TMI Blog2014 (2) TMI 1385X X X X Extracts X X X X X X X X Extracts X X X X ..... entire issue hinges on the categorisation of the deceased employee - whether he was an employee in terms of section 2(8). Even otherwise, there are disputed questions of fact to be adjudicated as has already been indicated. It is a truism to state that a decision is an authority to what it actually decides, more particularly, in the factual setting of the said case. The constitutional courts have always leaned towards the common man when he has come to the court with a grievance that he has been a victim of executive excesses or administrative vagaries. Under those circumstances the benefit of public law remedy cannot be thwarted on technicalities. Under a writ of certiorari the jurisdiction of the High Court is extremely restricted, for it looks at the decision making process rather than the decision itself - Going by the settled principles of law as to the writ of certiorari, it is difficult to see any error in the decision making process. It is only in the interest of Justice that this court desires to provide ample scope for the respective parties to agitate their issues, compendiously and comprehensively involving disputed questions of fact as well as the status of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the employee was not satisfactory, the company issued on 13.03.2001 another charge sheet-cum-suspension order detailing all the charges. Though the employee rendered an unconditional apology on 14.03.2001, as a matter of abundant caution, the company initiated disciplinary action, which resulted in the dismissal of the employee through an order, dated 23.10.2001, passed by the disciplinary authority of the company. 3. Aggrieved by the order of dismissal, dated 23.10.2001, the employee approached the appropriate authority under section 48(1) of the Act, i.e., the Assistant Commissioner of Labour Court-III, Hyderabad, the first respondent in the writ petition by filing S.E. No. 45 of 2001. The said first appellate authority allowed the application of the employee through an order, dated 31.04.2004, and directed the company to reinstate the employee. The company, in turn, aggrieved by the order of the primary authority, approached the second appellate authority under the Act, i.e., the Deputy Commissioner of Labour, Hyderabad (T.Cs.) by filing S.A. No. 16 of 2004. When the matter was pending before the second appellate authority, the employee filed an application in I.A. No. 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner company. The employee, in fact, is a manager but not an employee in terms of Section 2(8) of the Act. It is further contended that the first appellate authority, being a quasi judicial authority, ought to have functioned strictly within the precinct of the statute and ought not to have arrogated to himself the power and jurisdiction which he has not been vested with. It is a case of inherent lack of jurisdiction and, as such this court is the appropriate forum for adjudicating the issue of lack of jurisdiction. It is further contended that, despite the observations of the second appellate authority, while remanding the matter, as to the nature of functions discharged by the employee, the first appellate authority has once again mechanically reiterated its earlier findings. 9. The learned counsel has strenuously contended that when the entire scope of remand was to determine the jurisdiction of the first appellate authority in entertaining the application of the employee, once again the impugned order, dated 18.01.2010, had no discussion on the issue of maintainability. 10. The learned counsel has also contended that the order of the first appellate authority has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner company. Only on remand did the petitioner examine a witness, said to be one of its managers. 14. The learned counsel has submitted that when initially the first appellate authority allowed the application of the employee and directed the company to reinstate the employee, on its own accord the petitioner company went before the second appellate authority and laid challenge against the order of the first appellate authority. Even then, the company took the plea of lack of jurisdiction in the first appellate authority to entertain the application at the behest of the employee. When the matter was remanded, the company did participate in the proceedings and lead evidence as well. When once again an order was rendered by the first appellate authority adverse to the claim of the company, inexplicably it abandoned the route to the second appeal and approached this court. According to the learned counsel, the company is estopped from approaching this court in its second attempt, having already submitted itself to the jurisdiction of the authorities under the Act. 15. Laying emphasis on the order of appointment and also the letter of promotion, which were marked as Ex. W1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nspector may, by notification, appoint for any area as may be specified therein, any authority to hear and decide appeals arising out of the termination of service of employees under Sec. 47: Provided that the Chief Inspector may on administrative grounds transfer any appeal arising in the territorial jurisdiction of any authority to the file of another authority for disposal, and such authority to whom the appeal is transferred by the Chief Inspector shall dispose of the appeal so transferred. (b) Any employee whose services have been terminated may, appeal to the authority concerned within such time and in such manner as may be prescribed. (2) The appellate authority may, after inquiry in the prescribed manner, dismiss the appeal or direct the reinstatement of the employee with or without wages for period he was kept out of employment or direct payment of compensation without reinstatement or grant such other relief as it deems fit in the circumstances of the case: Provided that the authority concerned shall, without delay, hear such appeal and pass such orders within a period of three months from the date of receipt of such appeal: Provided further that where any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y such Magistrate. 20. Though the matter has been pending since 2010, a perusal of the record indicates that no rule nisi has been given. Thus, the matter is taken up for consideration before admission. Most of the pleadings and substantive part of the submissions made by the learned counsel for the petitioner concern themselves about the manner of adjudication undertaken by the first appellate authority and also about non-consideration of certain vital documents. There is an allegation even with regard to the alleged missing documents and also the bias of the adjudicating authority. 21. In fact, the petitioner has shown an accusing finger is shown towards the first appellate authority contending that he has deliberately disregarded the directions of the second appellate authority. The first appellate authority is said to have lost even the judicial discipline and restraint which ought to have been shown by him. 22. An appeal is the right of entering the superior court and invoking its aid and another interposition to redress the error of the Court below. In other words, a right of appeal, where it exists, is a matter of substance and not of procedure (see: Sita Ram and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isleading this authority and also casting aspersions against the authority since no such witness was examined by the respondent during the trial before this authority (on 06.06.2008 the respondent right to file counter was forfeited for his continuous absence). In fact, the instances of disputed facts are legion. 26. As this court has proposed to examine the rival contentions about the maintainability of the writ petition, or, in other words, about the availability of an efficacious alternative remedy, it does not propose to examine the statutory position in relation to AP Shops and Establishments Act, 1988, unless the court comes to a conclusion that it can as well entertain the matter on merits. 27. In Surya Dev Rai v. Ram Chander Rai (supra), a celebrated judgment rendered by the Supreme Court in the wake of amendments effected to the Section 115 thereof. In the said case what fell for consideration was the supervisory jurisdiction of the High Courts under Art. 227 of the Constitution. In that contexts the Supreme Court has held that so long as an error is capable of being corrected by a superior court in exercise of appellate or revisional jurisdiction, though available t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also pointed out that the proper way to correct them is to proceed under the provisions for appeal, etc. or by way of proceedings under Article 226 before the High Court. Before proceeding further, it is to be stated that observation of the Supreme Court in Coffee Board, Bangalore v. Joint Commercial Tax Officer, Madras (supra) cannot be taken as an absolute proposition that wherever a party cannot take recourse to Art. 32, to correct errors of law or fact committed in the exercise of jurisdiction founded on a valid law, invariably the said party can approach the High Court notwithstanding the alternative efficacious statutory remedies. The observation concerning Art. 226 is sub silentio and concerns itself with Art. 32 of the Constitution. 30. In Tata Engineering and Locomotive Company Ltd. v. Asst. Commissioner of Commercial Taxes (supra), the Supreme Court has held: 8. The power and jurisdiction of the High Court under Article 226 of the Constitution has been the subject of exposition from this Court. That it is extraordinary and to be used sparingly goes without saying. In spite of the very wide terms in which this jurisdiction is conferred, the High Courts have rightly r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any such imposition infringes that right of his. In that context, the Supreme Court has held that there is nothing wrong in the High Court exercising its powers under article 226 of the Constitution. 33. In Calcutta Discount Co. Ltd. v. I.T.O. (supra) a Constitutional Bench of the Hon'ble Supreme Court has held that the existence of an alternative remedy is not however always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction from continuing such action. It is further observed, in the facts of the case, that there is nothing in its conduct which would justify the refusal of proper relief under Article 226. When the Constitution confers on the High Courts the power to give relief it becomes the duty of the courts to give such relief in fit cases and the courts would be failing to perform their duty if relief is refused without adequate reasons. 34. In M.G. Abrol, Additional Collector of Customs, Bombay v. Shantilal Chhotelal Company (supra), the three-Judge Bench of the Supreme Court has held that remedy by way of an appeal against the order of confiscation and imposition of a huge penalty under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Article 226. A fortiori, if the issue is not that vires, either of the Tribunal or of the provision of law, proceedings under Art. 226 must fail. 37. It is a truism to state that a decision is an authority to what it actually decides, more particularly, in the factual setting of the said case. The constitutional courts have always leaned towards the common man when he has come to the court with a grievance that he has been a victim of executive excesses or administrative vagaries. Under those circumstances the benefit of public law remedy cannot be thwarted on technicalities. Under a writ of certiorari the jurisdiction of the High Court is extremely restricted, for it looks at the decision making process rather than the decision itself. It is averse to converting itself into an appellate court, especially a court of fact. In the present instance, the petitioner company wants this Court to don the role of a second appellate authority and adjudicate the disputed questions of fact, including that of the missing documents and the status of the deceased employee, which requires appreciation of evidence based on records, as well as oral testimony, it necessary. Of course, the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before a Tribunal under a provision of law, which is ultra vires it is open to a party aggrieved thereby to move the High Court under Article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course... In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice. (emphasis supplied) 40. On a close scrutiny of the case, I regret my inability to see either of those exceptions as set out above applying to the facts of the present case. In a recent judgment, Rajasthan State Industrial Development Investment Corpn. v. Diamond Gem Development Corpn. Ltd. (supra), the Supreme Court has held that writ does not lie merely because it is lawful to do so. A person may be asked to exhaust the statutory/alternative remedy available to him in law. 41. Taking into account the totality of circumstances, this Court is of the considered opinion that it is not a case of inherent lack of jurisdiction on the part of the first appellate authority, nor is it a case of laying challenge ag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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