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TMI Blog2012 (10) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to invoke the constitutional remedy under Article 226 of the Constitution -When a petition is filed under Articles 226 and 227 of the Constitution and the facts justify the filing of such a petition, it is not open to the Court to hold that Article 226 need not have been invoked, on the ground that Article 227 is clothed with the power to grant the same relief thus depriving the party of a right to elect or choose a remedy High Court was not justified in holding that the Letters Patent Appeal was not maintainable since the High Court did not consider the nature of the controversy and the prayers involved in the Writ Petition - LPA NO.261 OF 2005 IN WP NO.1743 OF 2005 WITH LPA NOS.26/2011 & 304 TO 308 OF 2010 - - - Dated:- 17-3-2011 - DR. D.Y. CHANDRACHUD, ANOOP V. MOHTA AND SMT. ROSHAN DALVI, JJJ. Mr. Kiran Bapat for the Appellant. Mr. V.P. Vaidya for the Respondents. Mr. A.V. Anturkar against the Reference. JUDGMENT (PER DR. D.Y. CHANDRACHUD, J.) : The issue whether an appeal can lie under clause 15 of the Letters Patent against a decision of a Single Judge rendered in a Petition invoking Articles 226 and/or 227 of the Constitution has defied con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of Hon'ble Mrs.Justice Ranjana Desai and Hon'ble Mr.Justice D.B. Bhosale. The reason for the reference is a discordant note struck by a Division Bench consisting of V.G. Palshikar and D.B. Bhosale, JJ. in a judgment dated 19 September 2005 in National Textile Corporation (SM) Ltd. vs. Devraj Chandrabali Pai Letters Patent Appeal 41 of 2005 in Writ Petition 5180 of 1996. In the case before the Division Bench, a workman who was chargesheeted by the employer for misconduct was terminated from service upon enquiry. The Labour Court on an application under Section 78 of the Bombay Industrial Relations Act, 1946, came to the conclusion that the punishment of dismissal was shockingly disproportionate to the misconduct proved and ordered reinstatement with continuity of service and full back wages. In an appeal by the employer, the Industrial Court set aside the order of the Labour Court. In a challenge by the workman to the order of the Industrial Court, in a petition which invoked Articles 226 and 227 of the Constitution, a Learned Single Judge of this Court delivered judgment which was questioned in a Letters Patent Appeal. The Division Bench dismissed the appeal on the ground of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution of India, Article 226 also can be invoked by a party? 4. Is it open for this court while dealing with a petition filed under Article 226 of the Constitution and/or 227 of the Constitution of India or a Letters Patent Appeal under Clause 15 of the Letters Patent arising from the judgment in such a petition to find out whether the facts justify the party in filing the petition under Article 226 and/or 227 of the Constitution of India? 5. Can the cause title, averments and the prayers made in the petition be taken into account while deciding whether the petition is one under Article 226 or 227 of the Constitution of India? 6. If the Petitioner elects to invoke Article 226 and/or 227, and facts justify doing so, is it open for the learned single judge to express as to what jurisdiction he/she was exercising and if he/she expresses to have exercised jurisdiction under Article 227 only, is the Letters Patent Appeal against such an order maintainable? 7. Where facts justify and jurisdiction of this court under Article 226 and 227 of the Constitution of India is invoked, is it lawful for this court to hold that the jurisdictional errors or errors resulting in miscarriage of j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent on the face of the proceedings such as when the decision is based on clear ignorance or disregard of the provisions of law. It is a patent error which can be corrected by Certiorari, but not just a wrong decision. 4. In T.C.Basappa vs. T.Nagappa, AIR 1954 SC 440 the nature and extent of the writ jurisdiction vested in the High Court under Article 226 of the Constitution was considered. Mr.Justice Mukherjea, who delivered the judgment of the Court, held that in view of the express provisions of the Constitution, it is not necessary to look back at the early history or the procedural technicalities of these writs in English law. The Court held that a writ in the nature of certiorari could be issued in all appropriate cases and in appropriate manner so long as the broad and fundamental principles were kept in mind. Those principles were delineated as follows : In granting a writ of certiorari, the superior Court does not exercise the powers of an appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior Tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however, grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. (emphasis supplied). In Dwarka Nath vs. Incometax Officer, AIR 1966 SC 81 Mr.Justice K.Subba Rao (as the Learned Chief Justice then was), reiterated that it is well settled that a writ of certiorari can be issued only to quash a judicial or a quasi judicial act and not an administrative act . The Learned Judge noted that Article 226 was couched in comprehensive phraseology and it exfacie conferred wide powers on the High Court to reach injustice wherever it is found . This was, however, not to say that the High Courts can function arbitrarily und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned order are allowed to be canvassed in writ proceedings under Art 32, logically, it would be difficult to make a valid distinction between the orders passed by the High Courts inter partes, and those which are not inter partes in the sense that they bind strangers to the proceedings. Therefore, in our opinion, having regard to the fact that the impugned order has been passed by a superior Court of Record in the exercise of its inherent powers, the question about the existence of the said jurisdiction as well as the validity or propriety of the order cannot be raised in writ proceedings taken out by the petitioners for the issue of a writ of certiorari under Art.32. Hence an order passed by the High Court as a superior Court of record was held not to be amenable to correction under Article 32 of the Constitution. Justice Sarkar rejected the argument that High Courts were inferior Courts as appeals lie from them to the Supreme Court. The Learned Judge noted that there were many Tribunals from which no appeals lie to the High Court upon which the Constitution has conferred the powers to issue a writ of certiorari. If appealability was a test, then the High Court would not be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not avail of the remedy under Section 115 of the Code of Civil Procedure, 1908 after amendment, filed a petition in the High Court under Article 226. The High Court dismissed the petition holding that it was not maintainable. While allowing the appeal, the Supreme Court held that the order and proceedings of a judicial Court subordinate to the High Court are amenable to writ jurisdiction under Article 226. This aspect of the decision in Surya Dev Rai has been dissented from in Radhey Shyam vs. Chhabi Nath, (2009) 5 SCC 616 and referred to a larger Bench. The referring judgment adopts the view that the aforesaid observations in Surya Dev Rai are not consistent with the law which has been consistently followed in earlier decisions. The reference to the larger Bench of the correctness of the decision in Surya Dev Rai was because the issues arose out of a properly constituted suit in a civil court for the grant of an injunction. The position that the writ of certiorari is available to correct errors of jurisdiction on the part of an inferior Court or tribunal is not affected. That the writ of certiorari under Article 226 is available to correct errors of jurisdiction of inferior C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es governing the parameters for the exercise of jurisdiction under Article 226 or 227 of the Constitution, the Supreme Court has cautioned that these principles cannot be tied down in a straitjacket formula or within rigid rules. 10. In Shalini Shyam Shetty vs. Rajendra Shankar Patil, (2010) 8 SCC 329 the Supreme Court considered the provisions of the Bombay High Court Original Side Rules, 1957 and the Bombay High Court Appellate Side Rules, 1960. The Supreme Court observed that petitions under Articles 226 and 227 are treated differently: To a proceeding under Article 227 of the Constitution only the Appellate Side Rules of the High Court apply, but to a proceeding under Article 226, either the Original Side or the Appellate Side Rules, depending upon the situs of the cause of action, will apply: It is clear that to a proceeding under Article 227 of the Constitution of India only the Appellate Side Rules of the High Court apply. But to a proceeding under Article 226, either the Original Side or the Appellate Side Rules, depending on the situs of the cause of action will apply. : Therefore, the High Court Rules treat the two proceedings differently inasmuch as a proceeding u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restraint on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (Waryam Singh v. Amarnath, AIR 1954 SC 215) and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality. Maintainability of Appeals: 11. As we approach the issues which arise for our determination, we begin by stating the well settled position in law that an appeal under Clause 15 of the Letters Patent, is available against a judgment of a Single Judge in a Petition which properly invokes the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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. 13. A conflict arose between different Benches of this Court on the interpretation of the judgment of the Supreme Court in Umaji (supra). In Sushilabai Laxminarayan Mudliyar vs. Nihalchand Waghajibhai Shaha, 1989 Mh.L.J. 695 a Full Bench while considering a reference made to it held that even when in the cause title of an application both Articles 226 and 227 of the Constitution have been mentioned, the Learned Single Judge is at liberty to decide, according to the facts of each particular case, whether such an application ought to be dealt with only under Article 226 of the Constitution or under Article 227 read with Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court under Art.226, it is not open to the High Court to exercise jurisdiction under Art. 227 of the Constitution when a relief can be granted to the party under the Article invoked. Therefore, there cannot be a test whether the High Court was justified in exercising its powers or the reliefs granted were under Art. 227 of the Constitution; (iii) Where the facts justify filing an application either under Art. 226 or under Art. 227 and the party chooses to file the application under both these Articles, the Court ought to treat the application as one filed under Art. 226 if the substantial part of the order appealed against is under Art. 226. If in deciding such an application made under Arts. 226 and 227 of the Constitution, the Single Judge of the High Court grants ancillary directions which pertain to Art. 227, then by the reason of such ancillary directions being given in the order, the petition should not be treated as one under Art. 226, so that a party is not deprived of his valuable right of an intracourt appeal under Clause 156 of the Letters Patent. 15. In Lokmat Newspapers Pvt. Ltd. vs. Shankarprasad, AIR 1999 SC 2423 a complaint filed by the Respondent under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the appellant that the learned Single Judge had refused to interfere only under Article 227 of the Constitution of India when he dismissed the Writ Petition of the respondent. After adverting to the judgment in Umaji's case, the Supreme Court concluded thus: It was open to the respondent to invoke jurisdiction of the High Court both under Articles 226 and 227 of the Constitution of India. Once such 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) 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 learned single Judge. 16. In several decisions of a comparatively recent vintage, the Supreme Court has considered the maintainability of appeals under Clause 15 of the Letters Patent against decisions of Single ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noted that apart from the fact that the petition was labeled under Article 226 of the Constitution, it was clear that the grounds raised in the petition suggested that the petition was not only under Article 227, but also under Article 226 of the Constitution. Consequently, the contentions raised and the facts stated in the petition justified the Respondent in filing an application both under Articles 226 and 227 of the Constitution. A similar view was taken by the Supreme Court in Shahu Shikshan Prasarak Mandal vs. Lata P. Kore. (2008) 13 SCC 525. In M.M.T.C. vs. Commissioner of Commercial Tax, (2009) 1 SCC 8 the Supreme Court noted that the High Court had merely proceeded on the basis of the nomenclature given in the Petition which invoked Article 227 of the Constitution. A Division Bench of the High Court had held that the order of the Single Judge was passed in exercise of the power of superintendence under Article 227 against which a Letters Patent Appeal was not maintainable. While reversing that view, the Supreme Court observed that the High Court did not consider the nature of the controversy and the prayers involved in the Writ Petition . 18. The principles which emerg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ically held that there is no manner of doubt that orders and proceedings of a Court subordinate to the High Court are amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution where the Court has acted in excess of jurisdiction, or without jurisdiction or has failed to exercise jurisdiction. Similarly, the writ can be issued where in exercise of its jurisdiction the Court acts illegally or improperly. The Supreme Court held that any authority or body of persons constituted by law or having legal authority to adjudicate upon questions affecting the rights of a subject and enjoined with a duty to act judicially or quasijudicially is amenable to the certiorari jurisdiction of the High Court. The proceedings of Courts subordinate to the High Court can, it has been held, be VBC 38 lpa261.05 subjected to certiorari. The decision of the Division Bench in National Textile Corporation, therefore, does not represent the correct position in law. 20. Upon this discussion, we now proceed to answer the questions formulated in the order of reference: Re: 1 : It is not a correct proposition in law that this Court cannot correct jurisdictional errors or errors re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27 and this has to be determined on the facts of each case having due regard to (i) the nature of the jurisdiction invoked; (ii) the averments contained in the petition; (iii) the reliefs sought; and (iv) the true nature of the principal order passed by the Single Judge. The true nature of the order passed by the Single Judge has to be determined on the basis of the principal character of the relief granted. The fact that an ancillary direction has been issued under Article 227 of the Constitution would not dilute the character of an order as one with reference to Article 226. What has to be ascertained is the true nature of the order passed by the Single Judge and not what provision is mentioned while exercising this power. Re: 7 : Where a petition is filed under Articles 226 and 227 of the Constitution and the facts justify the filing of such a petition, it is not lawful for the Court to hold that jurisdictional errors or errors resulting in a miscarriage of justice committed by the subordinate Courts or Tribunals can be corrected only by exercising powers under Article 227 (and that the mentioning of Article 226 is redundant), thus depriving the party of a right of app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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