Supreme Court Of India

Hindustan Machine Tools Limited V. Industrial Tribunal, Jaipur and Another

Civil Appeal No. 339 Of 1997. 24-01-1997

JUDGMENT

1. Special leave granted.

2. We have heard the learned counsel for the parties.

3. The only question that falls for consideration in this appeal is whether the writ petition that was filed by the appellant in the High Court is to be treated as a petition filed under Article 227 of the Constitution and the special appeal filed before the Division Bench against the judgment of the learned Single Judge dismissing the said writ petition was not maintainable. By the impugned judgment the learned Judges of the Division Bench of the High Court have held that having regard to the nature of the relief prayed for and the judgment and order passed by the learned Single Judge, the writ petition filed in the High Court was essentially a petition under Article 227 of the Constitution and that merely the label given by the petitioner would not be sufficient to hold that the petition was under Article 226 of the Constitution. On that view the High Court has held that the special appeal was not maintainable.

4. We have carefully perused the writ petition which was filed by the appellant in the High Court. The writ petition has been described as having been filed under Article 226 of the Constitution. In paragraph 5 of the writ petition the award of the Industrial Tribunal dated 21-9-1984 has been assailed on various grounds. One of the grounds is that the order of reference dated 6-10-1982 was not valid and beyond the scope of Section 10(l) (d) read with Section 12 of the Industrial Disputes Act, 1947. It has been submitted that insofar as the establishment is concerned, the appropriate Government is the Central Government and that the very initiation of conciliation proceedings before the officers of the State of Rajasthan was incompetent. In paragraph 6 of the said writ petition it has been stated that the petitioner has no other alternative remedy except to approach the Hon'ble Court in its extraordinary jurisdiction by way of filing this writ petition. In the writ petition the relief was sought in the following terms

"It is, therefore, prayed that your Lordships be pleased to call for and examine the entire record relating to this case and the impugned Award Ex. 7 dated 21-9-1984 read with Ex. 5 be declared to be null and void insofar as it relates to demand No. 3 and the same may be quashed and set aside to that extent." *

5. The contents of the writ petition clearly indicate that by filing the writ petition the appellant was invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution and the said writ petition has to be treated as a petition filed under Article 226 of the Constitution. The Division Bench of the High Court was in error in holding that the said petition was essentially a petition under Article 227 of the Constitution. Once it is held that the petition was a writ petition filed under Article 226 of the Constitution, the special appeal filed by the appellant against the judgment of the learned Single Judge was maintainable under Section 18 of the Rajasthan High Court Ordinance, 1949

6. The appeal is, therefore, allowed, the impugned judgment of the High Court holding that the special appeal was not maintainable is set aside and D. B. Civil Special Appeal (Writ) No. 196 of 1993 filed by the appellant against the judgment of the learned Single Judge is remitted to the High Court for consideration on merits. The High Court is requested to hear and dispose of the said special appeal expeditiously. The interim order that was passed in the special appeal will continue till any further order is passed by the High Court in that regard. No order as to costs.

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