Case: Ramesh Chandra Sankla Etc  Vs. Vikram Cement Etc


Decision:
0[ds]In view of these facts, the Company was right in requesting the Labour Court to decide that the question whether claim petitions filed by the workmen were maintainable. The question was pure question of law. It did not require investigation of facts. The issue, therefore, ought to have been heard as preliminary issue. According to the counsel, the fact whether the claimants were workmen or not was afact. The Labour Court was having `limitedunder the Act. It was, therefore, obligatory on the Labour Court to decide whether the jurisdictional or preliminary fact which could confer jurisdiction on the court was present. By not doing so, it had committed jurisdictional error which was required to be corrected by the High Court inBut the High Court also committed the same error. Hence, this Court may interfere with the said order by directing the Labour Court to decide issues 4(a), 4(b) and 4(c) as preliminary issues. Even if intra court appeals are held not maintainable, the Company is before this Court under Article 136 of the Constitution and an appropriate order, therefore, may be made by the Court.We are unable to persuade ourselves to uphold the contention of the learned counsel. The Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 (Act XIV of 2006) received the assent of the President on March 28, 2006. The Act was published in the Madhya Pradesh Gazette (Extraordinary) on April 05, 2006 and was brought into force "on the 1st day of July, 1981"(2) of Section 1]. The Preamble of the Act states that it is an Act to provide for an appeal from a judgment or order passed by one Judge of the High Court in exercise of original jurisdiction to a Division Bench of the same High Court.Bare reading of(1) of Section 2 of the Act, quoted above, leaves no room for doubt that it allows a party aggrieved by a decision of a Single Judge of the High Court to appeal to a Division Bench of the High Court if a Single Judge has rendered a judgment or passed an order in exercise of original jurisdiction under Article 226 of the Constitution. Proviso to(1) expressly declares that no such appeal shall lie against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution.25. It is, therefore, clear that if the order is passed by a Single Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution, an intra court appeal would lie. If, on the other hand, a Single Judge exercises power of superintendence under Article 227 of the Constitution, intra court appeal would not be competent.The said clause (Clause 15) came up for consideration before this Court in several cases. We may, however, refer to only one leading judgment on the point in Umaji Keshao Meshram & Ors. V. Radhikabai, Widow of Anandrao Banapurkar & Anr., 1986 Supp SCC 401 . In that case, proceedings had been initiated under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. A person aggrieved by an order passed by Appellate Authority under the Act preferred revision before the Revenue Tribunal which was allowed. The order of the Tribunal was challenged in a writ petition under Article 227 of the Constitution before the High Court of Bombay (Nagpur Bench). A Single Judge allowed the petition. The order passed by the Single Judge was then challenged by the aggrieved party by filing Letter Patent Appeal before the Division Bench under Clause 15 of the Letters Patent. The Division Bench of the High Court dismissed the appeal as not maintainable. The said decision was challenged by the appellant in this Court.28. This Court observed that the High Court of Judicature at Bombay was established by Letters Patent dated June 26, 1862 issued by the British Crown pursuant to the authority conferred on it by the Indian High Courts Act, 1861 (24 and 25 Vict., c. 104). The Letters Patent also conferred right to institute an appeal to the Division Bench of the High Court against the `judgment rendered by a Single Judge of the same court in certain cases.In our judgment, the learned counsel for the appellant is right in submitting that nomenclature of the proceeding or reference to a particular Article of the Constitution is not final or conclusive. He is also right in submitting that an observation by a Single Judge as to how he had dealt with the matter is also not decisive. If it were so, a petition strictly falling under Article 226 simpliciter can be disposed of by a Single Judge observing that he is exercising power of superintendence under Article 227 of the Constitution. Can such statement by a Single Judge take away from the party aggrieved a right of appeal against the judgment if otherwise the petition is under Article 226 of the Constitution and subject to an intra court/Letters Patent Appeal? The reply unquestionably is in the negative [see Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors., (1998) 5 SCC 749 ].33. In our considered opinion, however, on the facts and in the circumstances of the present case, the petitions instituted by the Company and decided by a Single Judge of the High Court could not be said to be original proceeding under Article 226 of the Constitution. We are clearly of the view that the learned Single Judge had decided the petitions in exercise of power of superintendence under Article 227 of theview of the aforesaid facts, we have no doubt that the learned Single Judge was exercising power of superintendence over a Court/Tribunal subordinate to it under Article 227 of the Constitution. Obviously, a remedy of intra court appeal was not available. We, therefore, hold that the Division Bench was right in coming to the conclusion that intra court appeals filed by the Company were not maintainable. We see no infirmity in that part of the order. The contention of the appellant Company is, therefore, rejected.In the leading case of Daryao v. State of U.P., (1962) 1 SCR 574 , a Constitution Bench of this Court was called upon to decide whether withdrawal of a writ petition would operate as res judicata. The Court held that an order of withdrawal would not constitute res judicata inasmuch as there is no decision on the merits by the Court. The Court, however, proceeded to observe that when a petition is withdrawn by the party without obtaining liberty from the Court to file fresh petition on the same subject matter, as a general rule, the petitioner is precluded from filing a fresh petition or an appeal against such an order because "he cannot be considered to be a party aggrieved by the order passed by the Court permitting withdrawal of the petition".Dismissing the appeal and considering the ambit and scope of Order XXIII of the Code and distinguishing it from the doctrine of res judicata under Section 11 of the Code, this Courtlaw confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in(3) of Rule 1 of Order XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in(4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in(3) in order to prevent the abuse of the process of the Court". (emphasisWe may also refer to a recent decision of this Court in Sarva Shramik Sangathan (KV), Mumbai v. State of Maharashtra & Ors., (2008) 1 SCC 494. In that case, an application under Sectionof the Industrial Disputes Act, 1947 was filed by the employer for closure of undertaking. The application was, however, withdrawn since attempts were made for settlement of the matter. The efforts were not successful and hence, the management filed fresh application. It was contended by the Union that since earlier application filed by the employer was withdrawn, the second application was hit by Order XXIII of the Code. The Union relied upon Sarguja Transport Service.49. Negativing the contention, holding the application maintainable and distinguishing Sarguja Transport Service, this Court held that the action of the Management of withdrawal of first petition was bona fide. It was not a case ofwith a view to avoid an adverse order likely to be passed against it. Sarguja Transport Service had, therefore, no application. It was also observed that provisions of the Code of Civil Procedure do not strictly apply to industrial adjudication. The second application was, therefore, held maintainable.50. From the above case law, it is clear that it is open to the petitioner to withdraw a petition filed by him. Normally, a Court of Law would not prevent him from withdrawing his petition. But if such withdrawal is without the leave of the Court, it would mean that the petitioner is not interested in prosecuting or continuing the proceedings and he abandons his claim. In such cases, obviously, public policy requires that he should not start fresh round of litigation and the Court will not allow him tothe claim which he himself had given up earlier.On the facts of the case, however, we are unable to uphold the argument on behalf of the workmen that the Company did not want to prosecute the petitions and had given up its claim against the order passed by the Labour Court and confirmed by the Industrial Court. The record reveals that the Company filed one writ petition against one employee which was registered as Writ Petition No. 3060 of 2005. It also filed another petition against the remaining employees (236) which was registered as Writ Petition No. 3471 of 2005. Since the other petition was against several employees, the Registry of the High Court raised an objection that it was underIt was, therefore, not placed forIn an order, dated October 3, 2005, the Court noted that the learned counsel for the Company prayed for time "to remove the defects pointed by the office". The prayer was granted. It also appears that according to the Registry, there were practical difficulties and logistic problems since the petition was against more than 200 employees. The learned counsel for the Company, therefore, on December 14, 2005, did notthe petition and petition was accordingly dismissed ‘as notThe said order was passed on December 14, 2005. Immediately thereafter, in January, 2006, separate petitions were filed by the Company against the workmen. It is thus clear that it was not a case of abandonment or giving up of claim by the Company. But, in view of office objection, practical difficulty and logistic problem, the petitioner Company did not proceed with anand composite petition against several workmen and filed separate petitions as suggested by the Registry of the High Court.53. There is an additional reason also for coming to this conclusion on the basis of which it can be said that the Company was prosecuting the matter and there was no intention to leave the matter. As is clear, Writ petition No. 3060 of 2005 which was filed against one employee was very much alive and was never. If really the Company wanted to give up the claim, it would have withdrawn that petition as well. Thus, from the circumstances in their entirety, we hold that the objection raised by the learned counsel for the workmen has no force and is rejected.is one on existence of which depends jurisdiction of a Court, Tribunal or an Authority. If the jurisdictional fact does not exist, the Court or Tribunal cannot act. If an inferior Court or Tribunal wrongly assumes the existence of such fact, a writ of certiorari lies. The underlying principle is that by erroneously assuming existence of jurisdictional fact, a subordinate Court or an inferior Tribunal cannot confer upon itself jurisdiction which it otherwise does not possess.In our considered opinion, in the present case, it cannot be said that the Courts below have committed any error of jurisdiction in not deciding the issue as to the maintainability ofas preliminary issue. It is well settled that generally, all issues arising in a suit or proceeding should be tried together and a judgment should be pronounced on those issues.Speaking for the Judicial Committee, Lord TurnerCourts below, in appealable cases, by forbearing from deciding on all the issues joined, not infrequently oblige this Committee to recommend that a cause be remanded which might otherwise be finally decided on appeal. This is certainly a serious evil to the parties litigant, as it may involve the expense of a second appeal as well as that of another hearing below. It is much to be desired, therefore, that in appealable cases the Courts below should, as far as may be practicable, pronounce their opinions on all the important points". (emphasisThe above principle has been consistently followed. This Court dealing with the provisions of Order XIV Rule 2 (prior to the amendment Act of 1976), in Major S.S. Khanna v. Brigadiar F.J. Dillion, (1964) 4 SCR 409 ,Order 14 Rule 2, Code of Civil Procedure, where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the Court; not to do so, especially when the decision on issues even of law depend upon the decision of issues of fact, would result in atrial of the suit". (emphasisThe Law Commission also considered the question and did not favour the tendency of deciding some issues as preliminary issues. Dealing with Rule 2 of Order XIV (before the amendment), the Commissionrule has led to one difficulty. Where a case can be disposed of on a preliminary point (issue) of law, often the courts do not inquire into the merits, with the result that when, on an appeal against the finding on the preliminary issue the decision of the Court on that issue is reversed, the case has to be remanded to the Court of first instance for trial on the other issues. This causes delay. It is considered that this delay should be eliminated, by providing that a court must give judgment on all issues, excepting, of course, where the Court finds that it has no jurisdiction or where the suit is barred by any law for the time being in force". (emphasisApart from the fact that the provisions of Code do not stricto sensu apply to `industrial adjudication, even under the Code, after the Amendment Act, 1976, the normal rule is to decide all the issues together in a civil suit. In the case on hand, the contention of the workmen is that the acceptance of the scheme was not with free consent, and even otherwise they were not given all the benefits to which they were entitled under the scheme. Therefore, they continued to remain employees of the Company. The Labour Court felt that the controversy raised by the workmen can only be decided in the light of the evidence before it. The said decision has been confirmed by the Industrial Court as well as by the learned Single Judge. We find no illegality in this approach which deserves interference under Article 136 of the Constitution. We, therefore, see no substance in the contention of the Company.We would have gone into the larger question had it been decided by the Courts below in the light of the decisions of this Court. But as stated above, in the present appeals, we are not called upon to consider the merits of the matter. The claim petitions are pending before the labour Court. The present proceedings are against interlocutory orders. Any observation, one way or the other, may cause prejudice to one or the other party. We, therefore, refrain from entering into allegations andby granting liberty to both the parties to raise all contentions available in law. We also direct the Labour Court to consider the matter on merits and pass an appropriate order in consonance with law.Since we have held that the decision of the Labour Court, confirmed by the Industrial Court as well as by the High Court in not deciding issues Nos. 4(a), 4(b) and 4(c) as preliminary issues cannot be said to be illegal or contrary to law and those issues will be decided by the Labour Court along with other issues on merits, the Labour Court will consider whether the Company was right in contending that the workmen accepted retirement voluntarily and there was cessation of relationship of master and servant between them and the Claim Petitions were not maintainable. In the circumstances, it would not be proper for this Court to express any opinion at this stage on merits.The power of superintendence under Article 227 of the Constitution conferred on every High Court over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction is very wide and discretionary in nature. It can be exercised ex debito justitiae, i.e. to meet the ends of justice. It is equitable in nature. While exercising supervisory jurisdiction, a High Court not only acts as a court of law but also as a court of equity. It is, therefore, power and also the duty of the Court to ensure that power of superintendence must ‘advance the ends of justice and uproot injustice.From the above cases, it clearly transpires that powers under Articles 226 and 227 are discretionary and equitable and are required to be exercised in the larger interest of justice. While granting relief in favour of the applicant, the Court must take into account balancing interests and equities. It can mould relief considering the facts of the case. It can pass an appropriate order which justice may demand and equities may project. As observed by this Court in Shiv Shankar Dal Mills v. State of Haryana, (1980) 1 SCR 1170 , Courts of equity should go much further both to give and refuse relief in furtherance of public interest. Granting or withholding of relief may properly be dependent upon considerations of justice, equity and good conscience.90. In our considered opinion, taking into account facts and circumstances in their entirety, the order passed and direction issued by the Division Bench of the High Court was in furtherance of justice. Not only it has not resulted in miscarriage of justice, in fact it has attempted to put status quo ante by balancing interests and leaving the matter to be decided by a Competent Authority in accordance with law.91. Even otherwise, according to the workmen, they were compelled to accept the amount and they received such amount under coercion and duress. In our considered opinion, they cannot retain the benefit if they want to prosecute Claim Petitions instituted by them with the Labour Court. Hence, the order passed by the Division Bench of the High Court as to refund of amount cannot be termed unjust, inequitable or improper. Hence, even if it is held that a ‘technical contention raised by the workmen has some force, this Court which again exercises discretionary and equitable jurisdiction under Article 136 of the Constitution, will not interfere with a direction which is in consonance with the doctrine of equity. It has been rightly said that a person "who seeks equity must do equity". Here the workmen claim benefits as workmen of the Company, but they do not want to part with the benefit they have received towards retirement and severance of relationship of master and servant. It simply cannot be permitted. In our judgment, therefore, the final direction issued by the Division Bench needs no interference, particularly when the Company has also approached this Court under Article 136 of the Constitution.