Madhya Pradesh High Court
Santosh Kushwah vs D And H Secheron Electrodes Pvt. Ltd. on 14 May, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
WA No. 1047 of 2024
(SANTOSH KUSHWAH Vs D AND H SECHERON ELECTRODES PVT. LTD.)
Dated : 14-05-2024
Shri Karpe Prakhar Mohan, learned counsel for the appellant.
The office has raised objection with regard to maintainability of the Writ
Appeal, since the petition was filed under Article 227 of the Constitution of
India and consequently order was passed exercising the power under Article
227 of the Constitution of India. Thus, this intra-Court Appeal is not
maintainable.
Learned counsel for the appellant/employer placed reliance on the Full
Bench decision of this Court in case of Shailendra Kumar Vs. Divisional
Forest Officer reported in (2017) 4 MPLJ 109.
In our view, the Court has partly allowed the petition, thereby modifying
the award passed by the Labour Court. Merely because employer has filed the
petition with a caption that it is filed under Article 227 of the Constitution of
India, it will not decide the character of order passed by learned Single Judge in
the instant case. It is mainly the nature of power exercised which will determine
whether the impugned order is passed under Article 226 or under Article 227 of
the Constitution of India. The Full Bench opined as under :-
''16. Therefore, we find that an order of the Labour Court or an
Industrial Tribunal is amenable to the writ of certiorari under
Article 226 of the Constitution. In exercise of writ of certiorari,
the High Court demolishes the order which it considers to be
without jurisdiction or palpably erroneous but does not substitute
its own views for those of the inferior tribunal. The
Constitutional Bench judgment of the Hon'ble Supreme Court
reported as T.C. Basappa v. T. Nagappa, AIR 1954 SC 440,
Signature Not Verified
Signed by: VATAN
SHRIVASTAVA
Signing time: 15-05-2024
10:20:38
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held as under:-
"7. The second essential feature of a writ of certiorari is that
the control which is exercised through it over judicial or quasi-
judicial tribunals or bodies is not in an appellate but
supervisory capacity. 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 but does not substitute its
own views for those of the inferior tribunal. The offending
order or proceeding so to say is put out of the way as one
which should not be used to the detriment of any person [Vide
Per Lord Cairns in Walshall's Overseers v. London and
North Western Railway Co., (1879) 4 AC 30, 39.]"
1 7 . But issuance of the directions after setting aside an order
passed in exercise of powers conferred under Article 226, is only
under Article 227 of the Constitution. Therefore, the Court
exercises composite jurisdiction which will make intra Court
appeal maintainable. Thus the order passed by the Division
Bench in Superintendent, Rajmata Vijaya Raje Scindia
Regional Agricultural Research Station, Ujjain's Case
(Supra) does not lay down correct principal of law and is thus
overruled.
(Emphasis Supplied)
In view of the Full Bench decision, this writ appeal is maintainable. We
are unable to hold that the impugned order passed by the learned Single Judge
was in exercise of power under Article 227 of the Constitution of India only.
The objection is overruled.
Issue notice to the respondent.
Ms. Rachana Zamindar accepts notice on behalf of the respondent.
I.A. No. 3647/2024 has been filed seeking interim stay of the impugned
order. Since, already an order staying the impugned order has been passed in
connected cases filed by the employer, therefore, no further orders are
necessary in this appeal. Accordingly, I.A. stands closed.
List this case alongwith W.A. No. 834/2024.
(S. A. DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
Vatan
