Employer
in relation to Management of Central Mine Planning Vs. V [2001] Insc 41 (25 January 2001)
S.N.
Phukan, S.S.M.Quadri Syed Shah Mohammed Quadri, J.
Special Leave Petition (civil) 14516 of 1999
L.J
Leave
is granted.
This
appeal is from the judgment and order of a Division Bench of the High Court of
Judicature at Patna, Ranchi Bench, in L.P.A.No.177 of
1999(R) dated August 9,
1999. The appellant is
the employer and 28 of its workmen are represented by respondent No.2.
The
parties are, hereafter, referred to as the employer and the workmen
respectively. The facts giving rise to this appeal lie in a short compass. The
Government of India, Ministry of Labour, referred the following question under
Section 10(1)(d) of the Industrial Disputes Act, 1947 (for short, the I.D. Act)
to the Central Government Industrial Tribunal (No.2) at Dhanbad (for short, the
Tribunal), : Whether the action of the management of Central Mine Planning
& Design Institute Ltd., Ranchi in terminating the services of Shri Naresh Jha
and 27 others (as per annexure) w.e.f. 1.7.1992 is justified? If not, to what
relief the workmen are entitled? On May 1, 1997 the Tribunal passed the award
holding that the termination of 28 workmen was not justified and that they were
entitled to reinstatement and regularisation with 40% back wages and other
benefits. The validity of that award was assailed by the appellant before the
High Court at Patna (Ranchi Bench) in CWJC No.2406 of
1979(R). The workmen claimed relief under Section 17B of the I.D. Act in that
CWJC. On April 26, 1999, a learned Single Judge of the High
Court allowed the application and directed the appellant to pay to the workmen
full wages last drawn by them on the date of the termination of their services.
The appellant challenged the correctness of that order in L.P.A. No.177 of
1999(R) before the Division Bench of the High Court which held that against the
order passed by the learned Single Judge in terms of Section 17B of the I.D.
Act, the Letters Patent Appeal was not maintainable because that order was not
judgment within the meaning of Clause 10 of the Letters Patent. It is that
judgment and order of the Division Bench, which is under challenge in this
appeal. Mr.Ajit Kumar, the learned counsel appearing for the appellant,
contended that the order of the learned Single Judge passed under Section 17B
of the I.D. Act is a judgment within the meaning of Clause 10 of the Letters
Patent so the High Court ought not to have dismissed the LPA as not
maintainable.
Mr.P.S.
Mishra, the learned senior counsel appearing for respondent No.2, has contended
that the order passed by the learned Single Judge is interlocutory order and is
not a judgment within the meaning of Clause 10 as explained by the Kania and Anr.
[1981 (4) SCC 8] The short question that arises in this appeal is: whether LPA
177 of 1999(R), against the order of the learned Single Judge passed on an
application under Section 17B of the I.D. Act, under Clause 10 of the Letters
Patent of Patna, before the Division Bench of the High Court, is maintainable?
We may mention here that Clause 15 of the Letters Patent of Calcutta, Bomaby
and Madras is in iisdem terminis Clause 10 of
the Letters Patent of Allahabad, Patna, Punjab & Haryana and Madhya Pradesh.
It
will be useful to read it here : 15. Appeal from the Courts of original jurisdidction
to the High Court in its appellate jurisdiction.- And we do further ordain that
an appeal shall lie to the said High Court of Judicature at Madras, Bombay,
Fort William in Bengal from the judgment (not being a judgment passed in the
exercise of appellate jurisdiction in respect of a decree or order made in the
exercise of appellate jurisdiction by a Court subject to the superintendence of
the said High Court and not being an order made in the exercise of a revisional
jurisdiction, and not being a sentence or order passed or made in exercise of
the power of superintendence under the provisions of section 107 of the
Government of India Act, or in the exercise of criminal jurisdiction) of one
Judge of the said High Court or one Judge of any Division Court, pursuant to
section 108 of the Government of India Act, and that notwithstanding anything
hereinbefore provided, an appeal shall lie to the said High Court from a
judgment of one Judge of the said High Court or one Judge of any Division
Court, pursuant to section 108 of the Government of India Act, on or after the
first day of February 1929 in the exercise of appellate jurisdiction in respect
of a decree or order made in the exercise of appellate jurisdiction by a Court
subject to the superintendence of the said High Court where the Judge who
passed the judgment declares that the case is a fit one for appeal; but that
the right of appeal from other judgments of Judges of the said High Court or of
such Division Court shall be to Us, Our heirs or successors in Our or Their
Privy Council, as hereinafter provided.
A
close reading of the provision, quoted above, shows that it has three limbs:
the first limb specifies the type of judgments of one judge of the High Court
which is appealable in that High Court and the categories of judgments/orders
which are excluded from its ambit; the second limb provides that
notwithstanding anything provided in the first limb, an appeal shall lie to
that High Court from judgement of one judge of the High Court or one judge of
any Division Court, pursuant to Section 108 of the Government of India Act (now
Article 225 of the Constitution of India), on or after February 1, 1929, passed
in exercise of appellate jurisdiction in respect of a decree or order made in
exercise of appellate jurisdiction by a court subject to the superintendence of
the said High Court where the judge who passed the judgment declares that the
case is a fit one for appeal; and the third limb says that the right of appeal
from other judgments of judges of the said High Court or such Division Court
shall be to us, our heirs or successors in our or their Privy Council, as
hereinafter provided. Here, we are concerned with the type of judgments
mentioned in the first limb. The above analysis of Clause 15 of the Letters
Patent will equally apply to Clause 10 of the Letters Patent of Patna. It
follows that an appeal shall lie to a larger Bench of the High Court of
Judicature at Patna from a judgment of one judge of the
said High Court or one judge of any Division Court pursuant to Article 225 of the Constitution of India.
The
following categories of judgment are excluded from the appealable judgments
under the first limb of Clause 10 of the Letters Patent :
(i) a
judgment passed in exercise of appellate jurisdiction in respect of a decree or
order made in exercise of appellate jurisdiction by a court subject to
superintendence of the said High Court; in other words no letters patent appeal
lies to the High Court from a judgment of one judge of the High Court passed in
second appeal;
(ii) an
order made by one judge of the High Court in exercise of revisional
jurisdiction; and
(iii)
a sentence or order passed or made in exercise of power under the provisions of
Section 107 of Government of India Act, 1915 (now Article 227 of the
Constitution of India) or in exercise of criminal jurisdiction.
From
the above discussion, it is clear that from all judgments except those falling
under the excluded categories, an appeal lies to the same High Court. The next
question which needs to be considered is, what does the expression judgment
mean? That expression is not defined in Letters Patent. It is now well-settled
that definition of judgment in Section 2(9) of Code of Civil Procedure, has no
application to Letters Patent. That expression was interpreted by different
High Courts of India for purposes Raikot & Ors. [1953 SCR 1159], a four-
Judge Bench of this Court considered the pronouncements of the High Court of
Gas Co. [8 Beng. L.R. 433], the High Court of Rangoon in Ahmedbhai [9 Bombay
H.C.R. 398] as also the High Court at Nagpur, the High Court at Allahabad and
Lahore High Court and observed as follows: In view of this wide divergence of
judicial opinion, it may be necessary for this Court at some time or other to
examine carefully the principles upon which the different views mentioned above
purport to be based and attempt to determine with as much definiteness as
possible the true meaning and scope of the word judgment as it occurs in clause
15 of the Letters Patent of the Calcutta High Court and in the corresponding
clauses of the Letters Patent of the other High Courts.
Such
an exercise was undertaken by a three-Judge Bench and Anr. [1981 (4) SCC 8] Fazal
Ali, J. speaking for himself and Varadarajan, J. after analysing the views of
different High Courts, referred to above, observed as follows : The intention,
therefore, of the givers of the Letters Patent was that the word judgment
should receive a much wider and more liberal interpretation than the word
judgment used in the Code of Civil Procedure. At the same time, it cannot be
said that any order passed by a Trial Judge would amount to a judgment;
otherwise there will be no end to the number of orders which would be appealable
under the Letters Patent. It seems to us that the word judgment has undoubtedly
a concept of finality in a broader and not a narrower sense.
It was
pointed out that judgment could be of three kinds :
(1) A
final judgment. - in this category falls a judgment by which suit or action
brought by the plaintiff is dismissed or decreed in part or full;
(2) A
preliminary judgment.- this category is sub- divided into two classes :
(a) where
the Trial Judge by an order dismisses the suit, without going into the merits
of the suit, only on a preliminary objection raised by the defendant/respondent
on the ground of maintainability;
(b)
where maintainability of the suit is objected on the ground of bar of
jurisdiction, e.g., res judicata, a manifest defect in the suit, absence of
notice under Section 80 and the like; and
(3)
Intermediary or interlocutory judgment.- in this category fall orders referred
to in clauses (a) to (w) of Order 43 Rule 1 and also such other orders which
possess the characteristic and trappings of finality and may adversely affect a
valuable right of the party or decide an important aspect of the trial in an
ancillary proceeding.
Elucidating
the third category, it is observed :
Every
interlocutory order cannot be regarded as a judgment but only those orders
would be judgments which decide matters of moment or affect vital and valuable
rights of the parties and which work serious injustice to the party concerned.
In the
instant case, we are concerned with the last mentioned category. From the above
discussion, it follows that to determine the question whether an interlocutory
order passed by one judge of a High Court falls within the meaning of judgment
for purposes of Letters Patent the test is : whether the order is a final
determination affecting vital and valuable rights and obligations of the
parties concerned. This has to be ascertained on the facts of each case.
Adverting to the facts of this case, Section 17B of the I.D. Act confers valuable
rights on the workmen and correspondingly imposes an onerous obligations on the
employer. The order in question passed by the learned Single Judge determines
the entitlement of the workmen to receive benefits and imposes an obligation on
the appellant to pay such benefits provided in the said section. That order
cannot but be judgment within the meaning of Clause 10 of Letters Patent, Patna. The High Court is obviously in
error in holding that the said order is not judgment within the meaning of
Clause 10 of the Letters Patent of Patna.
For
the above reasons, we hold that the order of the learned Single Judge passed on
application under Section 17B of the I.D. Act on April 26, 1999 is judgment within the meaning of Clause 10 of the Letters
Patent of Patna and is, therefore, appealable. The order of the High Court is
accordingly set aside, the Letters Patent appeal is restored to the file of the
High Court and the case is remanded to the High Court for deciding the LPA on
merits in accordance with law. The appeal is accordingly allowed. In the
circumstances of the case, the parties are directed to bear their own costs.
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