ADVANI OERLIKON LTD Vs. MACHINDRA GOVIND MAKASARE

JUDGEMENT

(1.) 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 conclusive judicial pronouncement. In a sense, this is reflective as much of the ingenuity of the Bar as it is of the expansive constitutional philosophy of vesting jurisdiction in the High Court to issue writs that remedy injustice. The ruling, which this Full Bench is called upon to render, is guided by pronouncements of the Supreme Court, of Special Benches as well as Full Benches of this Court. That the question of the maintainability of an appeal under Clause 15 of the Letters Patent in such cases continues to arise with such persistence provides a sobering reflection of the limits of the law in providing black letter solutions. We must recognise that the broad and wide categories that the founding fathers of the Constitution created while conferring jurisdiction on constitutional courts were crafted with a sense of vision and purpose. Conceptual openness is a powerful weapon against injustice. The width and amplitude of constitutional provisions ought not then to be constricted into narrow fragments. A provision which is intended to reach out to injustice must be construed in the same liberal spirit with which it was engrafted into the Constitution. We begin this judgment, on a reference to the Full Bench, with the prefatory note that as in other cases involving legal interpretation, straitjackets are unwise.

(2.) This Court in answering the questions on which the reference has been made would indicate the broad principles, leaving it as we Corporation (SM) Ltd. vs. Devraj Chandrabali Pai, 1 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 maintainability and held that the mere mention of Article 226 will not make an appeal maintainable under clause 15, if in pith and substance what was sought to be exercised as jurisdiction of this Court and what was exercised was the supervisory jurisdiction of this Court . Having said this, the Division Bench observed thus:

(3.) The power of the High Court to issue a writ of Certiorari, among other writs, is preserved and recognized by Article 226 of the Constitution. In Hari Vishnu Kamath vs. Ahmed Ishaque, 1955 AIR(SC) 233 a Bench of seven Learned Judges of the Supreme Court formulated the principles upon which the issuance of the writ of Certiorari is founded. Following this judgment and the judgment of the Constitution Bench in Custodian of Evacuee Property vs. Khan Saheb Abdul Shukoor, 1961 AIR(SC) 1087 it is well settled that (i) A writ of Certiorari will be issued for correcting errors of jurisdiction; (ii) A writ of Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, such as when it decides without giving an opportunity to the parties to be heard or in violation of the principles of natural justice; (iii) The Court which issues a writ of Certiorari acts in exercise of a supervisory, as distinct from an appellate jurisdiction. Hence, findings of fact of an inferior Court or Tribunal are not reviewed even if they be erroneous; and (iv) A writ of Certiorari can be issued to correct an error in the decision or determination if there is a manifest error apparent 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.