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SCA/12382/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12382 of 2010
With
SPECIAL
CIVIL APPLICATION No. 15308 of 2010
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THE
BHAGYODAYA CO-OPERATIVE BANK LIMITED - Petitioner(s)
Versus
NATVARLAL
K PATEL & 2 - Respondent(s)
=================================================
Appearance :
MR
GM JOSHI for Petitioner(s) : 1,
MR. ANKIT SHAH for Respondent(s) :
1,
MR SHALIN N MEHTA for Respondent(s) : 2 -
3.
=================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 23/06/2011
ORAL ORDER
(Per
: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)
The
short question is whether while challenging the award passed by the
Labour Court or the Industrial Court or the Industrial Tribunal,
particularly in a case where no specific relief is sought for against
the concerned Labour Court/Industrial Court/Industrial Tribunal, the
concerned Labour Court/Industrial Court/Industrial Tribunal is
required to be joined as a party respondent.
2. In
the case of Steel Authority
of India vs. GM Panchayat, reported in 2004 (1) GLR 729,
at para 34, a Division Bench of this Court giving reference to the
Supreme Court decision in the case of Udit
Narain Singh Malpaharia vs. Additional Member, Board of Revenue,
Bihar, reported in AIR 1963 SC 786, observed that the
Tribunal is not a necessary party where the petition is filed under
Article 227 of the Constitution of India, but the Tribunal is a
necessary party where the petition is filed under Article 226 of the
Constitution of India and appropriate reliefs are claimed.
3. In
a subsequent decision in the case of Gujarat
State Road Transport Corporation vs. Pravin Joshi,
reported in 2004 (4) GLR 3379, another Division Bench of this Court
observed at para 21 that “Therefore, the question that requires
our consideration is as to whether without joining the Labour Court
as a party in a petition, was the petition not maintainable. The
obvious answer could be ‘no'”.
4. The
learned Single Judge having noticed the aforesaid two decisions,
observed that the aforesaid decisions are conflicting decisions and
referred the matter for hearing by a Larger Bench.
5. Now
it is brought to our notice another decision of a Division Bench of
this Court in the case of Dilipbhai
Maneklal Vyas vs. Torrent Power AEC Co., reported in 2007
(2) GLH 474, wherein at para 31, the Division Bench observed that
“the appellant has not joined the Industrial Tribunal as one of
the respondents in petition nor claim any relief as such against the
Industrial Tribunal. Moreover, even writ of certiorari has not been
prayed for and hence there is no question of issuance of such writ in
favour of the petitioner/appellant.” The aforesaid
observations were made while referring to the Division Bench decision
in the case of Steel
Authority of India (supra).
6. Similar
issue fell for consideration recently before another Division Bench
of this Court in Gustadji
Dhanjisha Buhariwala vs. Nevil B Buhariwala, reported in
2011 (2) GLH 147. In the said case, referring to the Supreme Court
decision in Shalini Shyam
Shetty vs. Rajednra Shankar Patel, reported in (2010) 8
SCC 329, the Division Bench has observed at para 54 that “in a
petition for relief under Article 226 of the Constitution, the
Court/Tribunal whose order is impugned in the petition must be made a
party to the petition so that the writ sought from the Court can go
against the Court/Tribunal, but if the petition is for relief under
Article 227 of the Constitution, it is well settled that the
Court/Tribunal whose order is impugned in a petition need not be a
party in the writ petition, the reason being by entertained the
petition under Article 227 of the Constitution the High Court
exercises its power of superintendence, which is analogous to the
revisional jurisdiction.”
7. Though
the learned Single Judge observed that there are two conflicting
decisions in the case Steel
Authority of India vs. GM Panchayat, reported in 2004 (1)
GLR 729 and in the case of Gujarat
State Road Transport Corporation vs. Pravin Joshi,
reported in 2004 (4) GLR 3379, if all the judgments are read, it may
clarify that one or other judgments may hold good at appropriate
case, which depends upon the nature of the petition i.e. whether the
petition under Article 226 or article 227 of the Constitution or the
petition under Article 226 read with Article 227 of the Constitution.
However, for proper appreciation, we are of the view that the matter
be heard by a Larger Bench preferably on 5th July, 2011 at
2.30 PM.
The
matter be placed before the Chief Justice in its administrative side
for appropriate orders.
[S.
J. MUKHOPADHAYA, CJ.]
[J.
B. PARDIWALA, J.]
sundar/PPS
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