Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5854 OF 2009
(Arising out of SLP(C) No. 29303/2008)
Ashok K. Jha & Ors. …Appellants
Versus
Garden Silk Mills & Anr. …Respondents
JUDGEMENT
R.M. Lodha, J.
Leave granted.
2. Two questions that arise for consideration in this
appeal by special leave are:
(1) Whether transfer of the 31 employees (appellants)
from Crimping Department to Twisting Department by the
respondent – employer tantamounts to change in respect
of matter specified in item nos. 1 and 2 of Schedule II
necessitating notice under Section 42(1) of the Bombay
Industrial Relations Act, 1946?
(2) Whether Letters Patent Appeal under Clause 15 of
the Letters Patent was maintainable from the
judgment and order dated October 1, 2007 passed by
the learned single Judge in Special Civil Application
No. 21828/2006?
3. We may briefly notice the relevant facts first.
Garden Silk Mills Ltd. – respondent (hereinafter
referred to as, “employer”) have their mills at
Vareli,Taluka Palsane, District Surat. The mills
have many departments including Crimping
Department and Twisting Department which are
located in the same campus. The appellants
(hereinafter referred to as, “employees”), prior to
May 3, 1996, were working as Crimping Operators
in the Crimping Department. Initially on May 3,
1996, these employees were informed that they
have been transferred to Twisting Department and
they must henceforth do their duties in that
department. The employees did not join their
duties in the Twisting Department and, accordingly,
the employer issued written order on May 4, 1996
to these employees individually intimating them that
their services have been transferred from Crimping
2
Department to Twisting Department. In the transfer
order, it was clarified that there is no change in
their service conditions; they will continue to receive
same pay scale and all other benefits which they
have been getting while working in the Crimping
Department.
4. The employees sent request letter under Section
42 (4) of the Bombay Industrial Relations Act, 1946 (for short,
“BIR Act”) to the employer requesting them to withdraw the
transfer order dated May 4, 1996. The employees also
requested the employer to place them at original post in the
Crimping Department.
5. On May 9, 1996, the employer sent a reply to the
request letter and reiterated that by transfer from Crimping
Department to Twisting Department, there has been no change
in their service conditions. The employer expressed its
inability to withdraw the transfer order. The employer also
warned the employees if they did not resume their duty in the
Twisting Departing as Twister, an endorsement, “refused to
work” would be made in the muster roll.
3
6. The employees then approached the Labour Court
by making an application under Sections 77 and 78 of the BIR
Act. According to the employees, they have been working as
operators in Crimping Department and they are not conversant
to run the twisting machines and by transferring them from
Crimping Department to Twisting Department, there is total
change in the type of their work. They averred that by
transferring them from Crimping Department to Twisting
Department, the employer has permanently decreased the
strength of the Crimping Department and consequential
increase in the Twisting Department. The employees alleged
that their transfer by the employer tantamounts to change in
respect of matter specified in items nos. 1 and 2 of Schedule II
of the BIR Act and, therefore, notice of change under Section
42(1) was required to be given and the prescribed procedure
must have been necessarily followed.
7. Yet another application challenging the orders of
transfer was made by the Surat Silk Mills Labour Union,
representative union, before the Labour Court, Surat.
4
8. The employer contested both applications on
diverse grounds. Inter alia, it was stated that there is no
change in respect of service conditions, pay scale, benefits,
designation and type of work as well as continuity of service by
transfer of these employees from Crimping Department to the
Twisting Department. The employer denied that their action of
transferring the employees was covered by item nos. 1 and 2 of
Schedule II but, according to them, their action is covered
under item 2 of Schedule III of the BIR Act.
9. It is not necessary to refer to the first round of
litigation as the matter was ultimately remanded to the Labour
Court for fresh consideration. Before the Labour Court, the
parties led documentary evidence but did not lead any oral
evidence.
st
10. The 1 Labour Court, Surat disposed of both
applications by a common order dated September 6, 2001. In
st
its order, 1 Labour Court recorded a finding that the
employees had failed to prove that the employer had made
change in relation to item nos. 1 and 2 of Schedule II. This is
st
what the 1 Labour Court held:
5
“…… it has been held that the applicant has not been
able to prove that transfer of workmen has been
resulting into strength in crimping department and
increase in the strength of twisting department. In
such circumstances, application has not been able to
prove that opponent has made change in relation to
items of Schedule 2 namely item no. 1 and 2. It has
been held that opponent has not made any type of
illegal change whatsoever and, therefore, it is held
that the applicant is not entitled to any of the reliefs as
prayed for in OT Application No. 22/96 and OT
Application No. 26/96.
Further, it is also required to be noted that as
regards relief no. 2 and 3 in OT Application No. 26/96
sought by the applicant, prayer made is that by
ordering for workload to run more than 25 machines
and altering wages of the applicants, there has been
illegal change effected by the opponent but no such
fact has been established by the applicant which has
been discussed in this matter in para 11 earlier.
In all the aforesaid circumstances and for the
reasons in this matter as discussed as a whole, the
applicant has failed in establishing that the opponent
has made illegal change and, therefore, it is held that
the opponent has not made any type of illegal
change…….”
st
11. Aggrieved by the order of the 1 Labour Court dated
September 6, 2001, the employees and the union preferred a
joint appeal under Section 84 of BIR Act before the Industrial
Court, Surat.
12. The Industrial Court did not agree with the findings
st
of the 1 Labour Court in its order dated March 9, 2006. It held:
“… In the present case, no evidence is produced on
record to show whether any strength of workmen with
crimping department or twisting department is
6
decided or not; or no agreement if any in this respect
has been produced. The appellants could have been
able to produce corroborative evidence in respect of
the number of permanent workmen by getting
produced the muster roll maintained by the opponent
in respect of Crimping Department and Twisting
Department for the situation prevailing before
4.5.1996 and thereafter. However, the appellants
have not produced any oral as well as documentary
evidence in respect of number of permanent workmen
working in the Crimping Department or Twisting
Department and, therefore, the submission of the
present appellants that there will be decrease in
number of workmen in Crimping Department and
increase in the number of workmen in Twisting
Department, cannot be proved. The aforesaid finding
which is given by the Labour Court is contrary and
false to the documentary evidence on record. As I
have stated hereinabove, the workmen concerned
with both the aforesaid applications have been
transferred vide written order from Crimping
Department to Twisting Department. There is no
dispute between the parties in that respect. If 31
workmen of Crimping Department are to be
transferred to Twisting Department, then in one
department there will be decease in number of
workmen and increase in number of workmen in other
department. In that respect, there is no need to
make counting as to how many total workmen were
there in Crimping or Twisting Department. By way of
aforesaid transfer, there is permanent decrease in
number of Crimping operators in the Crimping
Department. It is said permanent because it is not the
say of the company that on transfer of these workmen
from Crimping Department, the workmen of other
departments will be appointed on these posts by way
of transfer. If there was a counter exchange of
workmen of Crimping Department and Twisting
Department, then the basic defence taken by the
management that we have done assignment of work
and transfer of works within the establishment i.e. to
entrust work in the factory to workmen; to transfer
them; would have been proper and this would have
fallen in item no. 2 of Schedule-III for which no notice
under Section 42(1) is necessary. Thus, the finding
given by the Labour Court that the act of management
7
falls under Item No. 2 of Schedule-III is false and
erroneous. If the management has said that our act
is not included in Item Nos. 1 and 2 of Schedule-II
then it is the duty of the Management to show before
the Court as to the number of total workmen of the
Twisting and Crimping Department. Instead of this, it
has been held that the burden is on the appellants, is
not proper. ……
In the case before the Labour Court, the
Management has transferred 31 workmen from
Crimping Department to twisting Department. In that
respect there is no dispute between the parties. Even
there is no defence of the respondent that we have
transferred 31 workmen from Crimping Department to
Twisting Department and from Twisting Department to
Crimping Department. If it was the case of only
counter exchange, then the case of appellants would
not have fallen under Item Nos. 1 and 2 of Schedule –
II and the contention raised by the respondent i.e.
company, that the matter with respect to entrusting
the work to workmen and transferring them, falls
under Item No. 2 of Schedule-III, could have been
accepted. Thus, the Labour Court has believed the
authority cited by Shri Chaudhari as correct one. But
the Labour Court has held that the appellant union
has not been able to prove that there is decrease in
number of workmen Crimping Department. When
there is no dispute between the parties at the time of
transfer of 31 workmen of one department to another
Department, there is no need for the Union to prove
the decrease in number of workmen. Thus, the
finding recorded by the Labour Court is in fact
erroneous….”
13. The Industrial Court, Surat set aside the order of
st
the 1 Labour Court and directed the employer to withdraw the
orders of transfer dated May 4, 1996 and to entrust to the
employees, work of the original post.
8
14. The employer challenged the order of the Industrial
Court by filing a petition (Special Civil Application) under
Articles 226 and 227 of the Constitution before the High Court
of Gujarat. The learned Single Judge dismissed the petition on
October 1, 2007 holding thus:
“…The Industrial Court has rightly considered the
difference between Schedule II and III item Nos. 1
and 2 of Schedule-II and Item No. 2 of Schedule-III
and find out the real intention of the employer and
come to the conclusion that it is not merely a transfer
of 31 employees but, an intention of the employer to
reduce the strength from crimping department and
increase the strength in twisting department which fall
within Item Nos. 1and 2 of Schedule-II of the act
which requires notice of change, which is not given
and, therefore, it amounts to illegal change.”
15. Aggrieved by the order of the learned Single Judge,
the employer preferred Letters Patent Appeal under Clause 15
of the Letters Patent before the Division Bench. The Division
Bench, after hearing the parties found the appeal meritorious
and by its order dated May 14, 2008, allowed the appeal and
set aside the judgment and order of the learned Single Judge.
The Division Bench also set aside the judgment and order
passed by the Industrial Court, Surat and restored the judgment
and order dated September 6, 2001 passed by the Labour
Court, Surat.
9
Re: Question (1)
16. Clause (18) of Section 3 defines “Industrial matter”
to mean “any matter relating to employment, work, wages,
hours of work, privileges, rights or duties of employers or
employees or the more, terms and conditions of employment.”
17. Section 42(1) which is relevant for consideration of
this question reads thus:-
“Section 42 – Notice of change
(1) Any employer intending to effect any change in
respect of an industrial matter specified in Schedule II
shall give notice of such intention in the prescribed
form to the representative of employees. He shall
send a copy of such notice to the Chief Conciliator,
the Conciliator for the industry concerned for the
local area, the Registrar, the Labour Officer and such
other person as may be prescribed. He shall also
affix copy of such notice at a conspicuous place on
the premises where the employees affected by the
change are employed for work and at such other
place as may be directed by the Chief Conciliator in
any particulars case.”
(2) ……
(3) …..
(4) ….”
18. Section 46(4) provides that no employer shall make
any change in any industrial matter mentioned in Schedule II
before giving notice of change as required by the provisions of
sub-section (1) of Section 42 and any change made in
10
contravention of the provisions of sub-Section (1), (2) of (3)
shall be illegal.
19. Item 1 of Schedule II reads: “ Reduction intended
to be of permanent or semi-permanent character in the
number of persons employed or to be employed in any
occupation or process or department or departments or in a
shift not due to force majeure.”
20. Item 2 of Schedule II refers to: “Permanent or semi-
permanent increase in the number of persons employed or to
be employed in any occupation or process or department or
departments.”
21. Item 2 of Schedule III reads: “ Assignment of work
and transfer of workers within the establishment.”
22. A close look at the Item Nos. 1 and 2 of Schedule II
and Item 2 of Schedule III would show that insofar as
assignment of work and transfer of workers within the
establishment is concerned, the subject is precisely and
specifically covered by Item 2 of Schedule III. The expression,
‘assignment of work and transfer of workers within the
establishment’ is plain and admits of no ambiguity. If the
11
orders of transfer are of the description mentioned in item 2 of
Schedule III, item 2 of Schedule III must come into full play.
Item nos. 1 and 2 of Schedule II operate altogether in a
different field. Basically, Items 1 and 2 of Schedule deal with
II
reduction in the number of persons employed or to be
employed in any occupation or process or department or
departments or in a shift or permanent or semi permanent
increase in the number of persons employed or to be employed
in any occupation or process or department or departments.
A mere transfer of workers within the establishment would not
attract Item Nos. 1 and 2 of Schedule II but would be covered
by Item 2 of Schedule III as there is a specific item in this
regard. A specific item would exclude the items of general
character and, in that view of the matter, in the matters of
transfer of workers within the establishment and assignment of
work by the employer, the specific Item 2 of Schedule III is
attracted.
23. The orders of transfer dated May 4, 1996 apparently
make it clear that there is no change in the service conditions of
the workers viz. the workers continue to enjoy same pay scales,
12
rights and benefits flowing from service and the type of work
also remains the same. The only thing that has been done by
the impugned orders of transfer is that these workers have
been asked to discharge their duties in the Twisting Department
instead of Crimping Department.
24. It is pertinent to notice that the employees did not
produce any evidence to establish that there was difference in
the work in the Crimping Department and the Twisting
Department or that work of operator at the crimping and
twisting machines is different. No evidence has been led by the
employees about the fixed number of employees in the
Crimping Department. In the absence of any evidence by the
workers about any fixed number of workers in the Crimping
Department and Twisting Department, there is no foundation
laid for consideration of the question of reduction in the
Crimping Department and increase in number in the Twisting
Department by impugned orders of transfer. Obviously, the
burden lay on the workers to establish that the number of
workers in each of these departments i.e. Crimping
Department and Twisting Department has been determined
13
and that due to the action of the employer, there has been
decrease or increase in the number of workers in these two
departments.
25. We are not persuaded by the submission of the
learned Counsel for the appellants that there is a basic
difference in the nature of machines in the Crimping and
Twisting Departments and that workers are not trained to work
at Twisting Machines. If that were so, the workers ought to
have led evidence in that regard which they never did.
26. The Division Bench of the High Court in this regard
considered the matter thus:
“…We do appreciate that transfer of the employees
from one department to another, in absence of
corresponding transfer, would necessarily result into
reduction in manpower in one department and
corresponding increase in the manpower in the other
department. But, we are unable to agree that Item 1
of the Schedule II to the Act is intended to cover the
cases like the one before us. Had that been the
legislative intent the “assignment of work and the
transfer of workers within the establishment” would
not have been included in Schedule III to the act. If
the reasoning of the Industrial court were accepted,
the above referred Item 2 in Schedule III to the Act
would become nugatory. The cardinal principle of
interpretation of statutes requires that the
interpretation which would render a part of the
legislation nugatory or otiose should be avoided.
What is required is harmonization or conciliation
amongst the two seemingly contradictory or
repugnant provisions in an enactment. As the matter
“assignment of work and transfer of workers within the
14
establishment” has been specifically included in
Schedule III to the Act, it cannot be artificially brought
under Item 1 of Schedule II by reference to the
presumable consequences of such transfer or
assignment of work.”
27. We agree with the view of the High Court and for
the reasons already indicated above, we answer question (1) in
the negative.
Re.: Question (2)
28. In the Case of Umaji Kesho Meshram vs.
1
Radhikabai, , this Court had an occasion to consider the
question whether any appeal lies under Clause 15 of the
Letters Patent of the Bombay High Court before the Division
Bench of two Judges of the High Court from the judgment and
order of the learned single Judge of the High Court in petition
filed under Article 226 and 227 of the Constitution. The Court
held:
“ 100. According to the Full Bench even were clause
15 to apply, an appeal would be barred by the
express words of clause 15 because the nature of the
jurisdiction under Articles 226 and 227 is the same
inasmuch as it consists of granting the same relief,
namely, scrutiny of records and control of subordinate
courts and tribunals and, therefore, the exercise of
jurisdiction under these articles would be covered by
the expression “revisional jurisdiction” and “power of
superintendence”. We are afraid, the Full Bench has
misunderstood the scope and effect of the powers
1
1986 (Supp) SCC 401
15
conferred by these articles. 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 power of superintendence 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. These are writs which are directed
against persons, authorities and the State. The power
of superintendence conferred upon every High Court
by Article 227 is a supervisory jurisdiction intended to
ensure that subordinate courts and tribunals act within
the limits of their authority and according to law (see
State of Gujarat v. Vakhatsinghji Vajesinghji Vaghela
(AIR 1968 SC 1481) and Ahmedabad Mfg . & Calico
Ptg . Co . Ltd . v. Ram Tahel Ramnand [(1973) 1 SCR
185] . The orders, directions and writs under Article
226 are not intended for this purpose and the power
of superintendence conferred upon the High Courts
by Article 227 is in addition to that conferred upon the
High Courts by Article 226. 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.
101. Under Article 226 an order, direction or writ is
to issue to a person, authority or the State. In a
proceeding under that article the person, authority or
State against whom the direction, order or writ is
sought is a necessary party. Under Article 227,
however, what comes up before the High Court is the
16
order or judgment of a subordinate court or tribunal
for the purpose of ascertaining whether in giving such
judgment or order that subordinate court or tribunal
has acted within its authority and according to law.
Prior to the commencement of the Constitution, the
Chartered High Courts as also the Judicial Committee
had held that the power to issue prerogative writs
possessed by the Chartered High Courts was an
exercise of original jurisdiction (see Mahomedalli
Allabux v. Ismailji Abdulali (AIR 1926 Bom 332) ,
Raghunath Keshav Khadilkar v. Poona Municipality ,
Ryots of Garabandho v. Zemindar of Parlakimedi
(AIR 1942 PC 164) and Moulvi Hamid Hasan Nomani
v. Banwarilal Roy (AIR 1947 PC 90) . In the last
mentioned case which dealt with the nature of a writ
of quo warranto , the Judicial Committee held:
“In Their Lordships’ opinion any original civil
jurisdiction possessed by the High Court and not in
express terms conferred by the Letters Patent or later
enactments falls within the description of ordinary
original civil jurisdiction.”
By Article 226 the power of issuing prerogative writs
possessed by the Chartered High Courts prior to the
commencement of the Constitution has been made
wider and more extensive and conferred upon every
High Court. The nature of the exercise of the power
under Article 226, however, remains the same as in
the case of the power of issuing prerogative writs
possessed by the Chartered High Courts. A series of
decisions of this Court has firmly established that a
proceeding under Article 226 is an original proceeding
and when it concerns civil rights, it is an original civil
proceeding (see, for instance, State of U . P . v. Vijay
Anand Maharaj (AIR 1963 SC 946) , CIT v. Ishwarlal
Bhagwandas (AIR 1965 SC 1818) , Ramesh v. Seth
Gendalal Motilal Patni (AIR 1966 SC 1445) , Arbind
Kumar Singh v. Nand Kishore Prasad (AIR 1968 SC
1227) and Ahmedabad Mfg . & Calico Ptg . Co . Ltd . v.
Ram Tahel Ramnand (AIR 1972 SC 1598) .
102. Consequently, where a petition filed under
Article 226 of the Constitution is according to the
Rules of a particular High Court heard by a Single
Judge, an intra-court appeal will lie from that
judgment if such a right of appeal is provided in the
Charter of that High Court, whether such Charter be
Letters Patent or a statute. Clause 15 of the Letters
17
Patent of the Bombay High Court gives in such a case
a right of intra-court appeal and, therefore, the
decision of a Single Judge of that High Court given in
a petition under Article 226 would be appealable to a
Division Bench of that High Court.
107. Petitions are at times filed both under Articles
226 and 227 of the Constitution. The case of Hari
Vishnu Kamath v. Syed Ahmad Ishaque (AIR 1955
SC 233) before this Court was of such a type. Rule
18 provides that where such petitions are filed against
orders of the Tribunals or authorities specified in Rule
18 of Chapter XVII of the Appellate Side Rules or
against decrees or orders of courts specified in that
rule, they shall be heard and finally disposed of by a
Single Judge. The question is whether an appeal
would lie from the decision of the Single Judge in
such a case. 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. Such was
the view taken by the Allahabad High Court in Aidal
Singh v. Karan Singh (AIR 1957 ALL 414) and by the
Punjab High Court in Raj Kishan Jain v. Tulsi Dass
(AIR 1959 Punj 291) and Barham Dutt v. Peoples ’
Cooperative Transport Society Ltd ., New Delhi (AIR
1961 Punj 24) and we are in agreement with it.”
29. In the case of Ratnagiri District Central Co-
2
operative Bank Ltd. v. Dinkar Kashinath Wative , this Court
held that for determining the question of maintainability of an
appeal against the Judgement of the single Judge in a writ
2
1993 (Suppl.) 1 SCC 9
18
petition where both Articles 226 and 227 of the Constitution
have been mentioned, the Division Bench has to find out
whether in substance the judgment has been passed by the
learned single Judge in exercise of the jurisdiction under
Article 226 of the Constitution. The Court held thus:
“2. The only question involved in this matter is as
to whether the High Court was right in holding that a
Letters Patent Appeal will not lie against the judgment
delivered by a learned Single Judge in a petition
which was filed under both the Articles 226 and 227 of
the Constitution. Having gone through the judgment of
the learned Single Judge and the Division Bench and
having heard learned counsel for the parties, in our
opinion, the question about the scope of Letters
Patent Appeal under clause 15 has been clearly laid
down by this Court in a judgment reported in Umaji
Keshao Meshram v. Radhikabai wherein it was
observed as follows at pages 837-38: (SCC p. 473,
para 107)
“Petitions are at times filed both under Articles
226 and 227 of the Constitution. The case of Hari
Vishnu Kamath v. Syed Ahmad Ishaque (AIR 1955
SC 233) before this Court was of such a type. Rule 18
provides that where such petitions are filed against
orders of the tribunals or authorities specified in Rule
18 of Chapter XVII of the Appellate Side Rules or
against decrees or orders of courts specified in that
rule, they shall be heard and finally disposed of by a
Single Judge. The question is whether an appeal
would lie from the decision of the Single Judge in
such a case. 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
19
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. Such was
the view taken by the Allahabad High Court in Aidal
(AIR 1957 All 414)
Singh v. Karan Singh and by the
Punjab High Court in Raj Kishan Jain v. Tulsi Dass
(AIR 1959 Punj 291) and Barham Dutt v. Peoples’
Co-operative Transport Society Ltd. , New Delh (AIR
1961 Punj 24) and we are in agreement with it.”
3. It is clear that so far as the present case was
concerned the relief granted by the learned Single
Judge clearly indicate that he was exercising
jurisdiction under Article 226 and not under Article
227 of the Constitution and in this view of the matter
and in the light of what has been laid down by this
Hon’ble Court in the judgment referred to above a
Letters Patent Appeal under clause 15 would be
maintainable before the Division Bench of the High
Court. The appeal is, therefore, allowed and the
judgment passed by the learned Division Bench is set
aside. The matter is sent back to the High Court and it
is expected that the Division Bench will hear the
appeal on merits and dispose it of in accordance with
law expeditiously preferably within four months from
today.”
30. In Sushilabai Laxminarayan Mudliyar and others vs.
3
Nihalchand Waghajibhai Shah and Others , the Court held:
“4. The Full Bench of the Bombay High Court
wrongly understood the above Umaji Kesho Meshram
case . In Umaji case it was clearly held that where the
facts justify a party in filing an application either under
Article 226 or 227 of the Constitution of India and the
party chooses to file his application under both these
articles in fairness of justice to party and in order not
to deprive him of valuable right of appeal the Court
ought to treat the application as being made under
3
1993 Suppl. (1) SCC 11
20
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. Rule 18 of the Bombay High Court Appellate
Side Rules read with clause 15 of the Letters Patent
provides for appeal to the Division Bench of the High
Court from a judgment of the learned Single Judge
passed on a writ petition under Article 226 of the
Constitution. In the present case the Division Bench
was clearly wrong in holding that the appeal was not
maintainable against the order of the learned Single
Judge. In these circumstances we set aside the
impugned order of the Division Bench and direct that
the Letters Patent Appeal filed against the judgment
of the learned Single Judge would now be heard and
decided on merits.”
31. The issue concerning maintainability of Letters
Patent Appeal from an order of single Judge in the writ petition
filed under Articles 226 and 227 of the Constitution of India,
again came up for consideration before this Court in the case of
Kishori Lal vs. Sales Officer, District Land Development Bank
4
and Ors. . This Court held:
“13. The learned Single Judge of the High Court, in
our opinion, committed an error in interfering with the
findings of fact arrived at by the Board of Revenue.
The Division Bench of the High Court also wrongly
dismissed the LPA without noticing that an appeal
would be maintainable if the writ petition was filed
under Articles 226 and 227 of the Constitution of India
as was held by this Court in Sushilabai Laxminarayan
Mudliyar v. Nihalchand Waghajibhai Shaha (1993
Suppl. (1) SCC 11) .”
4
2006 (7) SCC 496
21
32. The discussion on the subject would be
incomplete without reference to two recent decisions of this
Court viz., (i) State of Madhya Pradesh and Ors. vs. Visan
5
Kumar Shiv Charan Lal , and (ii) Ramesh Chandra Sankla
6
vs. Vikram Cement . In the case of Visan Kumar Shiv Charan
Lal, this Court referred to earlier decisions in the case of
1 3
Umaji , Sushilabai Laxminarayan and Ratnagiri District Co-
2
operative Bank Ltd. , and held :
“8. ……”Even when in the cause title of an
application both Article 226 and Article 227 of the
Constitution have been mentioned, the learned single
Judge is at liberty to decide, according to facts of
each particular case, whether the said application
ought to be dealt with only under Article 226 of the
Constitution. For determining the question of
maintainability of an appeal against such a judgment
of the Single Judge the Division bench has to
find out whether in substance the judgment has been
passed by the learned Single Judge in exercise of the
jurisdiction under Article 226 of the Constitution. In the
event in passing his judgment on an application which
had mentioned in its cause title both Articles 226 and
227, the Single Judge has in fact invoked only his
supervisory powers under Article 227, the appeal
under clause 15 would not lie. The clause 15 of the
Letters Patent expressly bars appeals against orders
of Single Judges passed under revisional or
supervisory powers. Even when the learned Single
Judge's order has been passed under both the
articles, for deciding the maintainability against such
an order what would be relevant is the principal or
main relief granted by the judgment passed by
5
AIR 2009 SC 1999
6
AIR 2009 SC 713
22
learned Single Judge and not the ancillary directions
given by him. The expression `ancillary' means, in
the context, incidental or consequential to the main
part of the order.”
33. In Visan Kumar Shiv Charan Lal , this Court further
held that the determining factor is the real nature of principal
order passed by the Single Judge which is appealed against
and neither mentioning in the cause title of the application of
both the Articles nor granting of ancillary order thereupon by
the Single Judge would be relevant and in each case the
Division Bench must consider the substance of the Judgment
under appeal to ascertain whether the Single Judge has mainly
or principally exercised his jurisdiction under Article 226 or
Article 227 of the Constitution.
34. In Ramesh Chandra Sankla, this Court held:
“32. In our judgment, the learned Counsel for the
appellant is right in submitting that nomenclature of
the proceeding or reference to a particular Article of
the Constitution is not final or conclusive. He is also
right in submitting that an observation by a Single
Judge as to how he had dealt with the matter is also
not decisive. If it were so, a petition strictly falling
under Article 226 simpliciter can be disposed of by a
Single Judge observing that he is exercising power of
superintendence under Article 227of the Constitution.
Can such statement by a Single Judge take away
from the party aggrieved a right of appeal against the
judgment if otherwise the petition is under Article 226
of the Constitution and subject to an intra
23
court/Letters Patent Appeal? The reply
unquestionably is in the negative.”
35. If the judgment under appeal falls squarely within
four corners of Article 227, it goes without saying that intra
court appeal from such judgment would not be maintainable .
On the other hand, if the petitioner has invoked the jurisdiction
of the High Court for issuance of certain writ under Article 226,
although Article 227 is also mentioned, and principally the
judgment appealed against falls under Article 226, the appeal
would be maintainable. What is important to be ascertained is
the true nature of order passed by the Single Judge and not
what provision he mentions while exercising such powers. We
agree with the view of this Court in Ramesh Chandra Sankla
that a statement by learned Single Judge that he has exercised
power under Article 227, cannot take away right of appeal
against such judgment if power is otherwise found to have
been exercised under Article 226. The vital factor for
determination of maintainability of intra court appeal is the
nature of jurisdiction invoked by the party and the true nature of
principal order passed by the Single Judge.
24
36. Insofar as the present case is concerned, in the
cause title of the writ petition (Special Civil Application),
Articles 226 and 227 of the Constitution have been mentioned.
A careful reading of the writ petition shows that writ petition is
not confined to supervisory jurisdiction of the High Court. The
employer has invoked jurisdiction of the High Court by praying
for a writ of certiorari. The prayer clause in the writ petition
reads, “In view of the aforesaid premises your Lordships may
be pleased to issue a writ of certiorari or any other appropriate
order……” . The judgment of the Single Judge is, thus,
traceable to Article 226. The statement made by the Single
Judge in his order that no case for interference is made out
under Article 227 of the Constitution is not decisive. Moreover,
the Division Bench in its order observed, “though long drawn
arguments were advanced on the question of maintainability of
this Appeal, there rally was not a serious contest on the
question of maintainability of the Appeal.” For all these reasons,
we hold that Letters Patent Appeal was maintainable from the
order dated October 1, 2007 passed by the learned Single
Judge. We answer question (2) in affirmative.
25
37 By way of foot-note, we may observe that during
the course of hearing of the appeal, we were informed by the
Senior Counsel for the employer that dispute has been
resolved amicably with twelve employees. We gave an
opportunity to the remaining employees to settle the dispute
with the employer as has been done by twelve employees,
and although employer expressed their willingness, but the
remaining employees found the offer of the employer
unacceptable.
38. In the result, appeal fails and is dismissed with no
order as to costs.
……………………J
(Tarun Chatterjee)
…….……………..J
(R. M. Lodha)
New Delhi
August 28, 2009.
26