Gujarat State Road Transport Corporation v. Firoze M. Mogal & 1 Another, Gujarat High Court, Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Judges

A G Uraizee
Vijay Manohar A G Uraizee

Acts

See more information ...

Smart Summary

Factual and Procedural Background

This judgment arose on a Letters Patent Appeal (LPA) taken up for final hearing. At the hearing, the respondent raised a preliminary objection that the writ petition below had not impleaded the Labour Court, Junagadh. The respondent relied on the Division Bench decision in Revaben wd/o Ambalal Motibhai and Ors. Vs. Vinubhai Purshottambhai Patel and others, 2013 (1) GLH 440, to contend that where a writ petition under Articles 226 and 227 does not implead the tribunal whose order is challenged, the petition must be treated as being under Article 227 and thus a Letters Patent Appeal is not maintainable. The appellant disputed this position, relying on other precedents and arguing that non-impleadment did not necessarily convert a petition invoking Articles 226 and 227 into one solely under Article 227. The Court considered the competing authorities and the parties' submissions, assessed consistency among prior decisions, and referred the matter to a Larger Bench for reconsideration.

Legal Issues Presented

Whether a Letters Patent Appeal is maintainable where the writ petition challenging a tribunal's order did not implead the tribunal (Labour Court) as a party, i.e., effect of non-impleadment on treatability under Articles 226 and/or 227 of the Constitution of India.
Whether non-consideration of the Full Bench decision in Dilavarsinh Khodubha v. State of Gujarat and others (1995 (1) GLH 110) materially impacted the outcome of the Division Bench decision in Revaben (2013 (1) GLH 440).
Whether the Division Bench in Revaben erred in observing that the Division Bench decision in Principal, S.V. Doshi Girls High School and another v. Lilaben Somabhai Gadasa (2012 (2) GLH 428) did not consider the Supreme Court decision in Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another (AIR 1963 SC 786).

Arguments of the Parties

Respondent's Arguments

The writ petition failed to implead the Labour Court, Junagadh; in view of the Division Bench decision in Revaben (2013 (1) GLH 440), such a writ petition must be treated as a petition under Article 227 (not Article 226), and consequently a Letters Patent Appeal is not maintainable.
The respondent also relied on Bhagyodaya Cooperative Bank Limited v. Natvarlal K. Patel and another, 2011 (3) GLH (FB) 89, for the proposition that in a writ petition under Article 226 the Tribunal or Authority has to be impleaded as a party.

Appellant's Arguments

If a petition invokes jurisdiction under both Articles 226 and 227, and the facts pleaded establish that the petition is essentially under Article 226, mere non-impleadment of the Labour Court should not convert it into a petition under Article 227; therefore, the LPA is maintainable.
Reliance on the Full Bench decision in Dilavarsinh Khodubha (1995 (1) GLH 110) and the Supreme Court decision in Savitridevi v. District Judge, Gorakhpur and others (AIR 1999 SC 976) to argue that writ relief under Article 226 can be sought against orders passed by courts/tribunals exercising appellate or revisional jurisdiction and that impleading judicial officers as parties should be deprecated.
The appellant further contended that Principal, S.V. Doshi Girls High School (2012 (2) GLH 428) lays down the correct law and supports the maintainability of the Letters Patent Appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Revaben wd/o Ambalal Motibhai and Ors. Vs. Vinubhai Purshottambhai Patel and others, 2013 (1) GLH 440	Held that if the tribunal whose order is under challenge is not made a party, the writ petition should be treated as one under Article 227 and not Article 226; also held Article 226 would lie only if order was passed by court/tribunal of first instance and not against orders passed in appellate/revisional jurisdiction (paragraphs 41(2) and 41(3) of that decision).	The Court found these parts of Revaben to be not in consonance with the Full Bench decision in Dilavarsinh Khodubha and concluded that Revaben requires reconsideration by a Larger Bench; referred questions as to its validity and correctness.
Bhagyodaya Cooperative Bank Limited v. Natvarlal K. Patel and another, 2011 (3) GLH (FB) 89	View that in a writ petition under Article 226, the Tribunal or Authority has to be impleaded as a party.	Cited by the respondent to support the preliminary objection concerning non-impleadment of the Labour Court.
Dilavarsinh Khodubha v. State of Gujarat and others, 1995 (1) GLH 110	Full Bench held that a writ petition under Article 226 would lie and an order can be quashed under Article 226 even if the impugned order was passed by courts/tribunals while exercising appellate or revisional jurisdiction (paragraphs 12 and 13).	The Court relied on this Full Bench decision to conclude that the view in Revaben (holding otherwise) is inconsistent; the Court noted that Revaben did not consider Dilavarsinh and this omission is material, prompting referral to a Larger Bench.
Savitridevi v. District Judge, Gorakhpur and others, AIR 1999 SC 976	Supreme Court held that impleading judicial officers disposing of civil proceedings as parties to writ petitions under Article 226 should be stopped and deprecated such practice.	The Court noted that Principal, S.V. Doshi had considered Savitridevi and that this principle should have been taken into account by Revaben; this supported the Court's view that Revaben required reconsideration.
Principal, S.V. Doshi Girls High School and another v. Lilaben Somabhai Gadasa, 2012 (2) GLH 428	Division Bench decision which, according to the present court, had considered the Supreme Court decision in Udit Narain Singh Malpaharia and Savitridevi and laid down what the present court regarded as the correct law.	The Court found Revaben's observation that this Division Bench did not take note of Udit Narain Singh Malpaharia to be incorrect; relied on Doshi to undermine Revaben's reasoning and as a basis for referring Revaben to a Larger Bench.
Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another, AIR 1963 SC 786	A Supreme Court decision referenced in the context of whether earlier Division Bench judgments took it into account.	The Court observed that Principal, S.V. Doshi had considered this decision, and therefore Revaben's statement that Doshi did not take note of it was incorrect; this contributed to the decision to refer Revaben for reconsideration.

Court's Reasoning and Analysis

The Court first recorded the rival submissions: the respondent's preliminary objection relying on Revaben and Bhagyodaya, and the appellant's reliance on Dilavarsinh Khodubha, Savitridevi and Principal, S.V. Doshi. The Court then compared the authorities and observed a conflict:

The Court noted that Revaben's statements in paragraphs 41(2) and 41(3) — that Article 226 would lie only against orders of courts/tribunals of first instance and not against orders passed in appellate or revisional jurisdiction — are inconsistent with the Full Bench decision in Dilavarsinh Khodubha (which holds Article 226 can be invoked against appellate/revisional orders).
The Court found that Revaben had not considered the Full Bench decision in Dilavarsinh Khodubha when laying down the conflicting proposition.
The Court examined Revaben's observation that Principal, S.V. Doshi did not take note of Udit Narain Singh Malpaharia, and found that to be incorrect because Doshi had in fact considered Udit Narain (and Savitridevi). Thus Revaben erred in that factual/legal premise.
The Court emphasised that Savitridevi (Supreme Court) strongly deprecated impleading judicial officers disposing civil proceedings as parties in writ petitions under Article 226; this principle had been considered by Doshi but was not properly considered in Revaben.
Because of these inconsistencies and omissions (failure to consider binding Full Bench or Supreme Court authorities and an incorrect factual/legal premise about Doshi), the Court concluded that Revaben's correctness and applicability raise substantial questions of law that require reconsideration by a Larger Bench.

The Court declined the appellant's request to nominate a Bench itself, noting that the nomination of an appropriate Bench is the prerogative of the Chief Justice. The Court allowed the parties to propose additional questions to the Larger Bench, and authorised the Larger Bench to reframe or recast the questions it had referred.

Holding and Implications

Holding: The Court referred the entire appeal — including the questions of law and on merits — to a Larger Bench for reconsideration of the decision in Revaben wd/o Ambalal Motibhai and Ors. Vs. Vinubhai Purshottambhai Patel and others, 2013 (1) GLH 440. The Court framed two primary questions for the Larger Bench (set out above) and permitted parties to seek framing of additional questions; the Larger Bench may reformulate the issues as necessary.

Immediate directions and consequences:

The Court directed the registry to place the records before the Chief Justice at the earliest for nomination of an appropriate Bench (noting the Chief Justice's exclusive prerogative to nominate the Bench).
The Court further directed that a copy of this order be placed before the Chief Justice within three days for constituting an appropriate Bench.
The Court observed that the applicability of Revaben is arising in a large number of cases and therefore expedited consideration by a Larger Bench was warranted.

No final determination was made on the substantive maintainability issue; instead, the matter was referred for authoritative resolution by a Larger Bench. The decision thus suspends final resolution at this Court-level stage and requires re-examination of the conflict among Division Bench, Full Bench and Supreme Court authorities identified in the judgment.

Show full summary ...

Gujarat State Road Transport Corporation v. Firoze M. Mogal & 1 Another

(PER :

HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI)

1. We have heard learned counsel for the parties.

2. When this Letters Patent Appeal was taken up for final hearing, a preliminary objection was raised by learned counsel appearing for the respondent that in the writ petition, the Labour Court, Junagadh was not a party. Hence, in view of the Division Bench decision of this Court in the case of Revaben wd/o Ambalal Motibhai and Ors. Vs. Vinubhai Purshottambhai Patel and others, reported in 2013 (1) GLH 440, this Letters Patent Appeal is not maintainable as the writ petition was filed under Articles 226 and 227 of the Constitution of India.

3. Learned counsel for the respondent pointed out that it has been held in the decision of Revaben (Supra) that if the Tribunal whose order is under challenge is not made a party, then the writ petition would have to be treated as a petition under Article 227 of the Constitution of India and it cannot be a writ petition under Article 226.

It has also been pointed out that another Full Bench of this Court in the case of Bhagyodaya Cooperative Bank Limited v. Natvarlal K. Patel and another, 2011 (3) GLH (FB) 89, has taken a view that in a writ petition under Article 226 of the Constitution of India, the Tribunal or Authority has to be impleaded as party to bring the petition within the ambit of Article 226 of the Constitution of India.

4. On the other hand, learned counsel appearing for the appellant has urged that if a writ petition is filed under Article 227 of the Constitution of India without impleading the Labourt Court as a party, then Letters Patent Appeal would not lie. But where the petition has been filed invoking jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, in such a situation, if the facts pleaded in the writ petition establish that the writ petition was essentially under Article 226 of the Constitution of India, then non-impleadment of the Labour Court would not result in the writ petition to be treated as a petition under Article 227 of the Constitution of India and the writ petition would have to be treated as a writ petition under Article 226 of the Constitution of India. He further urged that the appellant was not required to implead the Labour Court as party to the writ petition in view of the Full Bench decision of this Court in the case of Dilavarsinh Khodubha v. State of Gujarat and others, 1995 (1) GLH 110, decision of the Apex Court in the case of Savitridevi v. District Judge, Gorakhpur and others, AIR 1999 SC 976. Therefore, the argument of learned counsel for the appellant is that in view of the aforesaid decisions, the Labour Court is not required to be impleaded as party to the writ petition.

5. He has further urged that the Division Bench of this Court in the case of Principal, S.V. Doshi Girls High School and another v. Lilaben Somabhai Gadasa, 2012 (2) GLH 428 has laid down the correct law and, therefore, the Letters Patent Appeal filed by the appellant is maintainable and the preliminary objection raised by the learned counsel for the respondent deserves to be rejected.

6. We have carefully considered the argument of learned counsel for the parties. In our opinion, the law laid down by the Division Bench of this Court in the decision of Revaben in paragraphs 41 (2) and 41 (3) wherein it has been held that a writ petition under Article 226 would only lie if the order was passed by the Court or Tribunal or Authority of first instance, but not against the order where an appeal or revisional jurisdiction has been exercised is not in consonance with the view taken by Full Bench decision in the case of Dilavarsinh Khodubha (Supra), in paragraphs 12 and 13, it has been held that writ petition under Article 226 would lie and the order can be quashed under Article 226 even if the impugned order has been passed by the Courts and Tribunal while exercising appellate or revisional jurisdiction. The Division Bench of this Court in the decision of Revaben (Supra) has not considered the decision of Dilavarsinh Khodubha (Supra) while laying down the law in paragraphs 41 (2) and (3).

7. The other argument of learned counsel for the appellant is that the Division Bench of this Court in the case of Principal, S.V. Doshi Girls High School (Supra) had considered the decision of the Hon'ble Supreme Court in the case of Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another, AIR 1963 SC 786. The Division Bench of this Court in the decision of Revaben (Supra) in paragraph 37 had made the following observation :-

.....It appears that the said Division Bench did not take note of the decision of Udit Narain Singh Malpaharia (Supra)....

8. We find from reading of the decision of the Division Bench in the case of Principal, S.V. Doshi Girls High School (Supra) that the Division Bench had considered the decision of the Hon'ble Supreme Court in the case of Udit Narain Singh Malpaharia (Supra) in paragraph 6 of the judgment. Therefore, the observation made by the Division Bench of this Court in Revaben that the Apex Court decision was not considered by the earlier Division Bench is not correct.

Furthermore, the Division Bench in Principal, S.V. Doshi Girls High School (Supra) had also considered the decision of the Hon'ble Supreme Court in the case of Savitridevi (Supra) wherein the Hon'ble Supreme Court has held that impleading Judicial Officers disposing of civil proceedings, as party to the writ petition under Article 226 of the Constitution of India should be stopped and the Apex Court strongly deprecated such practice. This principle was also required to be considered by the Division Bench in the decision of Revaben which had been considered by the earlier Division Bench of this Court in the case of Principal, S.V. Doshi Girls High School (Supra).

9. For the aforesaid reasons, we are of the considered view that decision of the Division Bench of this Court in the case of Revaben wd/o Ambalal Motibhai and Ors. Vs. Vinubhai Purshottambhai Patel and others, reported in 2013 (1) GLH 440 requires reconsideration by a Larger Bench of this Court for considering the following questions :-

(1) Whether non-consideration of Full Bench decision of this Court in Dilavarsinh Khodubha (Supra) has materially impacted outcome of the decision of the Division Bench of this Court in the case of Revaben (Supra) ?

(2) Whether the Division Bench of this Court in Revaben's case (Supra) has fallen in inadvertent error in observing that the Division Bench decision in the case of Principal, S.V. Doshi Girls High School (Supra) did not consider the decision of the Hon'ble Supreme Court in the case of Udit Narain Singh Malpaharia (Supra) ?

Learned counsel appearing for the appellant has submitted that the applicability and validity of the Division Bench decision and three Judges Full Bench decisions are required to be considered while reconsidering the decision of Division Bench of this Court in the case of Revaben (Supra). Hence, the matter may be referred to the five Judges Full Bench. We cannot accept this submission because nominating an appropriate Bench is within the domain of Hon'ble the Chief Justice and it is the prerogative of Hon'ble the Chief Justice to nominate appropriate Bench.

10. It shall be open to the learned counsel for the parties to get the additional questions/issues framed before the Larger Bench which may be answered by the Larger Bench. The Larger Bench can also reframe or recast the questions referred by us. Therefore, we are referring the entire appeal on the questions of law as well as on merits, to be decided by the Larger Bench. The Larger Bench may also formulate such other questions which may arise according to the Larger Bench for effective adjudication of the points involved.

11. Since the applicability of the decision of the Revaben is arising in large number of cases, we direct the office to place the records before Hon'ble the Chief Justice at the earliest for nominating appropriate Bench as the applicability and validity of a Division Bench decisions and three Judges Full Bench decisions are required to be considered at the earliest.

12. Office is directed to place a copy of this order before Hon'ble the Chief Justice within 3 days from today for constituting an appropriate Bench.

Sd/-

(V.M.SAHAI, J.) Sd/-

(A.G.URAIZEE, J.) Savariya Page of 6

Gujarat State Road Transport Corporation v. Firoze M. Mogal & 1 Another

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondent's Arguments

Appellant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Gujarat State Road Transport Corporation v. Firoze M. Mogal & 1 Another

Comments