Indore Duggh Sangh and Another vs K.P. Singh and Another

R.D. Shukla, J.

This L.P.A. is directed against the order dated 15.2.95 of the learned Single Judge of this Court, passed in M.P. No. 1270/91, whereby the order of the Labour Judge for reinstatement of the Respondent No. 1 (here) with 50% back wages has been affirmed.

The brief history of the case is that Respondent No. 1 was an employee with the applicant (here). It is alleged that he committed misconduct by dishonestly removing nearly 100 packets of milk, as such, Departments Enquiry was held and a punishment of removal from service was imposed. Respondent No. 1 raised industrial dispute. The matter was decided by the Labour Judge. The Labour Judge modified the punishment of removal and directed reinstatement with 50% back wages. Both the parties (i.e.) present Appellants and Respondent No. 1 (here) filed writ petitions under Article 227 of the Constitution before the learned Single Judge. The employee (Respondent No. 1) filed M.P. No. 1212/92 challenging deduction of half pay and prayed for reinstatement with full back wages.

Indore Dugdha Sangh (applicant here) filed M.P. No. 1270/91 challenging the order specially the modification in the punishment passed by the Labour Judge. During the arguments before the learned Single Judge petition filed by the employees (Respondent No. 1) was not pressed.

The learned Single Judge disposed of M.P. No. 1270/91 (petition filed by the Appellant) with the observation that the payment made under Article 17B of the Industrial Dispute Act shall be adjusted against 50% of back wages, as directed, and the petition was disposed of with those directions. Hence, this L.P.A.

Learned Counsel for the Appellant submitted that the order of Labour Judge modifying the order of punishment was without jurisdiction and in such cases of corruption the removal from service was the only adequate punishment required to be inflicted. He further submitted that he has filed this appeal not only for exercise of appellate jurisdiction under the provisions of Letters Patent Appeal, but is trying to invoke powers under Article 226 of the Constitution.

Learned Counsel for the Respondents has raised preliminary objection that the order passed by the learned Single Judge in exercise of power under Article 227 of the Constitution cannot be challenged by way of L.P.A.

Learned Counsel for the Appellant has drawn our attention to the proceedings before the Labour Judge, whereby the issues as to the finding of fact were not pressed and only the matter of punishment was pressed into.

Before entering into the merits of the case we would like to dispose the preliminary objection raised by the learned Counsel for the Respondents as to the maintainability of the appeal. Section 10 of Letters Patent Appeal provides as follows:

Appeal to the High Court from Judges of the Courts - And we do further ordain that an appeal shall lie to the said High Court of Judicature at Nagpur from the judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made in the exercise of the appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the powers of superintendence under the provisions of section one hundred and seven of the Government of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court, pursuant to section one hundred and eight of the Government of India Act, and that notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court pursuant to section one hundred and eight of the Government of India Act, made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal, but that the right of appeal from other judgment of Judge of the said High Court or of such Division Bench shall be to us, our Heirs and Successors in Our or Their Privy Council, as hereinafter provided.

A plain reading of this section would show that no appeal would lie where learned Single Judge has passed an order in exercise of revisional jurisdiction or powers of superintendence. A reference of Section 107 & 108 of Government of India Act has been made. Article 227 of the Constitution in parimateria is the same. In view of above no appeal would lie against the Judgment of Single Judge passed in exercise of powers under Article 227 of the Constitution. The matter came up before their Lordships of the Supreme Court in case of Umaji Keshao Meshram and Others Vs. Radhikabai and Another, . The following observations is very relevant for the purpose of decision of this case:

A proceeding under Article 227 is not an original proceeding. An intra-Court appeal does not lie against the judgment of a single Judge of the Bombay High Court given in a petition under Article 227 by reason of such appeal being expressly barred by Clause 15 of the Letters Patent of that High Court.

The observation of Their Lordships of the Supreme Court was made while dealing with Clause 15 of the Letters Patent Bombay, but Clause 10 of Letters Patent Nagpur applicable to this High Court is in perimateria the same as the of Clause 15 of Letters Patent Bombay. Thus, in our considered opinion no LPA against the judgment of learned Single Judge would lie where order has been passed in exercise of power under Article 227 of the Constitution.

Learned Counsel for the Appellants referred to cases reported in The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others, , Municipal Committee, Bahadurgarh Vs. Krishan Behari and others, and Mukund Engineering Works Vs. Bansi Purshottam, in support of his contension that the Labour Judge exercised powers not vested in him and, therefore, the order of the learned Labour Judge was without jurisdiction. It appears, as we find in para-10 of the order of the learned Single Judge the point of jurisdiction was not raised before the Labour Judge (res. 2). Even otherwise that point ought to have been raised before the learned Single Judge who was exercising power under Article 227 of the Constitution. Now, having failed in their attempt for getting the judgment of Labour Judge (res. 2) quashed the Appellants cannot be allowed to circumvent provisions and pursuade the Court for hearing the matter afresh and for treating the appeal as a petition under Article 226 of the Constitution.

In view of discussions above the appeal against the order of learned Single Judge is incompetent as no appeal lies. It is, therefore, dismissed. In the facts and circumstances of the case parties shall bear their own costs.