what has been referred hereinabove, learned counsel for the appellant was called upon to address the Court "\ T::'::?';:!i'';!::s:;1-—= i::;:i:fc;-}'ri!***i"w*' •IBl. IBI;M^i^ whether the writ appeal arising out of the order passed in the writ petition filed under Articles 226/227 of the Constitution of India is mainfainable?

Leamed counselfortheappellantMs.SudhaBhardwaj 6m^hatiM|ly^5ubmitted^that; writpetitipnwasfi under Articles 226/227 of the Constitution of India, therefore it'attracts the onginal jUrisdictionconferred upon the High Court by the Constitution of India. Accordingly, writ appeal under Section 2(1) of the Chhattisgarh High CourtAppeal to Division Bench Act, 2006is maintainabteandtheright of appeat cannot be taken away from the appellant and any such a' attempt would amount to adversely affecting the substantive right of the appellant for havingatleast one stage of appeal. In support of her argument she relied ypon the decision of the Supreme Court in the matter of Umaji Keshao Meshram ahdothers Vs. Smt. Radhikabai and another, AIR 1986 Supreme Court 1272 wherein the following view has been taken by the Apex Court:- "Petitionsare at times fited both under Artictes 226 The case of Hari the Constitution. and 227 of Vishnu Kamath v.

Syed Ahraad Ishaque (1955) l SCR 1104; (AIR 1955 SC 233) before this Court was of such a type. Rule 18 provides that where such petitions are filed against orders of tribunals or authorities specified in Rule 18 pf GhapterXVII of the Appellate Side Rules or against decrees or ordere of GoyrtsspeGified-in that Rule, they shall be heard and finally disposed of by a singte Judge. The question is whether an appeal would lie from the decision pfthesingle Judge[ in : .' ' . In our opinion, where the factsjustifl/ a such acase. -7 . '. " .' '. J ' . • : \ party in filing an application either under Articie 226 or 227 of the Constitutfon, and the party chboses to fite his application under both these Articles, faimessand justice tpsuch party and in order'not to deprive him of the valuable right of appeal the Court ought to treat the application is being made under Article 226, and if in deciding the matter, in the final order, the Court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters patent where the substantial part of the ordersought to be appeaied against is under Article 226.

Sueh Was the view taken by the Allahabad High Court in Aidai Singh v. Karan Singh, AIR 1957 AII414 (FB) and by the Punjab High Court in Raj KishanJainv. Tylsj Dass.AIR 1959 Punj 291 and Barham Dutt V. Peopies' Co-operative Transport Society Ltd., New Delhi, AIR 1961 Punj 24 and we are in agreement with it. " It is further contended that under such circumstances the appellanf cannot be deprived of his valuable right of appeal and the writ petition filed before leamedSingle Judge ought to be treated under Article 226 of the Constjtution of India. Learned counsel for the appellant has attempted to explain that writ petition was filed pn the original jurisdiction under Article 226 of the Constitution of India seeking setting aside of the award passed by the Labour Court and Article 227 was added in the petition filed for superintendence conferred upon the HighCourt by Articie 227]of the Constitution.

1 <. ^. ' -c- We are of the considered opinion that the powers conferred by Article 226 are different in spirit from the powers conferred by Article 227 of the Constitution and they operate in different fields. It may be that the same goal can be achieved by the appellant by filing a writ petition under two different provisions of the Constitution. Under Article 226 an order, direction or prerogative writ has to be issued to the State, Authority or a person and in such proceedings the State, Authority or person against whom the relief is being sought is a necessary party. The proceedings under Articie 226 of the Constitution of India are the original proceedings however, the nuclear point is that whether it originated first time in the HighCourt under Articie 226 only. However, under Article 227 the pefitioner would come before this Court after being aggrieved by an order or judgment of the subordinate Court or Tribunal for the purpose of ascertaining whether in giving such judgment or order the subordinate Court or the Tribunal concerned has acted within the Authority of Law.

We are of the opinion that the Labour Court is not merely adepartmental Tribunal composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occasionally come to our notice. In fact the Labour Court and Industrial Tribunals have been constituted as a substitute for the High Court under Articie 323-A of the Constitutibn, still the High Court exercises supervisory jurisdiction under Article 227 of the Constitution. In the matter of Krishan Prasad GuptaVs. Controller, Printihg & Stationery(1996) @- 1 SCC 69 it has been held by the Apex Court that under Article 227 of the Constitution of Indiathe High Courthas supervisory jurisdiction of the Labour Courts and Industrial Tribunals constituted under Articie 323-A of the Constitution. The right of appeal is always statutory one which Qriginates from the statute. In the case in hand the petitioners had challenged the award of the Labour Court before learned Single Judge with certain prayers which have already been referred to hereinabove.

Now we proceed to examine ths reliefs claimed by the writ petitioners and the retiefs granted to them by learned Single Judge in the writ petition in question. We find that the award of the Labour Court has been prayed to be set aside. We further find that reference of 1999 on the basis of which the proceedings before the LabourCourt started is not under challenge. We further firid that the petitioners had not prayed for issuance of any writ in the said petition. However, on the other hand the petitioners had prayed forsetting aside of the award dated 06-08-2004 passed by the LabpurCourt. Learned Single Judge while deeidingtte writ petition has not issued any direction which could be said to be under the original jurisdicti6n i.e. under Article 226 of the Constitution of India. We find that neither the vires of any Act nor the reference order of the State Govemment were under challenge in the writ petition and admittedly the controversy involved between the parties does not originate in the High Court. -•^ f; .'''; x It has already been referred to hereinabove that the controversy does not originate before the High Court.