LPA/596/2007 1/39 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 596 of 2007 IN SPECIAL CIVIL APPLICATION No. 3988 of 2005 WITH CIVIL APPLICATION No. 3913 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE K.A.PUJ =================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? =================================== MILL MAZDOOR SABHA - Appellant Versus M/S RUSHBH PRECISION BEARING LTD & 2 - Respondents =================================== LPA/596/2007 2/39 JUDGMENT Appearance : MR TR MISHRA WITH MR KR KOSHTI for Appellant. MR KS NANAVATI, SENIOR ADVOCATE FOR NANAVATI ASSOCIATES for Respondent No. 1. None for Respondents : 2 - 3. =================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE K.A.PUJ Date :18/06/2007 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE K.A.PUJ) 1. The appellant – orig. respondent No. 1 has filed this appeal under Clause 15 of the Letters Patent challenging the judgment and order dated 23.03.2007 passed by the Learned Single Judge in Special Civil Application No.3988 of 2005 quashing and setting aside the award dated 30.08.2002 passed by the Industrial Tribunal, Rajkot in Reference (IT) No. 46 of 2002 and remanding it to the Tribunal for hearing and deciding afresh in respect of the workmen of the present respondent – original petitioner, namely, M/s. Rushbh Precision Bearing Limited only. While remanding the matter, the LPA/596/2007 3/39 JUDGMENT Learned Single Judge has clarified that both the parties shall be at liberty to approach the appropriate Government to suitably modify the reference made to the Tribunal. The Learned Single Judge has further clarified that the workmen of SRS Bearings Industries and SRS Engineering Industries shall be at liberty to raise industrial dispute against the respective industry. It is further observed that if such a dispute is raised, the appropriate Government shall consider and process the same in accordance with law. The Learned Single Judge has directed that the sum of Rs.20 Lacs deposited in this Court and invested by Registry shall continue to be invested until the reference is heard and decided afresh by the Tribunal and it shall be subject to the decision of the Tribunal. The Registry was directed to transfer the said sum of Rs. 20 Lacs to the Tribunal. The Learned Single Judge has further directed that the present respondent – original petitioner Company shall pay a cost of Rs.1,000/- to each workman employed by it i.e. the employees of the present respondent – original petitioner M/s. LPA/596/2007 4/39 JUDGMENT Rushbh Precision Bearing Limited within four weeks from the date of the said order. 2. On behalf of the respondent – original petitioner, caveat was filed by M/s. Nanavati Associates. Hence, the Court has heard Mr. T.R. Mishra, learned advocate with Mr. K. R. Koshti, learned advocate appearing for the appellant and Mr. K. S. Nanavati, learned Senior Advocate for M/s. Nanavati Associates for the respondent – original petitioner Company at length at the admission stage. 3. The brief facts giving rise to the present appeal are that the whole dispute arose way back on 16.09.1999 when the appellant Union went on strike which was illegal according to the respondent Company. The respondent Company, therefore, immediately on the same day displayed notice on the notice board requesting the workmen to resume duties and also sent copies of notices to the appropriate Government authorities informing them about the said strike. The appellant approached this Court by way of filing LPA/596/2007 5/39 JUDGMENT Special Civil Application No. 7346 of 2000 alleging that the respondent Company had illegally closed down the undertaking and, therefore, challenged the said action. This Court vide its order dated 15.10.2000 directed that competent Court would initiate proceedings and thereby relegated the appellant Union to approach the appropriate authority. 4. The appellant Union thereafter approached the appropriate Government for adjudicating its grievance and a Reference (IT) No. 46 of 2002 was made before the Industrial Tribunal, Rajkot. The Industrial Tribunal, Rajkot vide its award dated 30.08.2002 directed the respondent Company to reinstate all the 324 workers on their original post with full back wages and further directed the Labour Court, Surendranagar to issue Recovery Certificate for recovery of the amount of salary. Pursuant to the award passed by the Industrial Tribunal, Rajkot directing reinstatement with full back wages and continuity of service, the appellant Union preferred LPA/596/2007 6/39 JUDGMENT Recovery Application No. 146 of 2002 claiming back wages in terms of award and the said recovery application was decided on 15.03.2003 whereby the Recovery Certificate for an amount of Rs.4,93,26,260/ was issued being the amount recoverable for all 324 employees. Since the District Collector, Surendranagar was not taking any effective action to recover the said amount as per Recovery Certificate under the Bombay Land Revenue Code, the appellant Union filed Special Civil Application No.15255 of 2003 before this Court for attachment and auction of the plant of the respondent Company to recover the amount as per the award. This Court vide its order dated 12.10.2004 issued directions to the District Collector to proceed further with the Recovery Certificate in accordance with law. The respondent Company has thereafter filed Civil Application being Civil Application No. 8461 of 2004 for review of the said order as the original order was passed in absence of the advocate of the respondent Company. The said Civil Application came up for hearing on 07.12.2004 LPA/596/2007 7/39 JUDGMENT and this Court has refused to interfere with its order dated 12.10.2004 and the said application was accordingly rejected. 5. Being aggrieved by the rejection of the Civil Application, the respondent Company filed Letters Patent Appeal No.1190 of 2005 which was ultimately withdrawn on 16.09.2005. 6. In the meantime in March 2005, the respondent Company filed Special Civil Application No. 3988 of 2005 after about 2 and half years and on 06.04.2005 this Court issued conditional notice to deposit a sum of Rs.20 Lacs for hearing the matter on merit. The respondent Company did not deposit the said amount and, therefore, the said Special Civil Application was dismissed for non-compliance of the condition of depositing Rs.20 Lacs. The Letters Patent Appeal filed by the respondent Company against dismissal of the main petition was also dismissed on 01.12.2005. LPA/596/2007 8/39 JUDGMENT 7. Being aggrieved by the said dismissal order passed in the Letters Patent Appeal, the respondent Company filed Special Leave Petition before the Hon'ble Supreme Court wherein the respondent Company agreed to deposit a sum of Rs.20 Lacs. Thereafter, the Special Leave Petition was disposed on 03.01.2006 with a liberty to approach the High Court. The respondent Company filed Misc. Civil Application No. 3306 of 2006 in December 2006 for restoration of Special Civil Application No. 3988 of 2005 and on depositing the aforesaid amount of Rs.20 Lacs, the original petition was restored. On 06.03.2007, Special Civil Application No. 3988 of 2005 has been admitted and ad-interim relief suspending the operation, implementation and execution of the award was passed. Ultimately on 23.03.2007, the petition came to be finally disposed of in terms of the remand order with certain directions as stated earlier. 8. It is this order of the Learned Single Judge which is under challenge in the present Letters Patent LPA/596/2007 9/39 JUDGMENT Appeal. 9. Before Mr. T.R. Mishra, learned advocate appearing for the appellant makes his submission, Mr. K. S. Nanavati, learned Senior Counsel appearing for the respondent has raised a preliminary objection against the maintainability of the Letters Patent Appeal filed by the appellant. The preliminary objection was to the effect that the Learned Single Judge, while deciding the petition, has exercised supervisory jurisdiction vested under Article 227 of the Constitution of India. The Learned Single Judge, while delivering the decision under challenge, has exercised power of superintendence under Article 227 of the Constitution of India. Therefore, in light of Clause 15 of the Letters Patent, the Letters Patent Appeal is not maintainable. According to Mr. Nanavati, the present respondent who is petitioner in the petition has challenged the award dated 30.08.2002 in Reference (IT) No. 46 of 2002 and also the Recovery Certificate issued by the Labour Court pursuant to the said award. The prayers made in the LPA/596/2007 10/39 JUDGMENT petition also invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India. He has, therefore, submitted that the petition has not been filed invoking jurisdiction of the High Court under Article 226 of the Constitution of India. In support of his submission, he has relied on the decision of the Hon'ble Supreme Court in the case of Surya Dev Rai V/s. Ram Chander Rai and Others, (2003) 6 SCC 675 wherein the Hon'ble Supreme Court has laid down three differences that exist between the powers to be exercised by the Court under Articles 226 & 227 of the Constitution of India. The Hon'ble Supreme Court has observed as under :- “Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of LPA/596/2007 11/39 JUDGMENT supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, may be, by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well.” 10.The Hon'ble Supreme Court has further held that a writ of certiorari under Article 226 is issued for correcting gross errors of jurisdiction i.e. when a subordinate Court has acted without jurisdiction, by assuming jurisdiction where there exists none, or in exercise of its jurisdiction or in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice and thereby occasioning LPA/596/2007 12/39 JUDGMENT failure of justice. The Hon'ble Supreme Court further held that neither a writ of certiorari or exercise of supervisory jurisdiction is available to correct mere errors of fact of or law unless (i) The error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and (2) a grave injustice or gross failure of justice has occasioned thereby. Thus, looking at the above principles as laid down by the Hon'ble Supreme Court, Mr. Nanavati has submitted that it becomes clear that the Learned Single Judge, in remanding the matter back to the Industrial Tribunal for taking a fresh decision in the matter, has exercised jurisdiction under Article 227 of the Constitution of India against which no appeal under clause 15 of the Letters Patent lies. 11.Over and above this, while hearing Letters Patent Appeal No.1205 of 2006, wherein similar such point of maintainability of appeal is involved our attention is drawn on the following decisions :- LPA/596/2007 13/39 JUDGMENT (1) Umaji Keshao Meshram and others Vs. Smt. Radhikabai and another, AIR 1986 S.C. 1272 (2) Kanaiyalal Agrawal and others V/s. Factory Manager, Gwalior Sugar Company Limited, (2001) 9 SCC 609 (3) Ishwarbhai Narottambhai Patel V/s. K. H. Trivedi & Ors. 2003 (3) GLR 1878 (4) Steel Authority of India Limited V/s. Gujarat Mazdoor Panchayat and Another 2004 (1) GLR 729. (5) Life Insurance Corporation of India V/s. Pravinbhai Trivedi, (2006) 11 GHJ 161. 12.Based on the aforesaid judgments, Mr. Nanavati has strongly urged that the present appeal deserves to be dismissed only on the ground of maintainability since appeal filed against the order or judgment passed in a petition whereby the Learned Single Judge has exercised his jurisdiction under Article 227 of the Constitution of India, is not maintainable. 13. While meeting with this preliminary objection, Mr. LPA/596/2007 14/39 JUDGMENT T. R. Mishra, learned advocate appearing for the appellant has submitted that the present respondent has filed the petition under Article 226 & 227 of the Constitution of India. The preamble of the petition clearly indicates that while filing the petition, the present respondent has invoked the jurisdiction of this Court under the provisions of Article 226 & 227 of the Constitution of India. He has further submitted that the Learned Single Judge has also exercised the powers under Article 226 of the Constitution of India and nowhere it is stated that he was exercising the said powers under Article 227 of the Constitution of India. He has, therefore, submitted that the present appeal should be entertained on merits without being thrown out on the ground of non-maintainability. In support of his submission, he relies on the latest decision of the Hon'ble Supreme Court in the case of Kishorilal V/s. Sales Tax Officer, District Land Development Bank and others, (2006) 7 SCC 496 wherein it is held that the Division Bench of the High Court wrongly dismissed the Letters Patent Appeal without noticing LPA/596/2007 15/39 JUDGMENT that an appeal would be maintainable if the writ petition filed under Article 226 & 227 of the Constitution of India as was held by this Court i.e. Supreme Court in Sushilabai Laxminarayan Mudliya V/s. Nihalchand Waghjibhai , (1993) Supp. 1 SCC 11. 14.So far as the merits of the matter is concerned, Mr. Mishra has submitted that the Learned Single Judge was not justified in entertaining the petition at the belated stage i.e. after two and half years, knowing fully well that the Industrial Tribunal has passed award on 30.08.2002. Even looking to the conduct of the present respondent who has not complied with the interim direction to deposit a sum of Rs.20 Lacs and took chance by filing Letters Patent Appeal and SLP before this Court as well as the Hon'ble Supreme Court, he should not have entertained the petition. So far as the delay in approaching this Court is concerned, Mr. Mishra has relied on the decision of the Hon'ble Supreme Court in the case of LPA/596/2007 16/39 JUDGMENT State of M.P. & Others V/s. Nandlal Jaiswal and others, 1986 (4) SCC 566 wherein Hon'ble Supreme Court has observed that it is well settled that the power of High Court to issue an appropriate writ under Article 226 is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. The evaluation of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but LPA/596/2007 17/39 JUDGMENT also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs with the High Court in deciding whether or not to exercise such jurisdiction. 15.Mr. Mishra further relies on the decision of the Hon'ble Supreme Court in the case of M/s. Rup Diamonds and Others V/s. Union of India and others, 1989 (2) SCC 356 wherein while dismissing the petition, the Hon'ble Supreme Court has observed that apart altogether from the merits of the other grounds for rejection, the inordinate delay in preferring the claim before the authorities as also the delay in filing the writ petition before this Court should, by themselves, persuade us to decline to interfere. Mr. Mishra has further submitted that the present respondents are not supposed to explain each day delay as one may say that it is too technical but out of two and half years, even one month delay has not been explained while approaching this Court, LPA/596/2007 18/39 JUDGMENT though the respondent has been appearing in other proceedings initiated by the present appellant. 16.Mr. Mishra has further submitted that the Learned Single Judge was not justified in not passing any order on the Civil Application claiming benefit as required under Section 17-B of the Industrial Disputes Act. For this purpose, he relied on the decision of the Hon'ble Supreme Court in the case of R. K. Nigam V/s. Swadeshi Cotton Mills and another, 2004 SCC (L & S) 195 wherein paragraph 5 of the judgment makes it mandatory while observing “in those circumstances, it was not proper for the High Court to deny wages accruing to the appellant from the date of award of the Labour Court.” Operative part of the order of the Hon'ble Supreme Court is set out hereunder :- “We find no substance in the contention advanced on behalf of the respondent and allow this appeal. We, therefore, set aside the order of the High Court to the extent it denies back wages contrary to the award of the Labour Court. Payment of wages will now have to be computed and paid from one month LPA/596/2007 19/39 JUDGMENT after the award before which the appellant should have been reinstated.” 17.Mr. Mishra further relies on the decision of the Hon'ble Supreme Court in the case of C. H. Saraiah V/s. Executive Engineer, 1999 (9) SCC 229 wherein it is held that the High Court has no jurisdiction to direct non-compliance of Section 17-B of the Act. He further relies on the decision of the Punjab & Haryana High Court reported in 2002 LLJ 16 wherein it is held that the amount paid under Section 17-B is for maintenance and there is no provision in this section that he could not claim the amount after the writ petition before the High Court was over. He further relies on the decision of the Kerala High Court reported in 2001 LIC 2002 wherein it is held that the workman are entitled for wages as required under Section 17-B even if there is a closure of the establishment. He further relies on the decision of this Court in the case of University Granth Nirman Board V/s. Udesinh Togaji Solanki, 2003 (1) GLH 628 wherein it is held that while LPA/596/2007 20/39 JUDGMENT considering the question of back wages for intervening period, the Labour Court or the Industrial Court has to consider as to whether the workman has been gainfully employed or not during the intervening period. Mr. Mishra further relies on the decision of the Hon'ble Supreme Court in the case of Workmen of Hindustan Vegetable Oil Corporation Limited V/s. Hindustan Oil Corporation Limited and others, 2000 (3) LLM 1075 wherein the Hon'ble Supreme Court has set aside the order under challenge to the extent it requires dismissal of the writ petition and Section 17-B application together and directed that 17-B application should be disposed of with great promptitude and before dismissal of the writ petition. He has, therefore, submitted that the impugned order and judgment passed by the Learned Single Judge is contrary to the law laid down by the Hon'ble Supreme Court as the Learned Single Judge without deciding the application for 17-B decided the main petition. 18.Mr. Mishra has further submitted that the Learned LPA/596/2007 21/39 JUDGMENT Single Judge was not justified in remanding the matter back just by ordering to pay sum of Rs.1,000/- to each of the workman particularly when several litigations as narrated above have been initiated by the workmen. The payment of petty sum of Rs.1,000/- cannot be said to be just and proper and would not meet the ends of justice in remanding the matter back to the Industrial Tribunal for adjudication. It is also not just and proper on the part of the Learned Single Judge to firstly admit the petition on 06.03.2007 and finally disposed of the same on 23.03.2007 without affording reasonable opportunity to tender the affidavit of more than 300 workers about the benefit available under Section 17-B of the Act. He has, therefore, submitted that the impugned order passed by the Learned Single Judge while exercising powers under Articles 226 & 227 of the Constitution of India deserves to be quashed and set aside and the award of the Industrial Tribunal, Rajkot ought to have been restored. LPA/596/2007 22/39 JUDGMENT 19.So far as the merit is concerned, Mr. Nanavati has submitted that the award was a nullity as the Tribunal has answered the matters which were not referred to the Tribunal against the industries which were not party before the Tribunal. The workmen went on an illegal strike while the workmen maintained that there was an illegal lock-out by the respondent Company. An illegal dispute was raised in that regard and Reference Order was issued as to whether the closure declared by the Company was legal and whether the workmen were entitled to wages till they were reinstated in service. He has further submitted that even from the pleadings of the appellant during the pendency of the petition being Special Civil Application 3988 of 2005, the workmen who were party to the Reference were not only the employees of the respondent Company but also employees of M/s. SRS Bearing Industries and SRS Engineering Industries. The respondent Company has raised a specific defence that the Company and the other two firms were separate and distinct legal entities and the respondent Company LPA/596/2007 23/39 JUDGMENT cannot be saddled with the liability in respect of the workmen employed by the firms, despite which and without examining the said facts, the reference came to be decided against the respondent Company. He has further submitted that the Industrial Tribunal specifically held that both the firms were part of the Company and that all the three had a singular existence and thus decided to reinstate all the workmen in service and to pay back wages and saddled the entire liability upon only the respondent Company. He has further submitted that the present appellant has specifically contended before the Learned Single Judge that the appellant Union raised charter of demands against all the three industries, i.e. respondent Company as well as the firms, despite which the Reference Order was made against the respondent Company alone. He has, therefore, submitted that the Learned Single Judge has rightly concluded that the charter of demands was addressed only to the respondent Company and the said demand does not refer to the two firms. He has further submitted that the Learned Single Judge also LPA/596/2007 24/39 JUDGMENT went on to observe that though no specific reference was made and though two firms were not party before the Tribunal, the Tribunal has recorded a specific