@)) IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 1200 of 2001 in SPECIAL CIVIL APPLICATION No 9316 of 1993 For Approval and Signature: HON'BLE MR.JUSTICE D.K.TRIVEDI and HON'BLE MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : YES Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- EMPLOYEES STATE INSURANCE SCHEME Versus DAMJIBHAI CHAKUBHAI PATEL -------------------------------------------------------------- Appearance: 1. LETTERS PATENT APPEAL No. 1200 of 2001 MR SP HASURKAR, AGP for Appellant MR TR MISHRA for Respondent -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE D.K.TRIVEDI and HON'BLE MR.JUSTICE K.M.MEHTA Date of decision: 28/01/2005 CAV JUDGEMENT (Per : HON'BLE MR.JUSTICE K.M.MEHTA) 1. The State of Gujarat, through the Employees State Insurance Scheme, through its Director of Medical Services, E.S.I. Scheme, Ahmedabad, appellant - original petitioner (herein after referred to as petitioner) has filed this appeal under clause 15 of the Letters Patent against the judgment and order dated 14.8.2001 passed by the learned single Judge in Special Civil Application No.9316 of 1993. The learned single Judge, by the impugned judgment and order, has partly allowed the petition filed by the petitioner. The learned Judge also modified the award dated 28.12.1992 passed by the Labour Court, Valsad, in Reference (LCV) No.1718 of 1990, to the extent that Damjibhai Chakubhai Patel - opponent original respondent (hereinafter referred to as respondent), Medical Officer in Ayurvedic Division, shall be entitled to 40% back wages for the period from 27.4.1989 till he is reinstated in service. The learned Judge confirmed the rest of the award and made the rule absolute to that extent and the interim relief granted earlier by the Court was vacated. 2. It may be noted that the tribunal by its award pleased to accept the reference of the respondent and pleased to hold that the order dated 27.4.1989 by which respondent was relieved from service be quashed and set aside and he is reinstated with full back wages from 27.4.1989 till he is reinstated and also awarded costs of Rs.200/- by his order dated 28.12.1992. 3. The relevant facts giving rise to this appeal are as under:- BACK GROUND OF THE MATTER:- 3.1 Petitioner appointed the respondent to the post of Ayurvedic Insurance Medical Officer, Class-II (Ayurvedic Division) on ad-hoc basis. Though order is dated 23.12.1983, the respondent commenced services from 29.12.1983. In the appointment order it was expressly stipulated that the services of the respondent were liable to be terminated either on completion of one year or the Government appoint any officer through Gujarat Public Service Commission, whichever is earlier. It may be noted that the appointment was absolutely on ad-hoc and the said can be terminated without giving any notice. 3.2 It may be noted that the post to which the respondent was appointed was a post of Ayurvedic Insurance Medical Officer, ESI Scheme. The said post fell within the purview of Gujarat Public Service Commission Recruitment (hereinafter referred to as "GPSC"). The said post is therefore required to be filled in by the GPSC. However, the petitioner is entitled to make temporary ad-hoc appointment to the said post for a period not exceeding one year or time till the regular candidate selected by GPSC becomes available. 3.3 It is the case of the petitioner that the respondent joined the duty on 29.12.1983, appointment was due to come to an end on 28.12.1984. Since the post was one of Medical Officer and patients who suffer, if there were to occur any vacancy in the post of the practice of the Directorate is to inquire of the incumbent of the post in advance whether the incumbent would want to continue in service and if so to apply in good time before the expiry on the period of appointment. The Director also receives performance report from the superior officer concerned. Following this practice, the petitioner was given fresh appointment for a period of six months in accordance with direction of the Government in that behalf. The second appointment was for period from 2nd January, 1985 to 1st July, 1985. Likewise on expiry of the said period of six months following the aforesaid practice the petitioner gave appointment to the respondent for a further period of six months from 3rd July, 1985 to 2nd January, 1986. In view of the same, appointment came to be end after the office hours on 2nd January, 1986. 3.4 As the respondent apprehended that his appointment may not be continued, the respondent filed Special Civil Application No.5 of 1986 before this Court on 2nd January, 1986. On that day, this Court issued notice and granted interim relief namely in that case the respondent (who is petitioner herein) was directed not to terminate the petitioner's service - (respondent herein) and further directed the respondents in that case to allow the petitioner to discharge his duties and to draw his salary regularly in this behalf. 3.5 It may be noted that in that case, pursuant to notice issued, one Mahendra J.Vaidya, Senior Medical Inspector in ESI, Ahmedabad has filed affidavit-in-reply dated 10th February, 1986, and pointed out to this court that somewhere in 1985, the department issued a report that the respondent was interested in other activities of the incharge officer and interference in every work and he was not co-operative in service, he was also involved in criminal proceeding and that his superior officer had to interfere in the matter and to get the proceedings withdrawn. In these circumstances, the petitioner decided not to give a fresh appointment to the respondent. The respondent was on leave for a few days in the last week but on 2nd January, 1986, which was last date of his appointment the respondent discharged his function till then. 3.5A It may be noted that the petitioner has also filed rejoinder somewhere in November 1986 in Special Civil Application No.5 of 1986 and controverted the facts set out by the Government in this behalf. He has reiterated that he has discharged his duties for a period exceeding 240 days in a calender year and his services can be terminated only in accordance with the provisions contained under the Industrial Disputes Act, 1947. He has also controverted the facts of the Government regarding working. He has stated that Performance Report made by his superior was in his favour and no fault was found with his performance by his superior in the past. 3.6 In view of the interim order of this Court, the respondent continued in service. However, matter reached for final hearing before this Court (Coram: R.C.Mankad & P.M.Chauhan, JJ.) on 30th March, 1987, when this Court passed the following order: "Mr.D.M.Thakkar, learned Counsel for the petitioner seeks permission to withdraw this petition as the petitioner desires to approach the competent authority by way of representation to continue him in service. He, however, prays that in order to enable the petitioner to approach the competent authority, ad-interim may be continued for a reasonable time. Permission to withdraw petition granted. Petition shall stand disposed of as withdrawn. Notice discharged. However, to enable the petitioner to make representation to the competent authority, ad-interim relief granted by this Court will continue to remain in operation for two weeks from to-day. It will be open to the petitioner to make representation to the competent authority to continue him in service and to make request to the said authority to continue him in service until his representation is decided. There shall be no order as to costs." 3.7 It appears that pursuant to the aforesaid order, the respondent made representation on 13th April, 1987, to the Director of Medical Services and he was continued in service. 3.8 When the aforesaid representation was pending, the respondent straightway filed a Writ Petition being No.1290/88 before the Hon'ble Supreme Court under Article 32 of the Constitution of India. The Hon'ble Supreme Court by its order dated 16th April, 1989, pleased to pass the following order: "Writ petition is dismissed. The respondents, however, will be at liberty to consider the case of the petitioner in case any future vacancy occur after giving him an opportunity to appear in the examination that may be held by the Gujarat Public Service Commission." 3.9 The State Government through Under Secretary, Health & Family Planning Department has passed the order dated 15th April, 1989, by which the Government has decided to appoint medical officers who are selected by GPSC and by that time the services of the respondent was sought to be removed on the ground that the respondent was not selected through GPSC. It may be noted that further orders was also passed on 27th April, 1989, by Incharge Medical Officer relieving the respondent from the service. 3.10 Being aggrieved and dissatisfied with the said action, the petitioner filed Special Civil Application before this Court being SCA No.4078 of 1989 on 22nd June, 1989. 3.11 Meanwhile, when the aforesaid petition was pending, the petitioner - respondent herein raised a substantive industrial dispute approached the Labour Court in June 1989 and, therefore, the aforesaid writ petition was disposed of by this Court on 17th January, 1990. 3.12 It may be noted that the order under sec.10(1)(c) of the I.D.Act was passed by the Labour Commissioner on 30th June, 1989, and dispute between respondent and petitioner were referred to Labour Court, Navsari. The Industrial Court, Ahmedabad, has also passed necessary orders in this behalf. PRESENT CONTROVERSY:- 3.13 Before the labour court, the respondent filed his statement of claim at Exh.7 and set out all the facts which I have stated earlier. 3.14 The petitioner herein who are opponent in the Labour Court also filed reply at Exh.11 and set out all the facts which I have stated earlier in this behalf. It was stated that the respondent was not a workman, his salary is fixed at Rs.2000-3500, he was a Class-II Gazetted Officer. He was also working as a Head of the Centre in Ayurvedic Insurance Division as Medical Officer. The provisions of BCSR Rules are applicable to him and the order passed by the High Court from time to time were also set out. The respondent also pointed out that the Supreme Court has also dismissed the petition filed by the respondent, so Labour Court has no jurisdiction. It was also stated that the appointment to the said post is made pursuant to the recommendation of the GPSC and his appointment was not made by GPSC and his appointment was only ad-hoc, he was relieved from the service by the department in this behalf. So Reference is not maintainable at law. 3.15 The claimant also examined at Exh.31 and gave his oral evidence. The department has also been examined by one Damjibhai Chakubhai Patel at Exh.31, who was Incharge Medical Officer. The parties filed a written submissions and other documentary evidence were also produced. LABOUR COURT - FINDINGS & AWARD:- 3.16 The Labour Court by its judgment and award dated 28th December 1992 passed in Reference Nos.1718/1990 pleased to hold that the respondent has worked for 240 days during the year. Respondent has worked from 15th April 1987 to 26th April 1989. The activity of the petitioner - appellant falls within the definition of 'Industry' and the respondent also falls within the definition of workman and, therefore, provisions of Industrial Disputes Act apply. In view of the same, the petitioner - appellant removed the respondent workman, notice as contemplated under Section 25F of the Industrial Disputes Act ought to have been given. As the said provisions have not been complied with, the order dated 27th April 1989, removing the respondent be quashed and set aside and the Labour Court directed that respondent should be reinstated in services and petitioner - appellant was directed to pay entire back wages to respondent from 27th April 1989, till he has been reinstated. 3.17 Being aggrieved and dissatisfied with the aforesaid judgment and order of the tribunal, the appellant filed Special Civil Application No.9316 of 1993 before this Court under Article 226 and 227 of the Constitution of India. In that petition, when the matter was placed for hearing before this Court (Coram: R.A.Mehta & B.J.Shethna, JJ.) on 2.12.1993 pleased to admit the matter and also granted interim stay of the impugned award and fixed the matter for final hearing on 20.12.1993. In that petition, the petitioner - present respondent had also filed affidavit that he was not employed anywhere. FINDINGS OF LEARNED SINGLE JUDGE:- 3.18 When the aforesaid matter was placed for hearing before this Court, on 14.8.2001 this Court by his judgment and order pleased to partly allow the petition of the petitioner - ESI Scheme and pleased to modify the award to the extent that the respondent shall be entitled to 40% of back wages for the period from 27.4.1989 till he is reinstated in service. The rest of the award remains intact. Rule made absolute to that extent and interim relief granted earlier was vacated. 3.19 Being aggrieved and dissatisfied with the said judgment and order of the learned Single Judge, the appellant herein filed Letters Patent Appeal being LPA No.1200 of 2001 before this Court somewhere in October, 2001. In that LPA, a civil application No.11984 of 2001 was also filed for the stay of the order of the learned Single Judge passed in Special Civil Application No.9316 of 1993 dated 14.8.2001 and this Court granted interim relief in the said civil application in terms of para 4(B) on 7.11.2001. Though the Division Bench on 28.11.2002 pleased to pass the order that the matter to be placed for final hearing board, the matter was not heard and ultimately the Division Bench on 13.10.2003 directed that while confirming the interim relief against grant of even 40% back wages, stay against reinstatement is vacated and the appellant was directed to reinstate the respondent workman on or before 1.12.2003. The Division Bench also directed that let the main LPA No.1200 of 2001 be posted for final disposal in the first week of July 2004. 3.20 We have been told that pursuant to the aforesaid order, the respondent had already joined services in the petitioner department. 3.21 In view of the aforesaid order/direction of the Division Bench, the LPA No.1200 of 2001 was placed for hearing before this Court. 4. Before the Division Bench of this Court, Mr.Hasurkar, learned Asst. Government Pleader appeared on behalf of the appellant - original petitioner State of Gujarat and Mr.T.R.Mishra, learned advocate appeared on behalf of the respondent workman. PRELIMINARY CONTENTION REGARDING MAINTAINABILITY OF LETTERS PATENT APPEAL RAISED BY MR T.R.MISHRA:- 5. Mr.T.R.Mishra, learned advocate for the respondent took preliminary objections that the present Letters Patent Appeal filed by the State of Gujarat is not maintainable at law as the LPA has been filed against the order of the learned Single Judge where the learned Single Judge has exercised the powers under Article 227 of the Constitution of India. He, therefore, submitted that the LPA filed by the State is not maintainable at law. In support of the same, he has relied upon Division Bench judgment of this Court in the case of ISHWARBHAI NAROTTAMBHAI PATEL VS. K.H.TRIVEDI AND OTHERS reported in 2003(3) GLR 1878. In para 12 the Division Bench has laid down the following principle regarding maintainability of the petition on page 1886 and 1887 as under: "...(i) Whether the petitioner has invoked jurisdiction of this Court under Art.226 or Art.227, if the learned Single Judge has exercised jurisdiction under Art.226, Letters Patent Appeal would be maintainable. (ii) If the judgment rendered by the learned Single Judge is in exercise of jurisdiction under Art.227 of the Constitution, Letters Patent Appeal would not be maintainable. (iii) If the Single Judge has not stated whether he has exercised his jurisdiction under Arts. 226 or 227 of the Constitution, it would be relevant to examine whether the proceeding in question is an original proceeding or the proceeding challenges the decision of a Tribunal. If the proceeding is original, the petition would obviously be under Art.226. If the petition challenges the decision of a Tribunal, further inquiry should ensue. The expression "Tribunal" would include within its ambit adjudicating bodies, provided they are constituted by the State and are invested with judicial, as distinguished from purely administrative or executive functions. The principal test of determining the character of the authority as Tribunal is whether that authority is empowered to exercise any adjudicating power of the State and whether the same has been conferred on it by any statute or a statutory rule. If the Tribunal or the Court has exercised judicial function of the State as explained in the decision of the Apex Court in State of Maharashtra v. Labour Law Practitioner's Association, 1998(2) GLR 1079 (SC) : AIR 1998 SC 1233 and the Tribunal or the Court is subordinate to the High Court within the meaning of Art.235 of the Constitution, then a presumption will be raised that the single Judge has exercised his jurisdiction under Art.227 of the Constitution. (iv) If the single Judge has not stated under which provision he has decided the matter and where the facts justify filing of petition both under Art.226 and Art.227 and the Court has decided the petition on merits, the Letters Patent Bench would consider whether substantial part of the order sought to be appealed against is under Art.226 or not. If it is found that the substantial part of the order sought to be appealed against is under Art.226, Letters Patent Appeal would be maintainable, but not otherwise. (v) If substantial part of the order sought to be appealed against is under Art.226, Letters Patent Appeal would not become non-maintainable merely because in the final order the single Judge has given ancillary directions which may pertain to Art.227." LEARNED AGP MR.HASURKAR'S REPLY TO THE PRELIMINARY CONTENTION REGARDING MAINTAINABILITY OF THE LETTERS PATENT APPEAL:- 6. Mr.Hasurkar, learned AGP stated that in this case, though the State Government had challenged the order of Tribunal, the real test is whether the learned Single Judge has exercised jurisdiction under Article 226 of the Constitution of India, or he has exercised jurisdiction under Article 227 of the Constitution of India. Herein, in this matter, the learned Single Judge when observed in the judgment that "respondent was subject to unequal treatment and hostile discrimination even as this matter was pending with an order for final hearing." . The learned Single Judge has clearly exercised jurisdiction under Article 226 of the Constitution of India. More particularly, when he has considered affidavit, which was submitted in the course of hearing the petition under Article 226/227 of the Constitution of India. Even while confirming the judgment of the learned Labour Court, he has further held that "service about 2 years is correctly found and held not be subjected to any conditions or stipulation." The learned Single Judge while holding that, termination of services of respondent amount to retrenchment, the learned Single Judge has not considered Clause (bb) of Section 2(oo) of the Industrial Disputes Act and because it contemplates that: "termination of service of workman as a result of non renewal of contract of employment between employer and workman concerned of its expiry or of such contract being terminated under stipulation on that behalf contended therein." 7. Mr.Hasurkar, learned AGP has stated that it is no doubt true that when the learned Single Judge was considering the award of the tribunal, the learned Single Judge exercised the powers under Art.227 of the Constitution of India. However, the learned Single Judge has considered the entire facts and circumstances of the case and thereafter the learned Single Judge has partly allowed the petition filed by the State while the learned Single Judge has confirmed the award of the tribunal so far as reinstatement is concerned, but as regards back wages, when the tribunal had granted 100% back wages, the learned Single Judge has reduced the back wages to 40%, at that time the learned Single Judge has exercised the powers under Article 226 of the Constitution of India and, therefore, in that case the learned Single Judge has exercised the powers both under Arts.226 and 227 of the Constitution of India and, therefore, appeal filed by the State is maintainable. 7.1 In support of the aforesaid submissions, learned AGP has relied upon the following decisions in this behalf: (1) In the case of Lokmat Newspapers Pvt.Ltd. Vs. Shankarprasad reported in (1999) 6 SCC 275 particularly on page 296 after relying the earlier judgment of the Apex Court in the case of Keshao Meshram vs. Radhikabai reported in 1986 Supp SCC 401 the court has observed as under: "The aforesaid decision squarely gets attracted on the facts of the present case. It was open to the respondent to invoke the jurisdiction of the High Court both under Articles 226 and 227 of the Constitution of India. Once such a 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 227) 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 the learned Single Judge." (2) In the case of Kanhaiyalal Agrawal and Others vs. Factory Manager, Gwalior Sugar Company Ltd. reported in (2001) 9 SCC 609 particularly para 6 on page 613 the Court has observed as under: "So far as the law on the matter is concerned, as to whether an appeal would lie against an order made in writ petition before the High Court challenging an order of the Labour Court, this Court in its decision in Lokmat Newspapers (P) Ltd. V. Shankarprasad ( (1999) 6 SCC 275 : 1999 SCC (L&S) 1090) stated that if a Single Judge exercises jurisdiction under Article 226, letters patent appeal would be maintainable, but if the jurisdiction is exercised under Article 227 it will not be maintainable. But with an explanation that if the Single Judge of the High Court in considering the petition under Article 226 or Article 227 does not state under which provision he has decided the matter and where the facts justify filing of petition both under Article 226 and Article 227 and a petition so filed is dismissed by the Single Judge on merits, the matter may be considered in its proper perspective in an appeal. This Court held as aforesaid in view of the decisions of this Court in Umaji Keshao Meshram v. Radhikabai (1986 Supp SCC 401), Ratnagiri Distt. Central Coop. Bank Ltd. v. Dinkar Kashinath Watve (1993 Supp(1) SCC 9) and Suhilabai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha ( 1993 Supp(1) SCC 11)." (3) In the case of Sharada Devi Vs. State of Bihar reported in AIR 2002 SC 1357 particularly para 9 on page 1359 the court observed as under: "A Letters Patent is the charter under which the High Court is established. The powers given to a High Court under the Letters Patent are akin to the constitutional powers of a High Court. Thus when a Letters Patent grants to the High Court a power of Appeal, against a judgment of a single Judge, the right to entertain the appeal would not get excluded unless the concerned statutory enactment excludes an appeal under the Letters Patent." 7.2 The learned AGP has relied upon Division Bench judgment of this