LPA/1205/2006 1/47 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1205 of 2006 In SPECIAL CIVIL APPLICATION No. 2113 of 2003 With CIVIL APPLICATION No. 11144 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA Sd/- HONOURABLE MR.JUSTICE K.A.PUJ Sd/- =================================== 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 ? =================================== DILIPBHAI MANEKLAL VYAS - Appellant Versus TORRENT POWER A.E.C. CO. - Respondent LPA/1205/2006 2/47 JUDGMENT =================================== Appearance : MR VIMAL M PATEL for Appellant. MR K B TRIVEDI, SENIOR ADVOCATE FOR M/S TRIVEDI & GUPTA for Respondent. =================================== 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. By way of this appeal filed under Clause 15 of the Letters Patent, the appellant – original petitioner has challenged the order dated 13.01.2006 passed by the Learned Single Judge in Special Civil Application No. 2113 of 2003 dismissing the said petition filed by the present appellant against the order dated 14.02.2003 passed by the Industrial Court in Revision Application No. 64 of 2001 setting aside the order dated 25.05.2001 passed by the Industrial Court in Appeal (IC) No. 01/1998 confirming the award application dated 28.11.1997 passed by the LPA/1205/2006 3/47 JUDGMENT Labour Court in T. Application No. 248/1992 directing the respondent to pay back wages to the appellant for the period from 13.04.1992 to 16.02.1994 and not interfering with the termination order of the appellant in view of the fact that the appellant was reinstated in service. 2. The brief facts giving rise to the present appeal are that the appellant was appointed vide an order dated 26.11.1990 as temporary Security Inspector with effect from 01.12.1990 till the completion of the work or 31.05.1991, whichever was earlier. The appellant was appointed after calling for personal interview and other procedure including medical examination. The said period was extended upto 31.12.1991 or till the completion of the work whichever was earlier, vide order dated 28.05.1991. Thereafter vide order dated 27.12.1991, the appellant was appointed as Security Inspector on probation for a period of six months with effect from 01.01.1992. The appellant was appointed on a permanent post and the services were time and LPA/1205/2006 4/47 JUDGMENT again extended by the respondent. 3. The respondent vide letter dated 13.04.1992 terminated the service of the appellant with immediate effect as per Clause 3 of the appointment order dated 27.12.1991. Being aggrieved by the said action of the respondent, the appellant filed T. Application No. 248 of 1992 in the month of June 1992 under the provisions of the Bombay Industrial Relationship Act, 1946 ('the Act' for short). Despite notice/summons being served on the respondent, nobody appeared on behalf of the respondent before the Labour Court to defend its case. Finally the Labour Court vide award dated 26.11.1992, had directed the respondent to reinstate the appellant with full back wages. Against the said award, being an ex-parte award, the respondent preferred Misc. Application No. 223 of 1993 for restoration of the T- Application No. 248 of 1992. In the said proceedings of Misc. Application No. 223 of 1993, the respondent submitted a purshis dated 16.03.1994 whereby it was agreed that subject to the rights and LPA/1205/2006 5/47 JUDGMENT contentions, the appellant be reinstated on duty. 4. Considering the said purshis, the Labour Court vide order dated 16.03.1994 set aside the order dated 26.11.1992 and restored T-Application No. 248 of 1992. Thereafter, vide order dated 18.03.1994, the respondent had reinstated the appellant clarifying that the issue of back wages for the period from 13.04.1992 to the date of order of reinstatement in service would be decided as per the judgment of the Labour Court in T-Application No. 248 of 1992. Pursuant to the said order, the service of the appellant was continued and in view of condition No.2 of the said order, the order of reinstatement was considered to be regular in nature. Thus, according to the appellant, the issue of back wages was only kept for decision of the Labour Court. 5. During the pendency of the said proceedings before the Labour Court, the appellant applied in the post of Security In-charge pursuant to a notice dated 09.05.1997 published by the respondent inviting LPA/1205/2006 6/47 JUDGMENT applications for the said post. The appellant was called for written test and oral interview by the respondent vide letter dated 13.06.1997. The appellant appeared for the written test and was orally interviewed by the respondent. The appellant was then selected and was appointed on probation vide letter dated 07.07.1997 in the post of Security In-charge and was ultimately confirmed vide order dated 29.12.1997 by the respondent, with effect from 01.01.1998 on the same terms and conditions as stated in the letter dated 07.07.1997. It was the case of the appellant that the appellant was confirmed in view of satisfactory work found by the respondent during the probationary period. 6. On 28.11.1997, the Labour Curt has passed an award directing the respondent to pay back wages to the appellant for the period from 13.04.1992 to 16.02.1994 and did not interfere with the order of termination in view of the fact that the appellant was reinstated in service. Being aggrieved by the said award, the respondent preferred appeal under LPA/1205/2006 7/47 JUDGMENT Section 84 of the Act. An application for ad-interim stay was granted by the Industrial Court vide order dated 21.01.1998 whereby the operation and implementation of the award dated 28.11.1997 was stayed pending hearing of the appeal. Despite the award being stayed, the service of the appellant was never terminated since the appellant was selected in the post of Security In-charge. However, the back wages were not paid to the appellant in view of the stay order. The Industrial Court, vide order dated 25.05.2001 had dismissed the appeal filed by the respondent. 7. The respondent thereafter preferred Revision Application No. 64 of 2001 inter alia praying for review of the order dated 25.05.2001 passed by the Industrial Court along with an application for stay. According to the appellant, in the said Revision Application, the respondent did not disclose the fact that the appellant was selected and confirmed in the post of Security In-charge. On the stay application, the Industrial Court vide order dated 20.07.2001 LPA/1205/2006 8/47 JUDGMENT stayed its own order dated 25.05.2001. In view of the said stay order, the respondent did not pay back wages and did not terminate the service of the appellant since the appellant was selected in the post of Security In-charge. In the said revision application, the concerned advocate representing the appellant did not remain present at the time of hearing. Even the appellant was not aware about the date of hearing because of which the case of the appellant was not represented and it was not argued out before the Industrial Court. After hearing the advocate for the respondent Company, the Industrial Court, vide order dated 14.02.2003, allowed the revision application and set aside the award dated 28.11.1997 passed by the Labour Court and reviewed the order dated 25.05.2001 passed by the Industrial Court and declared that the appellant was not entitled to any relief. 8. Pursuant to the order dated 14.02.2003 passed by the Industrial Court, the appellant was discontinued from service by the respondent vide letter dated LPA/1205/2006 9/47 JUDGMENT 27.02.2003. Being aggrieved by the said order dated 14.2.2003, the appellant filed Special Civil Application No. 2113 of 2003 before this Court. Simultaneously, another Special Civil Application No.2819 of 2003 was filed by the appellant challenging the letter dated 27.02.2003 whereby the appellant was dismissed from service. The said petition was dismissed by the Learned Single Judge of this Court vide order dated 23.06.2004 on the ground that the said petition was duplication of petition being Special Civil Application No.2113 of 2003. Thereafter, Special Civil Application No.2113 of 2003 was heard and the Learned Single Judge of this Court has dismissed the said petition vide order dated 13.01.2006. 9. It is this order which is under challenge in the present Letters Patent Appeal. 10.Notice was issued by this Court on 12.02.2006 and on the joint request of the parties, the appeal was taken up for final hearing. LPA/1205/2006 10/47 JUDGMENT 11.Before Mr. Vimal Patel, learned advocate appearing for the appellant makes his submission, Mr. K. B. Trivedi, 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. Trivedi, the appellant in the said petition, challenged the order dated 14.02.2003 passed by the Industrial Court (Gujarat), Ahmedabad in Review Application No.64 of 2001. The prayers made in the petition also invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India in as much as LPA/1205/2006 11/47 JUDGMENT the appellant – orig. petitioner did not pray for issuance of a writ of certiorari. 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 submissions, he relied on the following decisions :- (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. Trivedi has strongly urged that the present appeal deserves to LPA/1205/2006 12/47 JUDGMENT 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. Vimal Patel, learned advocate appearing for the appellant has submitted that the appellant has filed petition under Article 226 & 227 of the Constitution of India. The preamble of the petition clearly indicates that while filing the petition, the appellant has invoked the jurisdiction of this Court under the provisions of Article 226 read with Articles 14, 16 & 19 (1) (g) 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 LPA/1205/2006 13/47 JUDGMENT 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 that an appeal would be maintainable if the writ petition was filed under Article 226 & 227 of the Constitution of India as was held by this Court i.e. Supreme Court in Sushilabai Laxminarayan Mudliyar Vs. Nihalchand Waghjibhai Shah, (1993) Supp. 1 SCC 11. 14.So far as merits of the matter is concerned, Mr. Patel has submitted that the impugned order passed by the Learned Single Judge is absolutely illegal, unjust, arbitrary, contrary to material on record and against the settled propositions of law and inequitable. The order dated 14.02.2003 was passed by the Industrial Court without hearing the appellant LPA/1205/2006 14/47 JUDGMENT and the revision application was heard in absence of the advocate representing the case of the appellant. The said order passed by the Industrial Court is in breach of the principles of natural justice. He has further submitted that the Industrial Court had not committed any error warranting case for review of its own order and hence, while entertaining the revision application, the Industrial Court has committed serious error of law. Even the Learned Single Judge while dismissing the petition has not considered the facts in their proper perspective as the respondent had not come with clean hands and had not disclosed the material facts in the revision application. 15.He has further submitted that regarding selection and confirmation of the appellant in the post of Security In-charge subsequent to the order of termination which it could have been brought to the notice of the Industrial Court, the order dated 14.2.2003 would not have been passed by the Industrial Court. He has further submitted that LPA/1205/2006 15/47 JUDGMENT neither the Industrial Court nor the Learned Single Judge has considered that the appellant came to be selected as Security In-charge after succeeding in the written test and oral interview and performed satisfactory work during the probationary period. The appellant was, therefore, selected and confirmed in the post of Security In-charge and was in service subsequent to the termination order passed by the respondent. He has, therefore, submitted that it was not necessary either for the Industrial Court or for the Labour Court to go into the issue of validity of termination order except the issue of back wages for the period from 13.04.1992 to 18.03.1994. The Learned Single Judge has overlooked the fact that the appellant was given extension of time on temporary basis that he was working on a permanent post of Security In-charge only with a malafide motive to terminate the appellant from service. The Learned Single Judge has overlooked the fact that vide order dated 18.03.1994, the appellant was reinstated in service with the clarification that only the issue of payment of wages LPA/1205/2006 16/47 JUDGMENT and other benefits would be subject to the outcome of the judgment of the Labour Court in T-Application No. 248/1992. The parties to the proceedings also understood it in the same manner and it was only because of the reinstatement of the appellant, Misc. Application for restoration was allowed by the Labour Court and only determination of the back wages was left open to be decided between the parties. Before terminating the services of the appellant, the respondent did not issue any notice or conduct any inquiry though the appellant had completed 240 days. The termination order was, therefore, in violation of Section 25 (f) of the Industrial Disputes Act, 1947. He has further submitted that the appellant was selected and confirmed in the post of Security In-charge in respect of which reference was never pending and considering the length of service of the appellant, his age, non-availability of job elsewhere due to age bar, the case of the appellant ought to have been considered sympathetically, more so when the appellant was an Ex-service person having worked LPA/1205/2006 17/47 JUDGMENT for a period of about 15 years in the Indian Air Force as Sargent putting up meritorious service record with achievement in the form of two President Awards as Raksha Medal and Jammu Kashmir Medal. The respondent, under the guise of the order passed by the Industrial Court, has terminated the service of the appellant in the post of Security In-charge despite the fact that the T-Application was in respect of the termination of the appellant in the post of Security In-charge. He has, therefore, submitted that the action of the respondent in terminating the service of the appellant is malafide, unjust and amounts to abuse of process of the Court. 16.Mr. Patel has further submitted that there is no question of challenging the order of the Labour Court as the Labour Court has observed that the question of reinstatement does not arise. There is no declaration regarding setting aside the order of retrenchment which was passed and subsequent to which the appellant was restored in service. It is totally a misnomer to say that the appellant having LPA/1205/2006 18/47 JUDGMENT accepted the order of the Labour Court qua back wages, it is not possible to accept the contention that the appellant has been reinstated in service since there is no declaration of the Competent Court regarding setting aside the original order of retrenchment of the appellant from service. Even if it is so, the termination order would stand only up to the date when the appellant was selected and confirmed in the post of Security In-charge which was different to the post of Security Inspector and, therefore, the issue that would survive would only be regarding back wages from the date of termination till the date of reinstatement. Mr. Patel has further submitted that despite the provisions for review under the provisions of the Act, the principles of review laid down under Order 41, Rule 1 of Code of Civil Procedure would equally apply to the Industrial Court while exercising powers of review under the said Act. Even if it is assumed that the law on the subject regarding probationary is settled and that no inquiry is necessary for relieving a person who is on probation, the fact still remains that subsequent to LPA/1205/2006 19/47 JUDGMENT the termination, the appellant was again selected and confirmed in the post of Security In-charge after considering the application, written test, oral interview and performance of satisfactory work during probationary period. Even otherwise, before terminating the service, the respondent was required to give notice, one month pay and to conduct an inquiry in view of the fact that the appellant had completed 240 days in a preceding year from the date of termination. 17.Based on the aforesaid submissions, Mr. Patel has strongly urged that the impugned order passed by the Learned Single Judge while exercising his powers under Article 226 of the Constitution of India deserves to be quashed and set aside and that the order of the Industrial Court initially passed dismissing the appeal filed against the award of the Labour Court ought to have been restored. 18.Mr. K. B. Trivedi, learned Senior Counsel appearing for the respondent, on the other hand and without LPA/1205/2006 20/47 JUDGMENT prejudice to the preliminary contention with respect to maintainability of the appeal, has submitted on merits that the appellant has filed the petition essentially against the order of the Industrial Court. The Learned Single Judge of this Court vide order dated 23.06.2004 while dismissing the petition being Special Civil Application No.2819 of 2003 filed by the appellant observed that the appellant would be at liberty to challenge the order/communication dated 27.02.2003 before the Labour Court. He has, therefore, submitted that the challenge to the order/communication dated 27.02.2003 is a separate cause of action for which the appellant possesses statutory remedy and hence, the petition suffered from misjoinder of causes of action. Such a cause of action requires to be adjudicated upon by the Labour Court by leading oral as well as documentary evidence and not by this Court in exercise of its supervisory jurisdiction. If a statute confers a right and in the same breath provides for a remedy for enforcement of such right, it is a right as well as duty of the appellant to first avail such remedy. LPA/1205/2006 21/47 JUDGMENT A principle is laid down by the Hon'ble Supreme Court that bypassing of statutory remedy is not permitted and a writ petition should not be entertained when the statutory remedy is available. He has, therefore, submitted that the Learned Single Judge has rightly relegated the appellant to avail the remedy by order dated 23.06.2004. In support of this submission, he relied on the following decisions:- (1)A.P. Foods V/s. S. Samuel and others, (2006) 5 SCC 469 (2) Andhra Pradesh State Road Transport Corporation and Others V/s. G. Srinivas Reddy and others (2006) 3 SCC 674 (3) Chandrakant Tukaram Nikam V/s. Municipal Corporation of Ahmedabad and another (2002) 2 SCC 542 (4) The Premier Automobiles Ltd., V/s. Kamlekar Shantiram Wadke of Bombay and others (1976) 1 SCC 496 (5) Basant Kumar Sarkar and others V/s. Eagle Rolling Mills AIR 1964 S.C. 1260. 19.Mr. Trivedi has further submitted that the powers of LPA/1205/2006 22/47 JUDGMENT review conferred upon the Industrial Court under Section 95 of the Act are expressed in wide language so as to enable the Industrial Court to review its order for any sufficient reason. The appellant, while invoking jurisdiction of this Court under Article 227 of the Constitution of India, has failed to establish before the Learned Single Judge that the order dated 14.02.2003 passed by the Industrial Court is without jurisdiction or is beyond jurisdiction conferred upon the Industrial Court. This Court, in exercise of its supervisory jurisdiction is not called upon to examine the findings of fact arrived at by the Court. The decisions relied upon by the appellant before the Learned Single Judge pertain to the powers of review of a Civil Court under the provisions of Code of Civil Procedure. However, even otherwise clause “sufficient reason” fell for consideration of the Hon'ble Supreme Court whereby the Hon'ble Supreme Court has interpreted that the words “sufficient reason” are wide enough to include a misconception of fact or law by a Court or even an advocate. The review jurisdiction of the Industrial LPA/1205/2006 23/47 JUDGMENT Court being wider than the powers of the Civil Court under Order 47, decisions relied on behalf of the appellant are not applicable to the present case. For this purpose, he relied on the decision of the Hon'ble Supreme Court in the case of BCCI and another V/s. Netaji Cricket Club and others, (2005) 4 SCC 741. 20. Mr. Trivedi has further submitted that the Labour Court vide its order dated 28.11.1997 granted back wages for the period from 13.04.1992 to 16.02.1994 without granting reinstatement. The Industrial Court also in Appeal No. 1/98 confirmed the order of the Labour Court. He has, therefore, submitted that the appellant has been granted monetary relief whereas the relief of reinstatement has not been granted. The appellant did not have a declaration in his favour from any Court which entitles him to continue in service. 21.Mr. Trivedi has further submitted that the appellant has been terminated while serving as a probationer and being a probationer, the appellant does not LPA/1205/2006 24/47 JUDGMENT acquire any right. According to him, it is a settled legal principle that before termination of services of probationer for unsatisfactory work, no inquiry is necessitated. He has, therefore, submitted that discharge of the appellant from services during probationary period is just, legal and valid and it is not obligatory on the part of the respondent to hold inquiry before discharging the appellant. For this purpose, he relied on the following decisions :- (1)State of West Bengal V/s. Tapas Roy (2006) 6 SCC 453 (2) Rajasthan State Road Transport Corporation V/s. Zakir Hussain (2005) 7 SCC 447 (3) Municipal Committee, Sirsa V/s.Munshiram (2005) 2 SCC 382 (4) Pavanendra Narayan Verma V/s. Sanjay Gandhi PGI of Medical Sciences & Anr. AIR 2002 S.C. 23 (5) Shailaja Shivajirao V/s. President, Hon'ble Khasdar UGS Sanstha & Ors.,(2002) 10 SCC 394 (6) Ramkishan Bairwa V/s. Bundi Chittodgarh Kshetriya Gramin Bank & Anr. LPA/1205/2006 25/47 JUDGMENT 1993 (1) LLJ 986 (7) Unit Trust of India and others V/s. T.Bijaya Kumar Anr.