-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE LETTERS PATENT APPEAL NO.288 OF 1999 LETTERS PATENT APPEAL NO.288 OF 1999 LETTERS PATENT APPEAL NO.288 OF 1999 FROM FROM FROM WRIT PETITION NO.2801 OF 1988 WRIT PETITION NO.2801 OF 1988 WRIT PETITION NO.2801 OF 1988 A.G. Dhore & others ... ... Appellants Versus Vaccum Plant & Instruments Manufacturing Company Limited & anr. ... Respondents Mr.A.V. Bukhari for appellants. Mr.S.K.Talsania with Mr.Kiran Bapat i/by M/s.Haresh Mehta & Co. for respondent No.1. Respondent No.2 is a formal respondent. ----- W I T H WRIT PETITION NO.4125 OF 2003 WRIT PETITION NO.4125 OF 2003 WRIT PETITION NO.4125 OF 2003 A.G. Dhore & others. ... Petitioners Versus Vaccum Plant & Instruments Manufacturing Company Limited & anr. ... Respondents Mr.A.V. Bukhari for petitioners. Mr.S.K.Talsania with Mr.Kiran Bapat i/by M/s.Haresh Mehta & Co. for respondent No.1. Respondent No.2 is a formal respondent. ----- CORAM : H.L.GOKHALE & CORAM : H.L.GOKHALE & CORAM : H.L.GOKHALE & SMT.V.K.TAHILRAMANI, JJ. SMT.V.K.TAHILRAMANI, JJ. SMT.V.K.TAHILRAMANI, JJ. DATE OF RESERVATION OF JUDGMENT : DATE OF RESERVATION OF JUDGMENT : DATE OF RESERVATION OF JUDGMENT : 23.12.2004 23.12.2004 23.12.2004 -2- DATE OF PRONOUNCEMENT OF JUDGMENT:28th April 2005 DATE OF PRONOUNCEMENT OF JUDGMENT:28th April 2005 DATE OF PRONOUNCEMENT OF JUDGMENT:28th April 2005 JUDGMENT : (Per H.L. Gokhale, J.) JUDGMENT : (Per H.L. Gokhale, J.) JUDGMENT : (Per H.L. Gokhale, J.) 1. Respondent No.1-company is engaged in the manufacture of vacuum plants which are used in preparation of power transformers and motors amongst others and its main customers are stated to be government and semi-government organisations. In the year 1983, the company was stated to have faced stringent financial problems for various reasons including not receiving the payments from its clients in time. Respondent No.1 initially laid off some of its employees vide Notice dated 28th April 1983 and since there was no improvement, it retrenched some 93 employees after six months i.e. on 20th November 1983. 2. The Vacuum Plant Kamgar Sanghatana, a Union of employees, challenged the retrenchment on various grounds and demanded reinstatement with full back wages and continuity. That dispute was referred for adjudication of the Industrial Tribunal, Pune. The said Reference (IT) No.23 of 1984 came to be decided by the Industrial Tribunal at Pune vide its Award dated 27th March 1987. The Tribunal dismissed the said Reference by holding -3- amongst others that there were no violations of any law and that the retrenchment was neither mala fide nor unjustified. 3. The Union of employees filed Writ Petition No.2801 of 1988 invoking Article 227 of the Constitution of India to challenge the said Award. During the course of that petition, A.G. Dhore and others, the concerned employees, substituted themselves in place of the said Union. The petition came to be decided by a learned Single Judge of this Court by oral judgment dated 15th October 1998. The learned Judge accepted the submission of the employees that the retrenchment compensation paid to them was not correct since the lay off compensation paid earlier to them had been deducted therefrom by the 1st petitioner-Company and that the said deduction was illegal. He, therefore, held that there was violation of Section 25-F of the Industrial Disputes Act, 1947. The learned Judge, however, accepted the conclusion of the Tribunal that the retrenchment was a bona fide and justified one and that there was no malice or victimization. He, therefore, held that it would not be proper to grant the relief of reinstatement. He revived the -4- reference and remanded it back to the Tribunal to find out as to what would be the proper compensation / back wages payable to each of the 65 employees then contesting the matter. (The correct number should be 64). 4. It is this judgment and order of the learned Single Judge which is challenged by the appellants in the present appeal filed under Clause 15 of the Letters Patent of this Court. After looking into the totality of the circumstances and hearing the Counsel for respondent No.1-company, the said appeal was admitted by a Division Bench on 3rd November 1999. The 1st respondent raised the question of maintainability of the appeal. In Para-3 of the order passed while admitting the appeal, the Division Bench observed as follows:- We are not inclined to go into the maintainability of the appeal and therefore we keep the issue open to be argued at the final hearing of the appeal." The appellants applied for stay of the proceedings -5- on remand. That request was also turned down by the said Division Bench and it observed as follows in Para-2 of its order:- " In our view, it is not necessary to stay the continuation of the proceedings before the Industrial Court as the evidence recorded by the Industrial Court would actually be useful and material for considering the reliefs, if any, to be granted in this appeal itself." 5. As noted above, although the Letters Patent Appeal was admitted, the Division Bench did not stay the revived proceedings before the Industrial Tribunal. The Tribunal proceeded with the revived reference and gave its Award on 3rd May 2000 wherein it directed the 1st respondent-company to pay each of the 64 employees lay off compensation as mentioned in that Award. The Tribunal further directed the company to pay in addition 12 months’ wages (basic plus dearness allowance) on the basis of the last drawn salary as on the date of their retrenchment i.e. 23rd November 1983 in lieu of reinstatement and full back wages. It is the case of the 1st -6- respondent-company that some 34 of its employees have received the amounts as per the directions of the Tribunal and have issued the necessary receipts in full and final settlement of their claims very recently. The appellants-employees have preferred a separate writ petition bearing No.4125 of 2003 to challenge the said Award of the Tribunal. 6. This second writ petition is, of course, without prejudice to the submissions of the employees in their Letters Patent Appeal. The submission of the employees in the Letters Patent Appeal is that the order of the learned Single Judge is erroneous and ought to be interfered with in the Letters Patent Appeal. It is the contention of the employees that since the learned Single Judge held that the retrenchment was bad in law, he ought to have granted the employees reinstatement with full back wages and ought not to have remanded the matter for the limited purpose of appropriate wages and compensation. In the event, however, if this Hon’ble Court does not interfere with the order passed by the learned Single Judge, then the order passed by the Tribunal subsequently on 3rd May 2002 on remand be -7- interfered with since the same is erroneous and does not grant them correct wages / compensation as directed by the learned Single Judge. This second petition is filed under Articles 226 and 277 of the Constitution and apart from seeking to quash the Award dated 3rd May 2002, it seeks a writ of mandamus directing the 1st respondent-company to reinstate all the petitioners with full wages, continuity of service and consequential reliefs. 7. As against these submissions of the employees, the principal submission of the 1st respondent-company is that the Letters Patent Appeal itself is not maintainable since earlier Writ Petition No.2801 of 1988 was filed invoking only Article 227 of the Constitution of India. Its submission is that the proceeding under Article 227 is not an original proceeding and, therefore, an appeal under Clause 15 of the Letters Patent is not available against the order passed in such a proceeding. That apart, the 1st respondent’s defence is that the order passed by the learned Single Judge is a correct and appropriate one. It is submitted that the order passed by the learned Single Judge has already -8- worked out itself since the Tribunal has decided the issues consequent upon the remand and that 34 out of 64 employees have already received the amounts as per that Award in full and final settlement. Undoubtedly, the 1st respondent defends the Award of the Industrial Tribunal on remand and it is submitted that in the facts and circumstances of the case, the compensation awarded by the Tribunal is the correct one and no further amount ought to be awarded. It is further submitted that the yardstick applied by the Tribunal is correct and there should not be any interference. 8. When the aforesaid second writ petition bearing No.4125 of 2003 came up for admission before a learned Single Judge, he made a reference to the order passed by the Division Bench while admitting LPA No.288 of 1999. The learned Judge noted that the Division Bench while admitting the appeal on 18th November 1999, had not stayed the revived proceeding and had observed that the evidence recorded by the Industrial Tribunal would actually be useful and material for considering the reliefs, if any, to be granted in the appeal. Having noted these circumstances, the learned -9- Single Judge admitted Writ Petition No.4125 of 2003. 9. As stated above, the Division Bench while admitting the LPA had observed that the evidence recorded by the Industrial Tribunal on remand would actually be useful in considering the reliefs to be granted in the appeal. The Counsel for the employees applied that Writ Petition No.4125 of 2003, which was pending before the learned Single Judge, be heard along with LPA No.288 of 1999. The Acting Chief Justice, by an order passed on 25th November 2004, directed that Writ Petition No.4125 of 2003 be heard along with Letters Patent Appeal No.288 of 1999. Accordingly, both the LPA as well as the writ petition are heard and decided together. Mr.Bukhari has appeared for the appellants / petitioners-employees, whereas Mr.Talsania and Mr.Bapat have appeared for respondent No.1-company. Respondent No.2 being a Member of the Tribunal is a formal party. 10. Before we deal with the merits of the LPA as well as the writ petition, we have to deal with the preliminary objection raised by the 1st -10- respondent with respect to the maintainability of the Letters Patent Appeal. It is contended on behalf of the 1st respondent that inasmuch as Writ Petition No.2801 of 1988 was filed under Article 227 of the Constitution of India, the same invoked the revisional jurisdiction of this Court and under Clause 15 of the Letters Patent, an appeal is not available against any such revisional order. The appeal is available only against an original order passed by a learned Single Judge. As against this, the submission of the appellants is that although Writ Petition No.2801 of 1988 invoked Article 227 of the Constitution of India, one must see as to what were the averments, grounds and the prayers in the said writ petition. It is submitted that if one looks at them, it will be seen that it was a petition, in essence, invoking Article 226 of the Constitution also. 11. It is submitted on behalf of the 1st respondent that Writ Petition No.2801 of 1988 clearly invoked only Article 227 as can be seen from the title of the petition. Not only that but Article 227 alone was referred in Para-15 of the petition which sets out various grounds of challenge. Para-16 containing the jurisdiction -11- clause as also Para-6 of the rejoinder filed by the employees before the learned Single Judge, affirmed in July 1980 invoked only Article 227. The impugned judgment of the learned Single Judge also mentioned in the very first paragraph thereof that this was a petition under Article 227 of the Constitution of India arising out of the Award dated 27th March 1987 passed by the Industrial Tribunal, Pune. It is, therefore, submitted that the understanding of the appellants was clear viz. that it was a petition under Article 227. This petition was answered by the respondents and decided by the learned Single Judge also with the clear understanding that it invoked only Article 227. 12. As against this, it is submitted on behalf of the appellants-employees that although the learned Single Judge does refer to begin with that what he was deciding was a petition under Article 227, he had not stated under which provision he was deciding the matter. It is further submitted on behalf of the employees that in Para-5 of the petition, it is stated that mandatory provision of Section 25-F of the Industrial Disputes Act had not been complied with. In Para-10 it was contended that the Tribunal had committed gross -12- error apparent on the face of the record in not considering the exact number of the employees and it showed non-application of mind. In Para-11 of the petition, it is claimed that the Tribunal failed to do justice. In Para-12, it is submitted that the Tribunal has failed to exercise the jurisdiction vested in it and has ignored that the employer has committed breach of Section 25-H of the Industrial Disputes Act. At the end of Para-13 of the petition, it is contended that the trial Court has committed an error apparent on the face of the record in concluding that the employer has complied with Section 25-F of the I.D. Act. It is submitted that in Para-14 a contention is raised that the Tribunal has acted with material irregularity. In Para-15 of the petition, various grounds are raised and there is a specific mention of writ of certiorari. Lastly, our attention is drawn to the prayer clauses and it is submitted that in prayer clause (a) there is a specific prayer for the writ of certiorari and setting aside of the impugned Award. In prayer clause (b), there is a prayer for mandamus to reinstate 93 retrenched workers. It is, therefore, submitted that although Article 226 is not specifically mentioned, the same is very much writ -13- large on the writ petition and the petition ought to be considered as one under Articles 226 as well. It is further submitted that although the impugned judgment and order of the learned Single Judge begins by saying that he was deciding a petition filed under Article 227, the same ought to be treated as one dealing with the prayers under Article 226 of the Constitution of India. 13. The learned Counsel for both the parties placed heavy reliance on some of the leading judgments holding the field on this question viz. (i) Umaji Keshav Meshram vs. Radhikabi reported Umaji Keshav Meshram vs. Radhikabi reported Umaji Keshav Meshram vs. Radhikabi reported in AIR 1986 S.C. 1272, (ii) Lokmat Newspapers in AIR 1986 S.C. 1272, (ii) Lokmat Newspapers in AIR 1986 S.C. 1272, (ii) Lokmat Newspapers Pvt.Ltd. vs. Shankarprasad reported in (1999) 6 Pvt.Ltd. vs. Shankarprasad reported in (1999) 6 Pvt.Ltd. vs. Shankarprasad reported in (1999) 6 SCC 275, (iii) Kanhaiyalal Agarwal vs. Factory SCC 275, (iii) Kanhaiyalal Agarwal vs. Factory SCC 275, (iii) Kanhaiyalal Agarwal vs. Factory Manager, Gwalior Sugar Co. Ltd. reported in Manager, Gwalior Sugar Co. Ltd. reported in Manager, Gwalior Sugar Co. Ltd. reported in (2001) 9 SCC 609, (iv) Ratnagiri District Central (2001) 9 SCC 609, (iv) Ratnagiri District Central (2001) 9 SCC 609, (iv) Ratnagiri District Central Co-operative Bank vs. Dinkar Kashinath Watve Co-operative Bank vs. Dinkar Kashinath Watve Co-operative Bank vs. Dinkar Kashinath Watve reported in (1993) Supp. 1 SCC page 9, (v) reported in (1993) Supp. 1 SCC page 9, (v) reported in (1993) Supp. 1 SCC page 9, (v) Sushilabai Mudliar vs. Nihalchand reported in AIR Sushilabai Mudliar vs. Nihalchand reported in AIR Sushilabai Mudliar vs. Nihalchand reported in AIR 1992 SC 185 and (vi) Mangalbhai vs. Radheshyam 1992 SC 185 and (vi) Mangalbhai vs. Radheshyam 1992 SC 185 and (vi) Mangalbhai vs. Radheshyam Agarwal reported in 1993 Maharashtra Law Journal Agarwal reported in 1993 Maharashtra Law Journal Agarwal reported in 1993 Maharashtra Law Journal 567. 567. 567. Reliance was also placed on a Division Bench judgment of this Court in the case of Madhukar Madhukar Madhukar Mohite vs. Balkrishna Sulakhe Mohite vs. Balkrishna Sulakhe Mohite vs. Balkrishna Sulakhe reported in 101(3) 101(3) 101(3) -14- 1999 BLR page 824. 1999 BLR page 824. 1999 BLR page 824. We will deal with the propositions emerging therefrom one by one. 14. The leading case laying down the law on this aspect is Umaji Keshao Meshram & others vs. Umaji Keshao Meshram & others vs. Umaji Keshao Meshram & others vs. Smt.Radhikabai & anr. reported AIR 1986 SC 1272 Smt.Radhikabai & anr. reported AIR 1986 SC 1272 Smt.Radhikabai & anr. reported AIR 1986 SC 1272. Para-2 of that judgment (Per Madon, J.) clearly records the question which fell for determination in that appeal before the Apex Court which was as follows:- " Whether an appeal lies under Cl.15 of the Letters Patent of the Bombay High Court to a Division Bench of two judges of that High Court from the judgment of a single Judge of that High Court in a petition filed under Art.226 or 227 of the Constitution of India? " In para-9 of that judgment, the Court analysed this Clause 15 and broke it into different parts. This para-9 reads as follows:- " 9. When analysed and broken up into its component parts Cl.15 in its finally amended and operative form reads -15- as follows: (1) from a judgment (2) of one Judge of the High Court (3) pursuant to S.108 of the Government of India Act of 1915 (4) not being - (a) a judgment passed in the exercise of appellant jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court, (b) an order made in the exercise of revisional jurisdiction, (c) a sentence or order passed or made in the exercise of the power of superintendence under the provisions of S.107 of the Government of India Act 1915, or (d) a sentence or order passed or made in the exercise of criminal jurisdiction. " 15. Thereafter the Court dealt with the historical developments with respect to the powers under this clause and various judgments thereon and in para-98 came to the following conclusion:- -16- "98. From what has been said above it must follow that when a single Judge of a Chartered High Court decides a petition under Article 226 or 227, his judgment is one given pursuant to Article 225 of the Constitution and is appealable under Clause 15 of the Letters Patent unless it falls within one of the excluded categories. " Thereafter in para-99 the Court dealt with the scope of the Articles 226 and 227 and observed as follows:- "99. ..... These two Articles stand on an entirely different footing. As made abundantly clear in the earlier part of this judgment, their source and origin are different and the models upon which they are patterned are also different. Under Article 226, the High Courts have power to issue directions, orders and writs to any person or authority including any Government. Under Article 227 every High Court has the power of superintendence -17- over all Courts and Tribunals throughout the territory in relation to which it exercises jurisdiction. The power to issue writs is not the same as the power of superintendence. By no stretch of imagination can a writ in the nature of habeas corpus or mandamus or quo warranto or prohibition or certiorari be equated with the power of superintendence. " Then it further observed as follows:- " Though at the first blush it may seem that a writ of certiorari or a writ of prohibition partakes of the nature of superintendence inasmuch as at times the end result is the same, the nature of the power to issue these writs is different from the supervisory or superintending power under Article 227. The powers conferred by Articles 226 and 227 are separate and distinct and operate in different fields. The fact that the same result can at times be achieved by two different processes does not mean that these two processes are the same. " -18- In the light of this discussion, the Court concluded in para-100 that the series of decisions of Apex Court have also firmly established that proceeding under Article 226 is an original proceeding, whereas it held in para-102 that it is equally well settled in law that the proceeding under Article 227 is not an original proceeding. 16. Finally, the Court held in para-103 as follows:- " 103. Under Clause 15 of the Letters Patent of the Bombay High Court no intra-Court appeal lay against an "order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act". By the same process of interpretation by reason of which the phrase "pursuant to Section 108 of Government of India Act" in Clause 15 is to be read as "pursuant to Article 225 of the Constitution of India", the phrase "order passed or made in the exercise of the power of superintendence under the -19- provisions of Section 107 of the Government of India Act" is to be read as "order passed or made in the exercise of superintendence under the provisions of Article 227 of the Constitution". The result is that an intra-Court appeal does not lie against the judgment of a single Judge of the Bombay High Court given in a petition under Art.227 by reason of such appeal being expressly barred by Clause 15 of the Letters Patent of that High Court." 17. Thus, the Apex Court clearly held that whereas an intra-court appeal against the judgment of the single Judge in a petition under Article 226 is not barred, Clause 15 itself bars an intra-court appeal against the judgment of the single Judge in a petition under Article 227. This is a conclusion drawn at the end of para-105. Thereafter the Court noted in para-106 that petitions are filed at times both under Articles 226 and 227 of the Constitution and the question is as to whether an appeal would lie from the decision of the single Judge in such a case. It is the observations of the Apex Court on this question which are material for our purpose and -20- they are as follows:- " 106. ..... In our opinion, where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution, and the party chooses to file his 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 under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226. " 18. Thus, as can be seen from what is recorded above, the judgment clearly lays down that when a judgment is rendered by a single Judge in a petition under Article 226, there is no difficulty in entertaining an intra-court appeal. Similarly -21- where a judgment is rendered on a petition under Article 227, an intra-court appeal is squarely barred. It is, however, when the petitions are filed invoking both these Articles that the Apex Court observed that when facts justified a party in filing such an application invoking both these Articles, the Court ought to treat such an application as one under Article 226 in fairness and justice to such a party and in order not to deprive him of his valuable right of appeal. This will be so even if in deciding the matter in the final order, the Court has given an ancillary direction which may pertain to Article 227.