KPP -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO. 438 OF 2004 IN WRIT PETITION NO. 2622 OF 1995 N.M. Wadia Charitable Trust Hospital, ) Station Road, Solapur, through its Chairman ).. Appellant versus Dr. Ashok Vyankatesh Apte, ) Age adult, occ. Medical Practitioner ) residing at Usha Kunj, 560/3 Housing Society Camp, ) Solapur )..Respondent. WITH LETTERS PATENT APPEAL NO. 168 OF 2005 IN WRIT PETITION NO. 3683 OF 1995 Dr. Ashok Venkatesh Apte, ) Age 52 years, of Solapur, Indian Inhabitant ) residing at Usha Kunj, 560/3 Housing Society Camp, ) Solapur )..Appellant versus 1. Shri V.T. Kore, Presiding Officer and Judge, ) II Labour Court, Solapur ) 2. Shri R.U. Ingule, Member, Industrial Court, Solapur. ) 3. N.M. Wadia Charitable Hospital, a Charitable Trust, ) having its office at Station Road, Solapur. )..Respondent. Mr. G.S. Godbole with Mr.A.B. Tajana for the appellant in LPA No. 438 of 2004 and for respondent No.3 in LPA No. 168 of 2005. Ms. N.D. Buch with Mr. S.K. More, instructed by Ms. Bina Dholakia for the appellant in LPA No. 168 of 2005 and for respondent in LPA No. 438 of 2004 KPP -2- CORAM: P.B. MAJMUDAR & A.A. SAYED , JJ. DATE: APRIL 05, 2011. ORAL JUDGMENT: (Per P.B. Majmudar, J.) Both these Letters Patent Appeals are directed against the judgment and order dated 23rd August, 2004 passed by the learned single Judge in Writ Petition Nos. 2622 of 1995 and 3683 of 1995. By the impugned order, the learned single Judge dismissed both the writ petitions which has given rise to the present appeals by both the contesting parties. For easy reference, N.M. Wadia Charitable Hospital, Solapur is hereinafter referred to as “the appellant” and Dr. Ashok V. Apte is hereinafter referred to as “the respondent”. 2. The appellant is a Public Trust registered under the provisions of the Bombay Public Trusts Act, 1950 and runs and manages a charitable hospital at Solapur. The respondent was appointed as a full time Paediatric Physician in Category “A” vide appointment order dated 27th February, 1981 with a consolidated monthly salary of Rs. 500/­ in the time scale of Rs. 400­20­600­40­800­EB­50­1000. Special allowance at the rate of Rs. 100/­ was also paid to the respondent as per the appointment order. At this stage, it is imperative to incorporate the appointment order issued to the respondent. The same reads thus: KPP -3- “ With reference to your application dated 28­8­1980 and dated 12­12­80, subsequent interview on 21­2­81 with the Selection Committee and your letter dated 23­2­81, you are hereby appointed as a Full time “Paediatric Physician in Category “A” in this institution on the following terms and conditions. 1. Salary: Rs.500/­ p.m. consolidated, in the time scale of Rs. 400­20­600­40­800­EB­50­1000. 2. Special allowance: Rs. 100/­ per month will be given to you. 3. Residential quarters not provided to you. 4. Probation of six months from the date of your appointment, which may be extended according to the discretion of the management. 5, Duty hours: 8.30 a.m. To 12.30 p.m. and 4.30 p.m. to 6.30 p.m. All emergencies must be attended at any time, if arises. 6. Provident Fund and gratuity will be applicable as per Provident Fund and Gratuity Act and rules thereunder, as amended from time to time. 7. Private consulting practice is allowed to you in the afternoon and in the evening, after duty hours. No private Nursing home or attachment to any other institution is allowed to you. 8. Increments: You will be given increment after confirmation, on 1st of August every year, after completion of one year. 9. Leave: According to Hospital Rules and regulations as fixed from time to time. You will not be entitled to paid leave during the probation period. 10. You will be entitled to consulting charges on private cases in paying family blocks, as per rules, on your joining. 11. Termination of service: After confirmation, your services may be terminated by one month’s notice on either side, or on payment of one month’s salary in lieu of one month’s notice. During probation, no notice of termination would be necessary on either side. 12. You will have to participate in teaching and take clinics for the students of Dr.V.M. Medical College, Solapur in liaison with the Head of the Paediatric Department. 13. Your services would be governed by Hospital service rules and regulations made applicable from time to time. 14. If you commit breach of any of the conditions mentioned KPP -4- above, the hospital has a right to take necessary action against you as deemed fit and claim the damages. 15. You will have to join duty on or after 1st March, 1981. I agree and accept the terms and conditions of this appointment. Sd/­ Dr. Ashok V. Apte Sd/­ Dr. M.C. Mehta Chairman.” 3. The services of the respondent were terminated with effect from 18th July, 1987 without paying him retrenchment compensation or wages in lieu of notice which action was challenged by the respondent by filing a complaint of unfair labour practice being Complaint (ULP) No. 212 of 1987. In the written statement filed by the appellant, it was stated that the respondent’s services had been terminated in accordance with the Rules applicable and that the complaint was not maintainable under the MRTU & PULP Act, 1971, as the appellant had not committed any unfair labour practices in discharging the services of the respondent. The Labour Court, after recording the evidence adduced by both sides, came to the conclusion that since no retrenchment compensation was paid to the respondent, the order of termination was bad­in­law. The Labour Court also found that the respondent had not led any evidence about his income from private practice and that he did not disclose his income from his private practice nor did he disclose the number of his patients. The Labour Court, however, found that since the order of termination was bad­in­law, 50 per cent back wages on that ground was awarded to the respondent. Against the order of KPP -5- the Labour Court, two revision applications were filed in the Industrial Court, by the appellant being Revision (ULP) No. 109 of 1993 and the respondent, being Revision (ULP) No. 115 of 1993. Both the revision applications filed by the appellant as well as the respondent were dismissed by the Industrial Court at Solapur on 20th January, 1995. 4. The said order was challenged by the appellant in so far as order of reinstatement and granting 50 per cent back wages with continuity of service is concerned. The said petition was numbered as Writ Petition No. 2622 of 1995. The respondent also challenged the said order as he was denied full back wages. The same was numbered as Writ Petition No. 3683 of 1995. Before the learned single Judge, a point was canvassed for the first time by the appellant that the respondent cannot be said to be a workman under Section 2 (s) of the Industrial Disputes Act, 1947, hereinafter referred to as “the Act” and, therefore, the complaint was not maintainable. The learned single Judge negatived the said contention on the ground that the said point was not taken before the Labour Court nor in the written statement and, therefore, no issue was framed. The learned single Judge also held that no such contention had been raised in the revision application filed by the appellant. The learned single Judge observed that the question whether a person is a workman or not is a mixed question of law and fact. The learned single Judge accordingly upheld the order of the Labour Court and dismissed both the writ petitions which have given rise to KPP -6- these appeals at the instance of the appellant and the respondent. 5. Mr. Godbole, the learned counsel appearing for the appellant, vehemently submitted that since the respondent was appointed in the hospital as a doctor, he cannot be described as a workman. Mr. Godbole submits that, though it is true that the said point was not taken specifically in the written statement filed before the Labour Court nor before the Revisional Court, the point of lack of inherent jurisdiction can be raised at any stage of the proceedings. He submits that the question of jurisdiction can be raised even in the execution proceedings. Even if the point is not raised before the first court, a point of jurisdiction can always be taken at any stage and in any proceedings. In order to substantiate his say that the respondent could not have been described as a workman, the learned Counsel for the appellant has cited various judgments, to which we shall advert to later on. It is submitted by Mr. Godbole that looking to the averments in the complaint and considering the appointment order itself, it is crystal clear that the respondent is not a workman as he was a highly professional doctor dealing in Paediatrics subject and that from the record the Court could have come to the conclusion that the respondent could not be considered as a workman, on the basis of the appointment order issued to him. In any case, submits the counsel, this Court may frame additional issue as to whether the respondent is a workman or not and may call for the findings from the Labour Court as, according to the learned counsel, this Court is competent to KPP -7- pass such an order under Order 41 Rule 25 of the Civil Procedure Code, 1908. 6. In the alternative it was argued by Mr. Godbole that in any case even if the order of reinstatement is confirmed by this Court on the ground that the point was not taken before the Labour Court and no issue was framed in this behalf, this is not a fit case in which any back wages could have been awarded to the doctor especially in view of the fact that the Labour Court has found that the respondent had not led any evidence to show that he was not getting sufficient income from his private practice. It is submitted by Mr. Godbole that the respondent being a highly qualified professional person and when he continued to have full time private practice after his termination, the respondent is not entitled to have any back wages and the order of the learned single Judge deserves to be set aside. 7. Ms. Buch, learned counsel appearing for the respondent, on the other hand, submits that whether the respondent is a workman or not is a question of fact and the finding of fact can be arrived at by the competent court only on the basis of evidence on record. She further submits that the appellant has not taken this point in the written statement filed before the Labour Court. Not only that even no arguments were advanced before the Labour Court that the respondent is not a workman. She further submits that in the revision filed against the order of the Labour Court, no such point was even raised in the KPP -8- revisional memo or even in the arguments. It is, therefore, submitted that this is not a case in which for the first time in these appeals, this Court may frame an issue as suggested by the learned counsel for the appellant and remand the matter especially when the respondent is more than 70 years of age and now he cannot remember the factual aspect of the matter in view of long passage of time. She further submits that the burden is on the employer to prove as to whether the employee was gainfully employed or not. Since the appellant has not led any evidence in this behalf, the respondent is entitled to get full back wages. A preliminary contention was also raised by the learned counsel for the respondent that since the learned single Judge has exercised powers under Articles 226 and 227 of the Constitution of India, the appeal is not maintainable. 8. We have heard the learned counsel appearing for the parties at length and have gone through the judgments cited at the Bar by both sides. 9. So far as the preliminary contention of Ms. Buch is concerned, a Full Bench of this Court has considered the aspect whether an appeal can lie under clause 15 of the Letters Patent against the decision of a single Judge rendered in a petition invoking Articles 226 and/or 227 of the Constitution of India in the case of M/s. Advani Oerlikon Ltd. vs. Machindra Govind Makasare and others, decided on 17th March, 2011. In Paragraph 20 it has been observed as under: KPP -9- “ 20. Upon this discussion, we now proceed to answer the questions formulated in the order of reference: Re: 1 : It is not a correct proposition in law that this Court cannot correct jurisdictional errors or errors resulting in miscarriage of justice committed by authorities which are subordinate to it by invoking powers under Article 226 of the Constitution. Re: 2 : It is not a correct proposition in law that jurisdictional errors or errors resulting in miscarriage of justice committed by subordinate Courts/Tribunals can only be corrected by this Court in exercise of powers under Article 227 of the Constitution. The writ of certiorari can be issued under Article 226 of the Constitution where the subordinate Court or Tribunal commits an error of jurisdiction. Where the subordinate Court or Tribunal acts without jurisdiction or in excess of it or fails to exercise jurisdiction, that error of jurisdiction can be corrected. Moreover when the Court or tribunal has acted illegally or improperly such as in breach of the principles of natural justice the writ of certiorari is available under Article 226. Re: 3 : Where the facts justify the invocation of either Article 226 or Article 227 of the Constitution to correct a jurisdictional error or an error resulting in a miscarriage of justice committed by authorities subordinate to this Court, there is no reason or justification to deprive a party of the right to invoke the constitutional remedy under Article 226 of the Constitution. Re: 4 : It is open to the Court while dealing with a petition filed under Articles 226 and/or 227 of the Constitution or a Letters Patent Appeal under Clause 15 of the Letters Patent arising from the judgment in such a petition to determine whether the facts justify the party in filing the petition under Article 226 and/or 227 of the Constitution. Re: 5 : The cause title, the averments and prayers in the petition can be taken into account while deciding whether the petition is one under Article 226 and/or 227 of the Constitution. Re: 6 : If the petitioner elects to invoke Article 226 and/or 227 of the Constitution and the facts justify such invocation, a Letters Patent Appeal against the order of the Learned Single Judge would be maintainable even though the Single Judge has KPP -10- purported to exercise jurisdiction only under Article 227 of the Constitution. The fact that the Learned Single Judge has adverted only to the provisions of Article 227 of the Constitution would not bar the maintainability of such an appeal. The true test is whether the facts justify the invocation of Articles 226 and 227 and this has to be determined on the facts of each case having due regard to (i) the nature of the jurisdiction invoked; (ii) the averments contained in the petition; (iii) the reliefs sought; and (iv) the true nature of the principal order passed by the Single Judge. The true nature of the order passed by the Single Judge has to be determined on the basis of the principal character of the relief granted. The fact that an ancillary direction has been issued under Article 227 of the Constitution would not dilute the character of an order as one with reference to Article 226. What has to be ascertained is the true nature of the order passed by the Single Judge and not what provision is mentioned while exercising this power. Re: 7 : Where a petition is filed under Articles 226 and 227 of the Constitution and the facts justify the filing of such a petition, it is not lawful for the Court to hold that jurisdictional errors or errors resulting in a miscarriage of justice committed by the subordinate Courts or Tribunals can be corrected only by exercising powers under Article 227 (and that the mentioning of Article 226 is redundant), thus depriving the party of a right of appeal under Clause 15 of the Letters Patent. Re: 8 : When a petition is filed under Articles 226 and 227 of the Constitution and the facts justify the filing of such a petition, it is not open to the Court to hold that Article 226 need not have been invoked, on the ground that Article 227 is clothed with the power to grant the same relief thus depriving the party of a right to elect or choose a remedy. Re: 9 : In a situation where a petition is filed under Article 227 of the Constitution and judgment is rendered in favour of the Petitioner, recourse to an appeal under Clause 15 of the Letters Patent is not barred to the Respondent before the Single Judge merely on the ground that the petition was under Article 227. In State of Madhya Pradesh vs. Visan Kumar Shiv Charanlal (supra), the appeal before the Division Bench was filed by the Respondent to the proceedings before the Single Judge in a petition which had been instituted under Article 227. Accepting the submission that a nomenclature is of no consequence and it KPP -11- is the nature of the reliefs sought and the controversy involved which determine which Article is applicable, the Supreme Court held that the appeal before the Division Bench was maintainable. A similar position arose in the decision of the Supreme Court in M.M.T.C. vs. Commissioner of Commercial Tax (supra). The Division Bench of the High Court had held that since the petition before the Single Judge was under Article 227 of the Constitution, an appeal at the behest of the Respondent to the petition was not maintainable. The Supreme Court held that the High Court was not justified in holding that the Letters Patent Appeal was not maintainable since the High Court did not consider the nature of the controversy and the prayers involved in the Writ Petition. The Full Bench has also considered the judgment of the Supreme Court on this point in paragraph 15 of the judgment. The same reads thus: 15. In Lokmat Newspapers Pvt. Ltd. vs. Shankarprasad,1 a complaint filed by the Respondent under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, was dismissed by the Labour Court and the dismissal of the complaint was affirmed in revision by the Industrial Court. A Writ Petition by the Respondent under Articles 226 and 227 of the Constitution was dismissed by a Single Judge. An appeal by the Respondent was entertained by the Division Bench which held that the employer was guilty of unfair labour practices consequent upon which reliefs were granted to the workman in the Letters Patent Appeal. On behalf of the employer, it was sought to be contended before the Supreme Court that the petition filed by the Respondent before the High Court was in substance under Article 227 and that hence, the judgment of the Single Judge could not have been appealed against under Clause 15 of the Letters Patent. The Supreme Court adverted to the averments contained in the petition filed by the workman while invoking Articles 226 and 227 of the Constitution and observed that it was clear that the workman had tried to make out a case for the interference of the High Court seeking an appropriate writ of Certiorari under Article 226 of the Constitution. Noting that the appeal before 1 AIR 1999 SC 2423 KPP -12- the Division Bench under Clause 15 of the Letters Patent was maintainable, the Supreme Court held as follows : “Basic averments for invoking such jurisdiction were already pleaded in the Writ Petition for High Court’s consideration. It is true, as submitted by learned counsel for the appellant, that the order of the learned single judge nowhere stated that the Court was considering the Writ Petition under Article 226 of the Constitution of India. It is equally true that the Learned Single Judge dismissed the Writ Petition by observing that the Courts below had appreciated the contentions and rejected the complaint. But the said observation of the learned single Judge did not necessarily mean that the learned Judge was not inclined to interfere under Article 227 of the Constitution of India only. The said observation equally supports the conclusion that the learned Judge was not inclined to interfere under Articles 226 and 227. As seen earlier, that he was considering the aforesaid Writ Petition moved under Articles 226 as well as 227 of the Constitution of India. Under these circumstances, it is not possible to agree with the contention of learned counsel for the appellant that the learned Single Judge had refused to interfere only under Article 227 of the Constitution of India when he dismissed the Writ Petition of the respondent.” After adverting to the judgment in Umaji's case, the Supreme Court concluded thus: “It was open to the respondent to invoke jurisdiction of the High Court both under Articles 226 and 227 of the Constitution of India. Once such jurisdiction was invoked and when his Writ Petition was dismissed on merits, it cannot be said that the learned single Judge had exercised his jurisdiction only under Article 226 (sic) of the Constitution of India. This conclusion directly flows from the relevant averments made in the Writ Petition and the nature of jurisdiction invoked by the respondent as noted by the learned single Judge in his judgment, as seen earlier. Consequently, it could not be said that clause 15 of the Letters Patent was not attracted for preferring appeal against the judgment of KPP -13- learned single Judge.” Considering the aforesaid, in our view, Letters Patent Appeal against the order of the learned single Judge is maintainable and even the respondent has also filed appeal challenging the order of the learned single Judge. We, therefore, negative the preliminary contention raised by the learned counsel for the respondent. 10. So far as the main point involved in the matter is concerned, it is no doubt true, as argued by Mr. Godbole, that the respondent is a highly qualified doctor who was appointed in the appellant­ hospital for the purpose of treating the patients and to do any other ancillary work relating to medicine. At this stage reference is required to be made to definition of ‘workman’ under Section 2 (s) of the Act. The same provides as under. “(s) “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person..” 11. At this stage we would like to refer to the judgments cited at the Bar by both the sides. KPP -14- 12. Mr. Godbole, learned counsel appearing for the appellant, has relied upon the decision of the Supreme Court in the case of Abdulla Bin Ali and others vs. Galappa and others1 on the point of jurisdiction. In paragraphs 8 and 9 it has been observed by the Supreme Court as under: “8. The learned counsel for the appellants, Shri R.B. Datar,