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CASE NO.:

Appeal (civil) 880 of 2001

Special Leave Petition (civil) 14516 of 1999

PETITIONER:

EMPLOYER IN RELATION TO MANAGEMENT OF CENTRAL MINE PLANNING AND DESIGN

Vs.

RESPONDENT:

V.

DATE OF JUDGMENT: 25/01/2001

BENCH:

S.N. Phukan, S.S.M.Quadri

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

J U D G M E N T

Syed Shah Mohammed Quadri, 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

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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

dicta of this Court in Shah Babulal Khimji Vs. Jayaben D.

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

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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

of Letters Patent. In Asrumati Debi Vs. Kumar Rupendra Deb

Raikot & Ors. [1953 SCR 1159], a four- Judge Bench of this

Court considered the pronouncements of the High Court of

Calcutta in Justices of the Peace for Calcutta Vs. Oriental

Gas Co. [8 Beng. L.R. 433], the High Court of Rangoon in

Dayabhai Vs. Murugappa Chettiar [I.L.R. 13 Rang. 457],

the High Court of Madras in Tuljaram Vs. Alagappa [I.L.R.

35 Mad. 1], the High Court at Bomaby in Sonebai Vs.

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

of this Court in Shah Babulal Khimji Vs. Jayaben D. Kania

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

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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

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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.