The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No.177 of 2024 Registrar, Biju Patanaik University of Technology, Rourkela …. Appellant Mr. Subir Palit, Senior Advocate assisted by Miss A. Pradhan, Advocate -versus- Dr. Prasana Kumar Mishra & others …. Respondents Mr. Budhadev Routray, Senior Advocate assisted by Mr. J. Biswal, Advocate CORAM: THE CHIEF JUSTICE MR. JUSTICE MURAHARI SRI RAMAN Order No.
Decision
ORDER 05.03.2024 02. This matter is taken up through Hybrid mode. 2. The appellant, Biju Patnaik University of Technology, Rourkela, in the present intra-court appeal has put to challenge an order dated 07.02.2024 passed by a learned Single Judge of this Court in CONTC No.1383 of 2017 arising out of CONTC No.1368 of 2016 disposed on 09.12.2016 and W.P.(C) No.11148 of 2005 disposed on 01.12.2015. 3. It transpires from the averments made in the present intra-court appeal and other materials on record that respondent No.1 had filed the writ petition i.e. W.P.(C) No. 11148 of 2005 seeking his regularization in service, which came to be disposed of on 01.12.2015 with the following observations and directions: Page 1 of 8 “22. In that view of the matter, this Court is of the considered view that the opposite parties should absorb the petitioner on regular basis against sanctioned vacant post taking into account the length of service rendered by him as a Lecturer in Mathematics in which he is continuing without insisting him to undergo the rigors of the selection procedure laid down under the BPUT Act and Rules framed thereunder reason being in the meantime the petitioner has become over aged and he has also been exploited for 20 years for no the reasons interviews conducted by the authority for his engagement on contractual basis. The petitioner being not a backdoor entrant to the service, the opposite party-University should extend all consequential benefits as due and admissible in accordance with law as expeditiously as possible preferably within a period of four months. though he has qualified in all The writ petition is allowed. No order to cost.” 4. It further transpires that the matter has gone up to the Supreme Court. The Single Bench decision of this Court dated 01.12.2015 has, however, not been interfered with. Later, a contempt application was filed by the respondent No.1 which came to be disposed of by an order dated 09.12.2016 passed in CONTC No. 1368 of 2016. Respondent No.1 filed another contempt case i.e. CONTC No.1383 of 2017 wherein the order under challenge dated 07.02.2024 has been passed by the learned Single Judge, relevant portion of which reads as under: “3. Hence, this Court as well as the Apex Court have held in catena of decisions that regularization of services should be done from the date of joining not from the date of judgment. Page 2 of 8 4. The Opposite Parties/contemnors are directed to file and affidavit in the light of the above observation on/or before 20th February, 2024.” 5. The aforesaid observations came to be made by the learned Single Judge in the contempt proceeding in view of the stand of the appellant that his regularization of service ought to have been done w.e.f. the date of his initial joining against the post since he was appointed against a sanctioned post by the way of valid selection process. 6. The contempt proceeding is still pending. The University has, however, chosen to prefer the present intra-court appeal on the ground that the said interim order is in the nature of granting such relief to respondent No.1 which was not granted to him by this writ petition. 7. Mr. Subir Palit, learned Senior Counsel appearing on behalf of the appellant has placed heavy reliance on the Supreme Court‟s decision in the case of Midnapore Peoples’ Co-operative Bank Ltd. and others Vs. Chunilal Nanda and others, reported in (2006) 5 SCC 399 and contended that this intra-court appeal against an interim order passed in a contempt proceeding is maintainable. To bolster his contention, he has drawn our attention to paragraph 11 of the said decision, which reads as under: “11. The position emerging from these decisions, in regard in contempt to appeals against orders proceedings may be summarized thus: Page 3 of 8 I. An appeal under Section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt. II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution. III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties. IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of “jurisdiction to punish for contempt” and, therefore, not appealable under Section 19 of the CC Act. The only exception is where such direction or decision to or inextricably connected with the order punishing for contempt, in which event the appeal under Section 19 of the Act, can also encompass the incidental or inextricably connected directions. incidental is V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra- court appeal), or by seeking special leave to appeal Page 4 of 8 under Article 136 of the Constitution of India (in other cases). The first point is answered accordingly.” 8. Our attention has also been drawn to the observations made by the Supreme Court in Paragraphs 12 and 13, which read as under: the “12. We will next consider as to whether an intra-court appeal under clause 15 of the Letters Patent was available against interlocutory order dated 20.11.1998 containing the directions on merits of the dispute. Clause 15 of the Letters Patent provides for an appeal from a 'judgment' of a single Judge in exercise of original jurisdiction, to a Division Bench. In Shah Babulal Khimji v. Jayaben D. Kana the scope of clause 15 of the Letters Patent was considered. This Court held: "The concept of a judgment as defined by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by sub-section (2) of section 2 cannot be physically imported into the definition of the word 'judgment' as used in Cl. 15 of the Letters Patent because the Letters Patent has advisedly not used the terms 'order' or 'decree' anywhere. 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. In other words, a judgment can be of three kinds: (1) A final Judgment.— Page 5 of 8 (2) A preliminary Judgment.— (3) Intermediary or interlocutory judgment.— Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order 43, Rule 1 and have already been held by us to be judgments within the meaning of the Letters Patent and, therefore, appealable. There may also be interlocutory orders which are not covered by Order 43, Rule 1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceedings. Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote. * * * * * ….in other words 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. * * * * * ….any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice to one party or the other cannot be treated as a judgment, otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of orders passed by the trial Judge…. … the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions Page 6 of 8 in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings." 13. Clause 10 of the Letters Patent of Patna High Court (corresponding to clause 15 of the Letters Patent of Calcutta High Court) was considered by this Court in Central Mine Planning and Design Institute Ltd. v. Union of India. In that case, the Industrial Tribunal directing award of an reinstatement and payment of partial backwages was challenged in a writ petition before the High Court of Patna. The workman claimed interim relief under section 17- B of the Industrial Disputes Act, 1947. The learned Single Judge directed the employer to pay full wages to the workman during the pendency of the writ petition. That was challenged in a Letters Patent Appeal. The Division Bench held that the Letters Patent Appeal was not maintainable as the order directing payment under section 17-B of the I.D. Act was not a 'judgment'. Reversing the said decision, this Court held that an interlocutory order passed in a writ proceeding directing payment under section 17-B of Industrial Disputes Act, 1947 was a final determination rights and affecting obligations of parties and, therefore, would fall under the category of 'intermediary or interlocutory judgment' against which a Letters Patent Appeal would lie. The following observations are relevant : the vital and valuable "It is now well settled that the definition of „judgment‟ in section 2(9) of the Code of Civil Procedure has no application to Letters Patent… …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 Page 7 of 8 concerned. This has to be ascertained on the facts of each case." 9. Learned Single Judge in a contempt proceeding could not have gone beyond the scope of the direction issued in the writ proceedings, Mr. Palit contends. 10. There is no quarrel over the principle that even an interim order passed in a contempt proceeding in appropriate cases can be subject matter of challenge in an intra-court appeal under Clause- 10 of the Letters Patent of Patna High Court. However, we are of the considered opinion that it will be open for the University to take such plea as may be available to it to satisfy the Court hearing the contempt proceeding that there has not been any disobedience of any term of the orders passed by the learned Single Judge. In the present facts and circumstances of the case, we are not inclined to interfere at this stage in the present intra-court appeal. 11. This appeal is accordingly dismissed with the aforesaid observations. Chief Justice (Chakradhari Sharan Singh) Judge SK Jena/Secy. (M.S. Raman) Signature Not Verified Digitally Signed Signed by: SANJAY KUMAR JENA Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 06-Mar-2024 18:33:59 Page 8 of 8