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Judgment
G.S.SISTANI, J
Challenge in this appeal is to the judgment dated 27.08.2018 passed by learned Single Judge of this Court in W.P. (C) 5607/2016 whereby the
petition of the appellant herein has been dismissed and the appellant has been directed to implement the award dated 23.01.2012.
The matter was first listed on 12.09.2018, a preliminary objection was raised by counsel for the respondents that the proceedings were apparently
challenging an order passed by a Single Judge of this Court under Article 227 of the Constitution and thus, the present appeal would not been
maintainable. Accordingly, counsel for both the parties were heard and the matter was reserved only on the issue of the maintainability of the present
petition.
The facts leading to the present appeal, in a nutshell, are that the appellant had filed the writ petition labelled as one under Article 227 before the
learned Single Judge impugning the order dated 14.05.2016 passed by the Court of Additional District Judge-03, Patiala House Courts, New Delhi (in
short ‘the Executing Court’) in Execution Petition 23/2016. The execution petition has been filed to execute the award dated 23.01.2012 passed
by the learned Presiding Officer, Industrial Tribunal. By the said award, the Industrial Tribunal had held the action of M/s Hindustan Times Limited
(HTL) in transferring the ownership of its printing undertaking to its subsidiary M/s Hindustan Times Media Limited (HTML) from 02.10.2004 and
terminating the services of the workmen under Section 25FF of the Industrial Disputes Act, 1947 (in short the ‘Act’) as illegal and unjustified
and HTL was directed to reinstate 272 workmen treating them in “continuity of service†under the terms and conditions of service as before their
alleged termination. Notional letters of appointment dated 19.04.2013 were issued to the workmen pursuant to the consensus arrived at between the
parties on 17.04.2013 in CM (M) 368/2013 in this Court without prejudice to their rights and contentions. Thereafter, on 09.12.2013, HTL invoked
Section 25FFF of the Act on the ground that after having sold the printing undertaking to HTML, the printing undertaking of HTL was closed in the
year 2005 and permanently removed from the list of registered factories by the Inspector of the factories from 04.07.2008.
By the order dated 14.05.2016, the Executing Court held that the award dated 23.01.2012 had not been complied with in letter and spirit and the
purported reinstatement letters issued to the workmen on 19.04.2013 were an eyewash and moonshine and did not fulfil compliance with the award.
Accordingly, the execution petition was held to be maintainable and HTL was granted four weeks time to reinstate all the eligible workmen. The
Executing Court further held that the fresh orders under Section 25FFF of the Act will not come in the way of reinstatement being without cause of
action and non-est.
This order was impugned before the learned Single Judge, which was dismissed by the order dated 27.08.2018. By the said order, the learned Single
Judge further directed the appellant to deposit the arrears of wages of workmen, who had not superannuated, with the executing court, which was to
be disbursed to the workmen. The appellant was also directed to implement the order of the award of the Industrial Tribunal. This order has been
impugned in the present letters patent appeal.
Mr. Sethi, learned senior counsel for the appellant, has submitted that even though the petition invoked Article 227 of the Constitution, the grounds
of challenge, relief sought and the tenor of the judgment of the learned Single Judge would show that it was infact, a petition under Articles 226 and
227 both and not under Article 227 alone. The challenge was only to the order of the Executing Court and nothing more. It did not invoke the
supervisory jurisdiction of this Court. The grounds thereof were limited to (1) the executing court not having jurisdiction to pass the said order; (2) the
order being beyond the scope of reference and the award dated 23.01.2012 of the Industrial Tribunal; (3) the order ran awry of the orders of this
Court in CM (M) 368/2013 and LPA 6/2015. Even the impugned order of the learned Single Judge did not issue any guidelines for further proceedings
by the executing court and the directions to deposit salary are without jurisdiction and did not fall under the scope of Article 227. It was contended that
mere nomenclature of the petition, as being once under Article 227, was not decisive and the nature of controversy and relief sought would be
determinative of the jurisdiction exercised by the learned Single Judge. Mr. Sethi had relied upon the judgments in MMTC Ltd.v. CCT, (2009) 1 SCC
8 (paragraphs 7 and 17); State of Madhya Pradesh v. Visan Kumar Shiv Charan Lal, (2008) 15 SCC 233 (paragraphs 3, 5, 12 and 14); Savitri Sharma
v. State of Bihar, (2012) 1 PLJR 534 (paragraphs 23-27, 29 and 30); and Advani Oerlikon Ltd. v. Machindra Govind Makasare, (2011) 2 Mah LJ 916
(FB) (paragraphs 2, 16-17 and 21).
Learned senior counsel further submitted that a case being executed by a civil court under Sub-Sections (9) and (10) of Section 11 of the Act is at
par with steps for challenge under any other provision under the Act including Section 33C (1) and (2), which has been in the statute book since 1947.
It was contended that the introduction of Sub-Sections (9) and (10) of Section 11 did not dilute any of the steps of challenging the award or order
under the Act, which remained filing a writ petition and thereafter, letter patent appeal and special leave petition. The introduction of the sub-sections
under Section 11 had only been provided for convenience of forum and the mode of challenge of the order remained the same. Reliance was placed
on the judgment of the Andhra High Court in Nalgonda Co-Op. Marketing v. Labour Court, 1993 (2) ALT 661 (paragraphs 17 and 21) to submit that a
Labour Court only had the trappings of a civil court and could not be considered as a civil court. It was also submitted that against an order dated
12.10.2012 of the executing court in proceedings arising out of the same award, the respondents had themselves preferred a challenge before a Single
Judge of this Hon’ble Court, which was carried in LPA by the appellant and thereafter, the Supreme Court by the respondents. The said petition
had not been dismissed on the ground of maintainability. Mr. Sethi concluded that merely because a civil court was executing the award, the remedies
open to the parties would not stand excluded and thus, the present appeal was maintainable.
Per contra, Mr.Mishra contended that the present appeal is not maintainable. He contended that the proceedings before the learned Single Judge
laid a challenge to the order of the Executing Court, which was a judicial order passed by a civil court exercising jurisdiction under Sub-Sections (9)
and (10) of Section 11 of the Act. Learned counsel relied upon the judgment of the Hon’ble Supreme Court in Radhey Shyam v. Chhabi Nath,
(2015) 5 SCC 423 (paragraphs 1, 26, 27 and 29) to submit that judicial orders of the civil courts are not amenable to writ jurisdiction under Article 226.
Accordingly, the said order of the executing court was exclusively assailable under Article 227 of the Constitution and not under Article 226. In all
circumstances, the challenge had to be one under Article 227 as that under Article 226 could not be entertained. For similar submissions, Mr.Mishra
also relied upon the decisions in Jogendrasinhji Vijaysinghji v. State of Gujarat, (2015) 9 SCC 1 [paragraphs 18, 19 and 45(2)]; and Ram Kishan Fauji
v. State of Haryana, (2017) 5 SCC 533 (paragraph 41).
Mr.Mishra further submitted that the appellant had filed the writ petition under Article 227 as is evident from the title of the petition and even the
learned Single Judge has recorded it as being one under Article 227. It was contended that the respondents herein had even alleged before the learned
Single Judge in its written submissions that a writ petition assailing judicial order was not maintainable. The appellant had never pursued their petition
as one being under Article 226 and had deliberately invoked Article 227 of the Constitution and are now trying to resile therefrom. It was contended
that the judgments relied upon by the appellant are prior to the judgment of the Full Bench of the Supreme Court in Radhey Shyam(Supra).
In response to the contention of the appellants that the petition was in its form one under Article 226, Mr.Mishra submitted that the petition as
being one under Article 227 could be inferred from the fact (1) the petition was filed against a private party; (2) the appellant had alleged that the
executing court had exceeded its authority; (3) the prayer did not seek any writ; and (4) the learned Single Judge had given further directions in the
impugned judgment for compliance of the award. It was also contended that the difference sought to be created between cases under labour law and
civil law was artificial.
During rejoinder arguments, Mr. Sethi submitted that the authorities relied upon by the respondents did not detract from the principle that mere
nomenclature of the petition was not a decisive factor. It was further contended that the judgments in Radhey Shyam (Supra) and Jogendrasinhji
Vijaysinghji (Supra) arose out of proceedings purely of a civil nature, which was not the case in the present matter. It was also submitted that the
judgment in Ram Kishan Fauji (Supra) pertained to the maintainability of letter patent appeal in a criminal matter.
We have heard the learned counsel for the parties and gone through the record and the judgment passed by the learned Single Judge.
Clause 10 of the Letters Patent constituting the High Court of Judicature at Lahore dated 21.03.1919, which is applicable to this Court, reads as
under:
“10. Appeals to the High court from Judges of the Court.And We do further ordain that an appeal shall lie to the said High Court of Judicature at
Lahore from the judgement (not being a judgement passed 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, and not being an order made in the exercise of revisional
jurisdiction, and notbeing a sentence or order passed or made in the exercise ofpower of superintendence under the provisions of Section 107of 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 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from
a judgement of one Judge of the High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, made on or
after the first day of February, one thousand nine hundred and twenty-nine in the exercise of appellate jurisdiction in respect of a decree or order
made in exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgement
declares that the case is a fit one for appeal, but that the right of appeal from other judgements of Judges of the said High Court or of such Division
Court shall be to Us, Our Heirs or Successors in Our or Their Privy Council, as hereinafter provided.â€
(Emphasis Supplied)
The aforequoted clause of the Letters Patent expressly excludes orders passed in exercise of power of superintendence and on this aspect, there
is no dispute between the parties [See Umaji Keshao Meshramv.Radhikabai, 1986 Supp SCC 401 (paragraph 104) and South Delhi Municipal
Corporationv. Bharat Bhushan Jain, 236 (2017) DLT 452 (paragraphs 12-15)]. The only question arising for our consideration is whether the
proceedings before the learned Single Judge were in exercise of supervisory jurisdiction under Article 227 of the Constitution or writ jurisdiction under
Article 226?
There is no quarrel with the proposition that when the facts justify a party to approach this Court under Article 226 or 227 of the Constitution, then
the Court should not limit itself merely by the caption used by the party or such a reference being made in the order of the single judge. The Court
must ascertain from the pleadings, reliefs sought and the order passed by the Single Judge, whether it was under Article 226 or 227 of the
Constitution. The judgments cited by both the parties before us, consistently hold them same and we do not deem it necessary to reproduce them to
avoid prolixity. However, it is an entirely different thing to say that though only proceedings under Article 227 were entertainable, even then the Single
Judge exercised writ jurisdiction under Article 226.
Accordingly, before an enquiry in the nature of the proceedings before the learned Single Judge can be undertaken, it is asine qua non that the
facts justify invocation of both Article 226 and 227. In this regard, the following observations of the Supreme Court in Umaji Keshao Meshram
(Supra) (paragraph 107) may be noticed:
“ 107. …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. …â€
(Emphasis Supplied)
The Full Bench of the Bombay High Court in Advani Oerlikon Ltd. (Supra) has also observed as under:
The principles which emerge can be elucidated as follows: (i) The fundamental principle which must be applied in determining the maintainability
of an appeal under Clause 15 of the Letters Patent, is whether the facts justify a party infiling an application either under Article 226 or Article 227of
the Constitution. Where in such a case, a party chooses to file an application under both the Articles, it should not be deprived of a right of appeal. The
Court must treat the application as one under Article 226 of the Constitution. If the Single Judge in the course of the final order has issued an ancillary
direction which pertains to Article 227, this would not deprive a party of a right of appeal under Clause 15 of the Letters Patent;… (iv) Where the
contention that is raised,the grounds taken and the reliefs sought in the petition justifythe invocation of both Articles 226 and 227 of theConstitution, an
appeal under Clause 15 of the Letters Patentagainst a judgment of the Single Judge would bemaintainable;…â€
(Emphasis Supplied)
18.We may also fruitfully refer to the judgment of the Supreme Court in Ram Kishan Fauji (Supra). In the said case, though the Supreme Court was
dealing with a case wherein the letters patent appeal arose out of orders passed by the Single Judge in criminal jurisdiction, however, the Supreme
Court after considering the maintainability of writ petition from judicial orders of civil courts, observed as under:
“40. As the controversy in Jogendrasinhji Vijaysinghji case related to further two aspects, namely, whether the nomenclature of the article is
sufficient enough and further, whether a tribunal is a necessary party to the litigation, the two-Judge Bench proceeded to answer the same. In that
context, the Court referred to the authorities in Lokmat Newspapers (P) Ltd. v. Shankarprasad, Kishorilal, Ashok K. Jha and Ramesh Chandra Sankla
and opined that maintainability of a letters patent appeal would depend upon the pleadings in the writ petition, the nature and character of the order
passed by the learned Single Judge, the type of directions issued regard being had to the jurisdictional perspectives in the constitutional context. It
further observedthat barring the civil court, from which order as held by thethree-Judge Bench in Radhey Shyam that a writ petition canlie only under
Article 227 of the Constitution, orders from tribunals cannot always be regarded for all purposes to be under Article 227 of the Constitution. Whether
the learned Single Judge has exercised the jurisdiction under Article 226 or under Article 227 or both, would depend upon various aspects. There can
be orders passed by the learned Single Judge which can be construed as an order under both the articles in a composite manner, for they can co-exist,
coincide and imbricate. It was reiterated that it would depend upon the nature, contour and character of the order and it will be the obligation of the
Division Bench hearing the letters patent appeal to discern and decide whether the order has been passed by the learned Single Judge in exercise of
jurisdiction under Article 226 or 227 of the Constitution or both. The two-Judge Bench further clarified that the Division Bench would also be required
to scrutinise whether the facts of the case justify the assertions made in the petition to invoke the jurisdiction under both the articles and the relief
prayed on that foundation. The delineation with regard to necessary party not being relevant in the present case, the said aspect need not be adverted
to.
We have referred to these decisions only to highlight thatit is beyond any shadow of doubt that the order of the civilcourt can only be challenged
under Article 227 of theConstitution and from such challenge, no intra-court appealwould lie and in other cases, it will depend upon the otherfactors as
have been enumerated therein.
At this stage, it is extremely necessary to cull out the conclusions which are deducible from the aforesaid pronouncements. They are:
42.1. An appeal shall lie from the judgment of a Single Judge to a Division Bench of the High Court if it is so permitted within the ambit and sweep of
the Letters Patent.
42.2. The power conferred on the High Court by the Letters Patent can be abolished or curtailed by the competent legislature by bringing appropriate
legislation.
42.3. A writ petition which assails the order of a civil court inthe High Court has to be understood, in all circumstances, tobe a challenge under Article
227 of the Constitution anddetermination by the High Court under the said article and,hence, no intra-court appeal is entertainable.
42.4. The tenability of intra-court appeal will depend upon the Bench adjudicating the lis as to how it understands and appreciates the order passed by
the learned Single Judge. There cannot be a straitjacket formula for the same.
(Emphasis Supplied)
Both MMTC Ltd.(Supra) and Visan Kumar Shiv Charan Lal (Supra) arose out of proceedings before quasi-judicial bodies and thus, proceedings
both under Article 226 and 227 were justified.
In respect of judicial orders passed by Civil Courts, the Full Bench of the Supreme Court in Radhey Shyam (Supra) has categorically held that
judicial orders of civil courts are not amenable to writ jurisdiction under Article 226 of the Constitution and had overruled the contrary view in Surya
Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675. The said view has been repeated in Jogendrasinhji Vijaysinghji (Supra) and Ram Kishan Fauji
(Supra).
Coming to the case at hand, the petition arose out of the order dated 14.05.2016 passed by the Executing Court in execution proceedings under
Sub-Section (9) and (10) of Section 11 of the Act, which read as under:
“(9) Every award made, order issued or settlement arrived at by or before Labour Court or Tribunal or National Tribunal shall be executed in
accordance with the procedure laiddown for execution of orders and decree of a Civil Courtunder order 21 of the Code of Civil Procedure, 1908.
(10) The Labour Court or Tribunal or National Tribunal, as the case may be, shall transmit any award, order or settlement to a Civil Court having
jurisdiction and such CivilCourt shall execute the award, order or settlement as if itwere a decree passed by it.â€
(Emphasis Supplied)
It is clear that after the introduction of the aforegoing sub-sections, the award passed by the Industrial Tribunal shall be executed by a Civil Court
under Order XXI of the Code of Civil Procedure treating it to be a decree passed by such Civil Court. There is no doubt in our minds that any order
passed by the executing court under the said provisions would be a judicial order passed by a civil court and thus, unamenable to challenge in writ
proceedings.
Mr. Sethi has tried to persuade us was that as the proceedings before the executing court arise out of an award of the Industrial Tribunal, such
court would also stand equated to the Tribunal. We are unable to agree with such a proposition. Once the award is passed by the Industrial Tribunal, it
is to be executed by the Civil Court as if it were a decree passed by it. The Civil Court remains a civil court and does not become the Industrial
Tribunal. The fact that it is executing an award from an Industrial Tribunal is inconsequential and the civil court executes the award treating the same
as a decree passed by it. To this end, the second limb of Sub-Section (10), underlined above, is clear. For the same reason, the judgment of the Full
Bench of the Andhra High Court in Nalgonda Co-Op. Marketing (Supra) also does not assist the case of the appellant. In the said judgment, the issue
pertained to the applicability of Limitation Act to Labour Courts and not an executing court under Section 11.
The analogy drawn with Section 33C of the Act also does not impress upon us. The procedure prescribed under Section 33C is completely
different from the one under Section 11. Under Section 33C, it is for the Government to certify the dues and then the same is enforced by the
Collector. Sub-Section (2) provides for adjudication of disputes in respect of computation to be decided by the Labour Court. Neither of the provisions
contemplate any proceedings before a Civil Court.
Learned senior counsel of the appellant has also drawn our attention to the fact that in the previous round of litigation emanating from execution
proceedings out of the same award, the order of the executing court was challenged before a Single Judge of this Court and then carried in a Letters
Patent Appeal by the appellant herein. It was contended that the said LPA was not dismissed on the ground of maintainability and was even assailed
before the Supreme Court.
The issue in that round of litigation pertained to the entitlement of the workmen to the back wages. The claim of the workmen was rejected by the
executing court on 12.10.2012. The said order was impugned before this Court in W.P. (C) 1000/2013, which was allowed and the learned Single
Judge held that the reinstatement directed in the award was to be read as reinstatement with full back wages. HTL preferred an appeal being LPA
6/2015, which was allowed by a coordinate bench of this Court and the writ petition of the workmen was dismissed. The workmen approached the
Supreme Court in SLP (C) 10578/2015, which was dismissed on 01.06.2016. After going through the orders passed by the coordinate bench of this
Court and the Supreme Court, it is clear that the maintainability of the proceedings was never questioned and thus, cannot come to the aid of the
appellant.
From the aforegoing discussion, it is clear that though the Court should not be influenced by nomenclature or provision invoked while ascertaining
whether the proceedings before the Single Judge were under Article 226 or 227 and should look into the controversy involved and the reliefs sought,
however, such an enquiry is not permissible in cases arising out of an order of a civil court as the same must be understood as one under Article 227.
Accordingly, the writ petition before the learned Single Judge must be held as one under Article 227 being a challenge to the judicial order of the
executing court, which we have already held to be a civil court. Hence, the order of the learned Single Judge cannot be challenged by way of a
Letters Patent Appeal in view of the express prohibition under Clause 10 of the Letters Patent applicable to this Court.
We are fortified in our view by the fact that the question of maintainability of a writ petition against a judicial order was raised in the written
submissions dated 29.01.2018 before the learned Single Judge and the judgment in Radhey Shyam (Supra) was cited. Incase, the proceedings were
held to be under Article 226 of the Constitution, the same would not have been maintainable as being against an order of the Civil Court.
Hence, the present appeal is dismissed as not maintainable.
In view of the aforegoing, CM 37157/2018 seeking stay of the operation of the impugned judgment is rendered infructuous and therefore,
dismissed.