TaxTMI 
TaxTMI 
2008 (7) TMI 968
X X X X Extracts X X X X
X X X X Extracts X X X X
.... FACTUAL BACKGROUND 3. To appreciate the controversy raised in the present appeals, few relevant facts may be noted. 4. Vikram Cement (`Company' for short) is engaged in the business of manufacturing cement of different grades and has its plant at Vikram Nagar, Khor, Madhya Pradesh. Appellants in one set of appeals are employees engaged and working in the factory of the Company. It was the case of the Company that with a view to rationalize its manpower, it introduced a Voluntary Retirement Scheme (`the Scheme' for short) on July 12, 2001 in the Cement Plant. The said scheme provided voluntary retirement of workmen who had either completed 40 years of age or put in at least 10 full years of service. They were to be paid benefits as provided in the scheme. The scheme was displayed on the Notice Board and widely publicized through local press. It appears that out of 1500 employees, about 460 employees opted for voluntary retirement which was accepted by the Company and they were granted all benefits towards `full and final settlement' in terms of the scheme. This was done during July-September, 2001. According to the Company, the workmen received those benefits, issued....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dated September 16, 2003 to file written statement so that the matter may be decided on merits. The Company challenged the said order by approaching the Industrial Court, Madhya Pradesh at Indore but the said application was also dismissed by the Industrial Tribunal vide an order dated February 11, 2004. The Company then filed reply contending that the applications filed by the `so called workmen' were clearly an `afterthought', more so, when they had accepted the amounts/benefits under the scheme. Hence, the claim was wholly ill-founded. It was averred by the Company that some of the workmen had even approached the Authority under the Payment of Gratuity Act for increased amount of gratuity, thus, clearly exhibiting and admitting to the severance of relationship of master and servant between the parties. It was contended that the workmen could not be allowed to resile from the stand taken by them earlier. They were estopped from challenging the factum of voluntary retirement. 6. The Company moved the Labour Court on November 9, 2004 requesting the Court to frame three additional issues viz., 4(a), 4(b) and 4 (c) and hear them as preliminary issues. The said issues read as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erlocutory in nature and did not decide any controversy. It merely deferred the decision on the question as to maintainability of claim along with other issues. Such order could not be said to be without jurisdiction so as to interfere with it in exercise of supervisory jurisdiction under Article 227 of the Constitution. No finding much less categorical finding one way or the other had been recorded and rights of the parties were yet to be crystallized by the Court. It was also observed that whether a particular issue arising from the pleading between the parties be tried as preliminary issue or not should be examined by the Court keeping in view the provisions of Order XIV of the Code of Civil Procedure, 1908 (hereinafter referred to as `the Code'). On the facts and in the circumstances of the case, both the Courts were right in not deciding the issues as to jurisdiction and maintainability of claim as preliminary issues. No interference was, therefore, called for. Accordingly, the writ petition was dismissed. EARLIER SLP 11. The Company challenged the said order by filing Special Leave Petition in this Court. Notice was issued and interim stay of further proceedings was gr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Division Bench holding intra court appeal not maintainable as also by the order passed by the Labour Court, confirmed by the Industrial Court and also by the High Court not deciding issues of jurisdiction and maintainability of petitions filed by the employees as preliminary issues before other issues are taken up for consideration. Their Special Leave Petitions were also ordered to be heard along with Special Leave Petitions filed by the workmen and that is how all the matters are before us. SUBMISSIONS OF COUNSEL 14. We have heard learned counsel for the parties. 15. The learned counsel for the workmen vehemently contended that the order passed by the Division Bench of the High Court was without jurisdiction so far as it directed the workmen to refund the amount received by them. The counsel submitted that once the Division Bench held that intra court appeals were not maintainable, it had no power to pass any order directing a party to do or not to do something. Such direction is without authority of law, there is total lack of jurisdiction and the order is non est. No direction of refund of amount, therefore, could have been issued by the Division Bench. On that ground a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Constitution in the writ petition is not material. Similarly, observations of learned Single Judge that he is exercising the power under a particular provision of the Constitution is also not decisive. The Division Bench was required to apply its mind independently and to consider the nature of controversy raised before the Single Judge. And if it finds that the petition was under Article 226 of the Constitution, the Division Bench was enjoined to entertain intra-court appeals and to decide them on merits. The counsel alternatively submitted that even if the Division Bench felt that the writ petitions were under both the Articles, viz. Article 226 and Article 227 of the Constitution, as per settled law, no party can be deprived of right of intra court appeal merely by referring to the other Article i.e. Article 227 of the Constitution, over and above Article 226 of the Constitution under which such right is available to the party aggrieved by an order passed by a Single Judge. It was, therefore, submitted that the appeals of the Company should be allowed and the matter may be remitted to the Division Bench of the High Court so as to enable the Court to decide intra Court appea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by the High Court in certiorari-jurisdiction. But the High Court also committed the same error. Hence, this Court may interfere with the said order by directing the Labour Court to decide issues 4 (a), 4(b) and 4(c) as preliminary issues. Even if intra court appeals are held not maintainable, the Company is before this Court under Article 136 of the Constitution and an appropriate order, therefore, may be made by the Court. MAINTAINABILITY OF INTRA COURT APPEAL 20. So far as intra court appeals are concerned, the learned counsel for the Company strenuously urged that the Division Bench of the High Court was in error in holding that intra court appeals were not maintainable. He submitted that Adhiniyam conferred such right on the party aggrieved by a decision of a Single Judge of the High Court. It was also submitted that this Court at the time of hearing of Special Leave Petition considered the fact that intra court appeal was available to the aggrieved party under the Adhiniyam and disposed of Special Leave Petition by giving liberty to the appellant to approach the Division Bench of the High Court though notice was issued and interim relief was also granted earlier. It was al....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ided in accordance with the procedure as may be prescribed by the High Court. 23. Section 3 enables the High Court to make Rules under the Act for carrying out purposes of the Act. Section 4 repeals the Madhya Pradesh Uchcha Nyayalaya (Letters Patent Appeals Samapthi) Adhiniyam, 1981. 24. Bare reading of sub-section (1) of Section 2 of the Act, quoted above, leaves no room for doubt that it allows a party aggrieved by a decision of a Single Judge of the High Court to appeal to a Division Bench of the High Court if a Single Judge has rendered a judgment or passed an order in exercise of original jurisdiction under Article 226 of the Constitution. Proviso to sub-section (1) expressly declares that no such appeal shall lie against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution. 25. It is, therefore, clear that if the order is passed by a Single Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution, an intra court appeal would lie. If, on the other hand, a Single Judge exercises power of superintendence under Article 227 of the Constitution, intra court appeal would not be competent. 26. Pre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Tribunal was challenged in a writ petition under Article 227 of the Constitution before the High Court of Bombay (Nagpur Bench). A Single Judge allowed the petition. The order passed by the Single Judge was then challenged by the aggrieved party by filing Letter Patent Appeal before the Division Bench under Clause 15 of the Letters Patent. The Division Bench of the High Court dismissed the appeal as not maintainable. The said decision was challenged by the appellant in this Court. 28. This Court observed that the High Court of Judicature at Bombay was established by Letters Patent dated June 26, 1862 issued by the British Crown pursuant to the authority conferred on it by the Indian High Courts Act, 1861 (24 and 25 Vict., c. 104). The Letters Patent also conferred right to institute an appeal to the Division Bench of the High Court against the `judgment' rendered by a Single Judge of the same court in certain cases. 29. Considering the history, tradition and development of Letters Patent amended from time to time, the Government of India Acts, 1915 and 1935 and the provisions of the Constitution, this Court ruled that in case a Single Judge of the High Court has given a j....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g under Article 226 simpliciter can be disposed of by a Single Judge observing that he is exercising power of superintendence under Article 227 of the Constitution. Can such statement by a Single Judge take away from the party aggrieved a right of appeal against the judgment if otherwise the petition is under Article 226 of the Constitution and subject to an intra court/Letters Patent Appeal? The reply unquestionably is in the negative [see Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors., (1998) 5 SCC 749]. 33. In our considered opinion, however, on the facts and in the circumstances of the present case, the petitions instituted by the Company and decided by a Single Judge of the High Court could not be said to be original proceeding under Article 226 of the Constitution. We are clearly of the view that the learned Single Judge had decided the petitions in exercise of power of superintendence under Article 227 of the Constitution. 34. We have already referred to the facts of the case. According to the Company, voluntary retirement was accepted by the employees. They thereafter challenged the action on the ground that the acceptance was not voluntary but they were co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ounded. Firstly, it was urged that no such contention was raised by the workmen in reply to the writ petitions filed by the Company, nor it was taken before the learned Single Judge at the time of hearing of petitions. Nor such argument was raised in this Court when earlier Special Leave Petition was filed by the Company in this Court. It was also not taken when the Company filed intra court appeals before the Division Bench of the High Court after disposal of Special Leave Petition by this Court. Even in Special Leave Petition filed in this Court by the workmen, no such point has been raised. A question whether a petition is barred by res judicata or under Rule 4 of Order XXIII of the Code is not a `pure' question of law. It is a question of fact or at any rate, a mixed question of law and fact. In absence of pleadings and necessary materials in support of such plea, petitions cannot be dismissed on the bald assertion by a party that they were not maintainable. 37. Let us consider legal position on this issue. 38. In the leading case of Daryao v. State of U.P., (1962) 1 SCR 574, a Constitution Bench of this Court was called upon to decide whether withdrawal of a writ petitio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ubsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in Sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in Sub-rule (3) in order to prevent the abuse of the process of the Court". (emphasis supplied) 41. In A.K. Bhattacharya v. Union of India, 1991 Supp (2) SCC 109, the petitioner filed a writ petition in the High Court of Gauhati under Article 226 of the Constitution seeking Selection Grade in Tripura Civil Service and also promotion to the IAS cadre. A statement was made by the Advocate General that the case of the petitioner would be considered for Selection Grade in Tripura Civil Service. The petitioner, in view of the said statement, did not press the second relief. Subsequently, however, the petitioner prayed for that....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... same point in this litigation. Courts moved upon a prerogative writ are not the forum to flog a dead horse or to resuscitate a ghost already laid to rest". (emphasis supplied) 46. In Bakhtawar Singh & Anr. v. Sada Kaur & Anr., (1996) 11 SCC 167, this Court observed that if the plaintiff withdraws the suit and there is no evidence to show that the suit was bound to fail by reason of some `formal' defect or there were sufficient grounds for allowing the plaintiff to institute a fresh suit in respect of the same subject matter and for the same relief, after the withdrawal of the earlier suit, the action of filing fresh suit would be barred under Order XXIII of the Code. 47. In K.S. Bhoopathy & Ors. V. Kokila & Ors., (2000) 5 SCC 458, this Court stated that the Court has to discharge the duties mandated under the provisions of the Code in taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation for the same cause of action. 48. We may also refer to a recent decision of this Court in Sarva Shramik Sangathan (KV), Mumbai v. State of Maharashtra & Ors., (2008) 1 SCC 494. In that case, an ap....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission". (emphasis supplied) 52. On the facts of the case, however, we are unable to uphold the argument on behalf of the workmen that the Company did not want to prosecute the petitions and had given up its claim against the order passed by the Labour Court and confirmed by the Industrial Court. The record reveals that the Company filed one writ petition against one employee which was registered as Writ Petition No. 3060 of 2005. It also filed another petition against the remaining employees (236) which was registered as Writ Petition No. 3471 of 2005. Since the other petition was against several employees, the Registry of the High Court raised an objection that it was under `defect'. It was, therefore, not placed for admission-hearing. In an order, dated October 3, 2005, the Cour....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... a Court assumes jurisdiction to entertain, deal with and decide the claim. 55. A `jurisdictional fact' is one on existence of which depends jurisdiction of a Court, Tribunal or an Authority. If the jurisdictional fact does not exist, the Court or Tribunal cannot act. If an inferior Court or Tribunal wrongly assumes the existence of such fact, a writ of certiorari lies. The underlying principle is that by erroneously assuming existence of jurisdictional fact, a subordinate Court or an inferior Tribunal cannot confer upon itself jurisdiction which it otherwise does not possess. 56. The counsel referred to a recent decision of this Court in Arun Kumar v. Union of India, (2007) 1 SCC 732. Speaking for the Court, one of us (C.K. Thakker, J.) observed: "A `jurisdictional fact' is a fact which must exist before a Court, Tribunal or an Authority assumes jurisdiction over a particular matter. A jurisdictional fact is one on existence or non-existence of which depends jurisdiction of a court, a tribunal or an authority. It is the fact upon which an administrative agency's power to act depends. If the jurisdictional fact does not exist, the court, authority or officer cannot ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t this Court has held that statutory Tribunals must decide all issues raised by the parties. This is particularly true to industrial disputes. Strong reliance was placed on D.P. Maheshwari v. Delhi Administration, (1983) 4 SCC 293. Dealing with a similar argument, this Court said: "There was a time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. We think it is better that tribunals, particularly those entrusted with the task of adjudicating labour disputes Where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Article 226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction of this Court under Article 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from C....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., in appealable cases, by forbearing from deciding on all the issues joined, not infrequently oblige this Committee to recommend that a cause be remanded which might otherwise be finally decided on appeal. This is certainly a serious evil to the parties litigant, as it may involve the expense of a second appeal as well as that of another hearing below. It is much to be desired, therefore, that in appealable cases the Courts below should, as far as may be practicable, pronounce their opinions on all the important points". (emphasis supplied) 67. The above principle has been consistently followed. This Court dealing with the provisions of Order XIV Rule 2 (prior to the amendment Act of 1976), in Major S.S. Khanna v. Brigadiar F.J. Dillion, (1964) 4 SCR 409, stated; "Under Order 14 Rule 2, Code of Civil Procedure, where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r the Company contended that the workmen had opted for and accepted voluntary retirement under the scheme floated by the employer and had received all the benefits thereunder. Thereafter it was not open to them to turn round and challenge the action of the Company. The workmen cannot `blow hot and cold', `fast and loose' or `approbate and reprobate'. The counsel, in this connection, referred to a number of decisions on the general principle of estoppel as also cases relating to acceptance of voluntary retirement by employees. 71. The learned counsel for the workmen urged that the case of the employees was that they had not opted for the scheme and the `so called' voluntary retirement is no retirement in the eye of law. The phrase `voluntary retirement scheme' itself presupposes that acceptance of retirement should be voluntary and must have been opted by employees with `free consent'. The counsel submitted that the workmen never accepted the scheme with free consent but it was thrust upon them and under compulsion, duress and coercion, they were forced to submit to the illegal action of the Company. That was the reason for the workmen to approach Labour Cou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ents has no objection to the benefits being refunded to the employer during the pendency of the case before the Labour Court subject to the result of the case". 75. The learned counsel in this connection referred to a leading decision of this Court in Kiran Singh v. Chaman Paswan, (1955) 1 SCR 117. Dealing with the provisions of Code of Civil Procedure, 1908 and jurisdiction of Civil Courts, this Court stated; "It is fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction ...strikes on the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties." (emphasis supplied) 76. Reference was also made to a recent decision of this Court in Harshad Chiman Lal Modi v. DLF Universal Ltd. & Anr., (2005) 7 SCC 791. Referring to Kiran Singh as also several other decisions, it was held by this Court that if the Court has no jurisdiction to entertain a particular claim or matter, neither acquiescence....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d to be illegal or contrary to law and those issues will be decided by the Labour Court along with other issues on merits, the Labour Court will consider whether the Company was right in contending that the workmen accepted retirement voluntarily and there was cessation of relationship of master and servant between them and the Claim Petitions were not maintainable. In the circumstances, it would not be proper for this Court to express any opinion at this stage on merits. A short question which remains to be considered is whether on the facts and in the circumstances of the case, the direction of the High Court can be said to be unjust, unfair or unreasonable? 80. Now, it is well settled that jurisdiction of High Courts under Articles 226 and 227 is discretionary and equitable. Before more than half a century, the High Court of Allahabad in the leading case of Jodhey v. State, AIR 1952 All 788 observed; "There are no limits, fetters or restrictions placed on this power of superintendence in this clause and the purpose of this Article seems to be to make the High Court the custodian of all justice within the territorial limits of its jurisdiction and to arm it with a weapon that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....an order passed on review by the Government was illegal since no opportunity of hearing was afforded and the High Court was wrong in not setting aside the said order. This Court, however, did not interfere with the order passed by the High Court observing that "if the High Court had quashed the order passed by the Government, it would have restored an illegal order and would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi". In the opinion of this Court, therefore, the High Court was right in refusing to exercise discretionary power in the circumstances of the case. 84. In Commissioner of Income Tax, Madras v. Vinod Kumar Didwania, AIR 1987 SC 1260, certain prohibitory orders under the Income Tax Act, 1961 were passed against the assessee in connection with removal of goods. By filing a petition under Article 226 of the Constitution, the assessee challenged the legality of those orders. He obtained ex parte interim injunction, removed the goods and thereafter withdrew the petition. The Revenue challenged the said action by approaching this Court. The Court held that the assessee had abused the process of law and he could n....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief. What precisely has been done by the learned Single Judge, is clear from the above emphasised words which be re-read with advantage. The question of claim to damages and their ascertainment would only arise in the event of the Life Insurance Corporation, respondent, succeeding to prove that the appellant Company was an unlawful sub-tenant and therefore in unauthorised occupation of public premises. If the finding were to go in favour of the appellant Company and it is proved to be a lawful sub-tenant and hence not an unauthorised occupant, the direction to adjudge the claim for damages would be rendered sterile and otiose. It is only in the event of the appellant Company being held to be an unlawful sub-tenant and hence an unauthorised occupant that the claim for damages would be determinable. We see therefore no fault in the High Court adopting such course in order to balance the equities between the contestants especi....