HIGH COURT OF UTTARAKHAND, AT NAINITAL Special Appeal No.246 of 2009 Shanta Kumar Belwal S/o Sri Pitamber Dutt Belwal & another … Appellants Versus M/s G. S. Bhandari and Co. Mandipather, Meghalaya Proprietor Uttar Ujala, Haldwani District Nainital … Respondent Dated:- 22nd September, 2010 Coram: Hon. Tarun Agarwala, J. Hon. V. K. Bist, J. Hon’ble Tarun Agarwala, J. (Oral) Heard Mr. M. C. Pant, the learned counsel for the appellant and Mr. V. B. S. Negi, the learned counsel for the respondent. 2. The service of the appellants were terminated on 04th September, 1978. The workers raised an industrial dispute and, the State Government, made a reference, by an order dated 04th September, 1979. The Industrial Tribunal gave an award dated 21.06.1985 directing reinstatement with backwages. The employer, being aggrieved by the said award, filed a writ petition No.1455 of 1986 before the Allahabad High Court, which remained pending and, upon the creation of the State of Uttarakhand, the matter was remitted to this Court, where it was renumbered as Writ Petition No.294 of 2002 (M/S). The writ court allowed the writ petition and the award of the Industrial Tribunal was set aside by an order dated 12.08.2009. The workmen filed a review application, which was dismissed by an order dated 11.11.2009. The workers, being aggrieved by the aforesaid orders, have filed the special appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, which is applicable to this Court. 3. A preliminary objection was raised by the learned counsel for the respondent employer with regard to the maintainability of the present appeal. The learned counsel for the respondent submitted that no special appeal was maintainable against an order of the learned Single Judge setting aside an award passed by the Industrial Tribunal. 4. On the other hand, the learned counsel for the appellants submitted that a writ petition under Article 226 of the Constitution of India was filed against the award of the Industrial Tribunal against which a special appeal was maintainable. In support of their submissions, the learned counsel for the parties have placed various judgments, which will be considered herewith. 5. Before proceeding further, it would be appropriate to peruse Chapter VIII Rule 5 of the Allahabad High Court Rules, which has been adopted by this Court. Chapter VIII Rule 5 of the Rules of the Court has underwent a series of amendment since its inception, which was framed in 1952. Chapter VIII Rule 5 of the Rules of the Court, as existing as on date, is quoted hereunder:- “5. Special appeal. –An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction [or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award – (a) of a tribunal, Court or statutory 3 arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matter enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge.]” 6. From a perusal of the aforesaid, it is clear that no appeal arising from a judgment or order of one Judge of the High Court made in exercise of jurisdiction conferred by Article 226 & 227 of the Constitution of India in respect of a judgment, order or an award of the Tribunal would lie. The language of the provision of Chapter VIII Rule 5 of the Rules of the Court shows that no appeal shall lie against a judgment rendered in exercise of jurisdiction conferred by Article 226 & 227 of the Constitution in respect of any judgment or order made or purported to be made in exercise of appellate jurisdiction under Uttar Pradesh Act or any Central Act with respect to any matter enumerated in the State List or in the Concurrent List in the Seventh Schedule to the Constitution. 7. The subject matter of challenge in the writ petition was an award passed by the Industrial Tribunal under the U.P. Industrial Disputes Act. This Act has been passed by the Parliament with reference to entry 22 to 24 of the Concurrent List. Entries 22 to 24 of the Concurrent List of Seventh Schedule reads as under :- “22. Trade unions; industrial and labour disputes. 23. Social security and social insurance; employment and unemployment. 4 24. Welfare of labour including conditions of work, provident funds, employer’ liability, workmen’s compensation, invalidly and old age pensions and maternity benefits.” 8. The claim made by the workers before the Industrial Tribunal was under the U.P. Industrial Disputes Act and was basically a claim for reinstatement with backwages. The Industrial Disputes Act has been enacted with reference to entries 22 to 24 of the Concurrent List. Therefore, the award passed by the Industrial Tribunal, which was the subject matter of challenge in the writ petition, was under an Act which has been passed by the Parliament with respect to matters enumerated in the Concurrent List. 9. In Life Insurance Corporation of India Vs. Special Judge (Anti-Corruption) / Addl. District and Sessions Judge, Varanasi & others 2000 (3) A.W.C. 2573, the Allahabad High Court held that the order passed by the appellate authority under the Payment of Wages Act, which was the subject matter of challenge in the writ petition, was under an Act which had been made by the Parliament with respect to matters enumerated in the Concurrent List. It was further held that if a writ petition was directed against an appellate order passed in exercise of jurisdiction under any Uttar Pradesh At or under any Central Act with respect to any of the matters enumerated in the State List or the concurrent list in the Seventh Schedule to the Constitution, no appeal would be maintainable against the judgment and order of the learned Single Judge. 10. Even otherwise, the language of the first part of Chapter VIII Rule 5 of the Rules of the Court makes it absolutely clear that a special appeal would not lie against an award passed by the Tribunal. In the present case, the award was passed by the Tribunal was challenged in a writ jurisdiction against which no special appeal was maintainable under Chapter VIII Rule 5 of the Rules of the Court. 11. In Vajara Yojna Seed Farm, Kalyanpur (M/s.) & others Vs. Presiding Officer, Labour Court II, U.P., Kanpur & another 2003 (1) Uttar Pradesh Local Bodies & Educational Cases (UPLBEC) 496, the Division Bench after analyzing the provision of Chapter VIII Rule 5 of the Rules of the Court held that a special appeal questioning the order of the learned Single Judge setting aside an award of the labour court was not maintainable. 12. In Ram Kripal Singh Vs. U.P. State Road Transport Corporation, Lucknow & others 1999 (2) Allahabad Weekly Cases (A.W.C.) 1147, it was held that the relief sought in the writ petition was in respect of an award passed by the labour court against which no special appeal was maintainable under Chapter VIII Rule 5 of the Rules of the Court. 13. In Pratappur Sugar and Industries Limited Vs. Deputy Labour Commissioner, Gorakhpur & another 2000(4) A.W.C. 2834, it was held that the proceedings before the Deputy Labour Commissioner has the trappings of a court and that the Deputy Labour Commissioner functions as a Tribunal in deciding a dispute and, therefore, no special appeal was maintainable. 14. Similar view was held in U.P. State Electricity Board & another Vs. Labour Commissioner, U.P. & another 1999 (3) A.W.C. 2716 in which it was held that against an order passed by the prescribed authority, no special appeal was maintainable against the order passed by the learned Single Judge in a writ petition, which had questioned the order of the prescribed authority under the Payment of Wages Act in as much as the authority acted as a Tribunal. 15. The learned counsel for the appellants placed reliance upon the decisions of the Supreme Court in Ramesh Chandra Sankla & others Vs. Vikram Cement & others 2009 (1) SCC (L&S) 706 and in State of Madhya Pradesh & others Vs. Visan Kumar Shiv Charan Lal 2009 (1) UPLBEC 629 wherein the Supreme Court, while considering the provision of Section 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth ko Appeal) Adhiniyam, 2005 (Act 14 of 2006) held that an appeal would lie against a judgment or order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution, to a Division Bench comprising of two Judges of the same Court. The learned counsel for the appellants also placed reliance upon a decision of the Supreme Court in Shahu Shikshan Prasarak Mandal & another Vs. Lata P. Kore & others 2009 (1) UPLBEC 234 in which the provision of Clause 15 of the Letters Patent was considered and the Supreme Court held that if the judgment under appeal falls under Article 227 of the Constitution, in that event, the intra-court appeal from such judgment would not be maintainable. The Supreme Court further held that if the petitioner had invoked the jurisdiction of the High Court for issuance of a writ under Article 226, although Article 227 of the Constitution was also mentioned and principally the judgment falls under Article 226, the appeal would be maintainable. In Umaji Keshao Meshram Vs. Radhikabai 1986 Suppl. SCC 401, it was held that where the facts justify a party in filing 7 an application either under Articles 226 or 227 of the Constitution, and the party chooses to file the application under both these articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal, the court ought to treat the application as 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. Consequently, the Supreme Court held that the intra-court appeal would be maintainable. 16. The aforesaid decisions cited by the learned counsel for the appellants has no application in much as the provision which was considered were totally distinguishable from the provision of Chapter VIII Rule 5 of the Rules of the Court. Consequently, the said decisions are totally distinguishable and are not applicable to the present facts and circumstances of the case. 17. In the present case, the provision of Chapter VIII Rule 5 of the Rules of the Court makes it absolutely clear that no appeal shall lie against a judgment rendered in exercise of jurisdiction conferred under Article 226 and 227 of the Constitution in respect of any judgment, order or an award of a Tribunal. 18. A right of appeal is a creature of a statute and a litigant does not have an inherent right to prefer an appeal against an order or judgment unless such a right is conferred to the litigant by law as held by the Supreme Court in Shah Babulal Khimji Vs. Jayaben D. Kania & another 1981 (4) SCC 8 wherein it was held that the right of an appeal is available to a litigant depends on the statute creating a right to appeal and the order 8 must be an order made appealable by the statute and has to satisfy the test. 19. As held earlier, the order of the learned Single Judge does not fall within the categories of the orders that are made appealable under Chapter VIII Rule 5 of the Rules of the Court. In fact, it is an order which is falling within the prohibited category and is expressly excluded from being appealable under Chapter VIII Rule 5 of the Rules of the Court. 20. In the light of the aforesaid, a special appeal is excluded from a judgment or order of one Judge made in exercise of jurisdiction conferred under Article 226 & 227 in respect of judgment or order made or purported to be made in exercise of appellate jurisdiction under any Uttar Pradesh Act or under any Central Act with respect to any of the matters enumerated in the State List or the concurrent list in the Seventh Schedule to the Constitution. Consequently, the special appeal is not maintainable under Chapter VIII Rule 5 of the Rules of the Court and is dismissed accordingly. 21. The learned counsel for the appellants made a request that a certificate be granted under Article 134A of the Constitution of India to enable the appellants to file an appeal before the Supreme Court. In our view, no substantial question of law arises. The request is accordingly, rejected. (V. K. Bist, J.) (Tarun Agarwala, J.) Dated 22.09.2010 LSR