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CASE NO.: Writ Petition (civil) 13754  of  2000

PETITIONER: AJIT KUMAR BARAT

       Vs.

RESPONDENT: SECRETARY, INDIAN TEA ASSOCIATION AND ORS.

DATE OF JUDGMENT:       02/05/2001

BENCH: D.P. Mohapatra & Shivaraj V. Patil

JUDGMENT:

Shivaraj V. Patil, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   In  this  writ  petition filed under Article 32  of  the Constitution of India, the Petitioner has sought for setting aside  the judgment and order dated 14.2.2000 passed by this Court  in  C.A.   No.  1041 of 2000 (Secretary,  Indian  Tea Association vs.  Ajit Kumar Barat & Ors.)

   The  facts  to  the extent relevant to dispose  of  this petition briefly stated are the following:-

   The  petitioner was appointed as Assistant Secretary  by the  respondent  No.  1 on 16.9.1986;  was promoted  to  the post  of  Joint Secretary on 1.4.1991;  was  transferred  on 22.5.1995 to Dibrugarh, which order of transfer was also the subject-matter  of another litigation with which we are  not concerned  in  this petition.  His services were  terminated with  effect  from  27.11.1995.  An industrial  dispute  was raised by the petitioner.  Labour Commissioner submitted the failure  report  in  conciliation  proceedings  on  2.7.1997 recommending  a reference, as according to him the  question whether  the petitioner was a workman required adjudication. Since  the Government did not act, the petitioner filed writ petition  in  the  High Court of Calcutta.  The  High  Court directed the State Government to take decision under Section 12(5)  of the Industrial Disputes Act, 1947 within the  time fixed.   The Government communicated its decision regretting its inability to make a reference saying that the petitioner was  not  a workman.  Again, the petitioner moved  the  High Court  against  the  said  order of  the  State  Government. Learned  single  Judge  of  the High  Court  made  an  order directing  the  State Government to make a reference  as  to whether  the petitioner was a workman.  The appeal filed  by the  respondents herein was dismissed by the Division  Bench of the High Court.  The respondent No.  1 herein brought the matter  to  this Court.  This Court, by an  elaborate  order dated  14.2.2000,  noticing  the facts, contentions  of  the parties and the decisions allowed the Civil Appeal No.  1041 of  2000  and  set  aside the judgment  of  the  High  Court directing  the  State  Government  to  make  an  appropriate

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reference.

   The petitioner filed Review Petition No.  550 of 2000 in the said civil appeal No.  1041 of 2000, which was dismissed by  this  Court on 26.7.2000.  Now the petitioner has  filed the  present  writ  petition seeking the  relief  as  stated above.

   We heard the petitioner (party in person) at length.  In response  to  our  query  as to how  the  writ  petition  is maintainable  so as to question the validity and correctness of  the  order of this Court passed on 14.2.2000 and to  set aside  the same in a petition filed under Article 32 of  the Constitution, he submitted that his Fundamental Rights under Article  21 of the Constitution are affected because of  the decision  of  this  Court passed in  the  aforesaid  appeal, ignoring  the  binding precedents of larger benches of  this Court;   this  Court has not considered the submissions  and decisions  cited by him before passing the order in the said appeal.   He  invited our attention to the judgment of  this Court  in  A.R.  Antulay vs.  R.S.  Nayak and  another  [AIR 1988  SC  1531].  He read to us paras 38, 61 and 62  of  the said  judgment.  Para 38 deals with a decree passed  without jurisdiction and states that such a decree is a nullity, the validity  of which 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.   What  is stated in para 38 has no relevance on the question as to the maintainability  of  writ petition under Article 32  of  the Constitution  so  as to challenge the order passed  by  this Court  on merits.  In para 61 it is noticed that  directions were  given  without  hearing  the   appellant  and  in  the circumstances  that  order  was  bad.  Further  in  para  62 reference  is  made to Nawabkhans case [(1974) 3  SCR  427] wherein  it was held that an order passed without hearing  a party,  which affects its Fundamental Rights, is void.   The petitioners  case  is  not such where an order  was  passed without  hearing  him.  The other side requested us to  read paras  102  and 109 of the same judgment.  Para 102, to  the extent relevant, reads:  -

   What  remains  to be decided is the procedure by  which the  direction  of  the  16th of February,  1984,  could  be recalled  or altered.  There can be no doubt that certiorari shall not lie to quash a judicial order of this Court.  That is  so on account of the fact that the Benches of this Court are not subordinate to larger Benches thereof and certiorari is,  therefore,  not admissible for quashing of  the  orders made on the judicial side of the Court.

       Xxx     xxx     xxx@@                         III

   Shah,  J.   who  wrote a separate judgment  upheld  the@@     JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ vires  of  the rule and directed dismissal of the  petition. The  fact  that a judicial order was being made the  subject matter  of  a petition under Article 32 of the  Constitution was  not  noticed and whether such a proceeding was  tenable was  not  considered.  A nine-Judge bench of this  Court  in Naresh  shridhar Mirajkar v.  State of Maharashtra, (1966) 3 SCR  744 :  (AIR 1967 SC 1) referred to the judgment in Prem Chand  Gargs  case (AIR 1963 SC 996) Gajendragadkar,  C.J., who  delivered  the leading and majority judgment stated  at page  765 (of 1966) 3 SCR) :  (at pp.  14-15 of AIR 1967 SC)

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of the Reports:-

        xxx            xxx             xxx@@                                         III

   It is difficult to see how this decision can be pressed@@     JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ into  service  by Mr.  Setalvad in support of  the  argument that  a  judicial order passed by this Court was held to  be subject to the writ jurisdiction of this Court itself...  In view  of this decision in Mirajkars case (AIR 1967 SC 1) it must be taken as concluded that judicial proceedings in this Court are not subject to the writ jurisdiction thereof.

               (Emphasis supplied)

   From  this judgment it is clear that the validity of  an order  passed by this Court itself cannot be subject to writ jurisdiction of this Court.  Reading of para 109 of the same judgment  shows  that the directions given in the said  case were on peculiar facts and circumstances.  In the said para, it is stated thus:  -

   There  is  still another aspect which should  be  taken note  of.   Finality  of  the orders is the  rule.   By  our directing  recall of an order the well-settled  propositions of law would not be set at naught.  Such a situation may not be  recur in the ordinary course of judicial functioning and if  there be one, certainly the bench before which it  comes would  appropriately deal with it.  No strait jacket formula can  be laid down for judicial functioning particularly  for the  apex Court.  The apprehension that the present decision may  be used as a precedent to challenge judicial orders  of this  Court  is  perhaps  misplaced because  those  who  are familiar  with  the  judicial functioning are aware  of  the limits  and they would not seek support from this case as  a precedent.  We are sure that if precedent value is sought to be derived out of this decision, the Court which is asked to use  this  as an instrument would be alive to  the  peculiar facts  and circumstances of the case in which this order  is being made.

                               (Emphasis supplied)

   That was a case where an order had been made against the appellant  in his absence transferring the criminal case  to the  High Court when there was specific provision for  trial of  the case by a special court.  In view of what is  stated in  the above para itself, the said decision cannot be  used as a precedent to challenge the judicial order of this Court which is otherwise binding on the parties.

   The  petitioner cited another decision of this Court  in Kavalappara  Kottarathil  Kochunni  alias Moopil  Nayar  vs. State  of Madras and others [AIR 1959 SC 725].  That was not a  case where a writ petition was filed under Article 32  of the  Constitution for quashing the very order passed by this Court.   That was a petition filed for enforcing Fundamental Rights of the petitioner making grievance against the action of the State.

   He  also cited decision of this Court in M/s.   Northern India Caterers (India) Ltd.  s.  Lt.  Governor of Delhi [AIR 1980  SC 674] made in Review Petition Nos.  111-112 of 1976, to contend that where there is an apparent error on the face

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of  the  record,  this Court can correct  the  error.   This judgment  also  does not help the petitioner as it is not  a case  for review.  We may notice here itself that the review application  No.   550  of  2000  filed  by  the  petitioner including a ground that larger bench decisions of this Court were  not considered, is already dismissed by this court  on 26.7.2000.   This being the position, it cannot be said that the said judgment passed by this court in C.A.  No.  1041 of 2000  on merits offended Fundamental Right of the petitioner under  Article 21 of the Constitution.  In our view,  having regard  to the facts and circumstances of the case, this  is not  a  fit case to be entertained to exercise  jurisdiction under  Article  32  of the  Constitution.   Accordingly,  we decline to do so.

   In  the light of what is stated above, the writ petition is dismissed.  No costs.