Krishi Upaj Mandi Samiti, Chhatarpur vs Yashwant Singh Bundela and Another

Dipak Misra, J.

In this appeal preferred u/s 2(1) of the MP, Uchch Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 challenge is to the order dated 28.03.2007 passed by the learned single Judge in Writ petition No. 2600/2007.

The facts which are necessitous to be exposited are that the Respondent No. 1 working under Krishi Upaj Mandi Samiti Bada Malahara, Chhatarpur faced discontinuance of service. An industrial dispute was raised under the Industrial Disputes Act, 1947 (in short ''the 1947 Act'') and eventually the Presiding Officer by award dated 20.06.2006 directed reinstatement of service without backwages. Being aggrieved by the aforesaid order, the Appellant challenged the same in the writ petition on many a ground. Learned single Judge while admitting the writ petition passes the following order:

Admit.

Issue notice to the Respondents." PF within three days.

Meanwhile, the Petitioner shall comply with Section 17B of the Industrial Disputes Act, 1947 by paying last wages drawn to the Respondent employee within a period of thirty days failing which the petition shall stand dismissed automatically without reference to the Court.

Questioning the correctness of the aforesaid order it is submitted by Mr. D.N. Shukla, learned Counsel for the Appellant that the Appellant is grieved with the order as it is contrary to the provisions of the 1947 Act and also the learned single Judge could not have passed the peremptory order directing payment of last wages drawn by the Respondent employee within a period of thirty days failing which the petition would stand dismissed without further reference to the Bench.

It is apposite to mention here that Registry has pointed out a default with regard to maintainability of the appeal on the ground that it is an interim order. Submission of Mr. Shukla is that the interim order has the vital impact on the litigation and it finally decides obligation of the Appellant with regard to payment of last wages drawn which is contrary to the statutory provision and hence, the appeal is maintainable.

In this context we may refer with profit to the decision rendered in the case of Employer in Relation to Managment of Central Mine Planning and Design Institute Ltd. Vs. Union of India and Another, wherein it has been held as under:

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 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 the 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.

In Midnapore Peoples'' Co-op. Bank Ltd. and Others Vs. Chunilal Nanda and Others, their Lordships in paragraph 15 have given various types of interim orders/interlocutory orders passed during pendency of a case. It is worth-reproducing paragraphs 15 and 16 of the said decision:

Interim Orders/interlocutory orders passed during the pendency of a case, fall under one or the other of the following categories:

(i) Orders which finally decides a question or issue in controversy in the main case.

(ii) Orders which finally decide an issue which materially and directly affects the final decision in the main case.

(iii) Orders which finally decide a collateral issue or question which is not the subject-matter of the main case.

(iv) Routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment.

(v) Orders which may cause some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the parties.

The term "judgment" occurring in Clause 15 of the Letters Patent will take into its fold not only the judgments as defined in Section 2(9) Code of CPC and orders enumerated in Order 43 Rule 1 CPC, but also other orders which though may not finally and conclusively determine the rights of parties with regard to all or any matters in controversy, may have finality in regard to some collateral matter, which will affect the vital and valuable rights and obligation of the parties. Interlocutory orders which fall under categories (i) to (iii) above, are, therefore, "judgments" for the purpose of filing appeals under the Letters Patent. On the other hand, orders falling under categories (iv) and (v) are not "judgment" for the purpose of filing appeals provided under the Letters Patent.

In view of the aforesaid pronouncement of law we have no hesitation in mind that the order passed by the learned single Judge is assailable in intra-court appeal.

The next question that emerges for consideration is whether the learned single Judge could have passed the order ex parte which peremptory in nature. In this regard it is condign to reproduce Section 17B of the 1947 Act:

17B. Payment of full wages to workman pending proceedings in higher courts - Wherein in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court: Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this Section for such period or part, as the case may be.

There can be no shadow of doubt that an affidavit is required to be filed by the workman stating that he had not been employed in any establishment during period of pendency of such proceeding in the High Court. Irrefragably in the case at hand occasion had not arisen for filing of affidavit because notices have been issued. In this context we may refer with profit to the decision rendered in the case of Hindustan Zinc Ltd. Vs. Industrial Tribunal and Another, wherein the Apex Court while dealing with the matter where the High Court (sic) had dismissed the writ petition preferred for non-compliance of Section 17B of the 1947 Act expressed the opinion as under:

... The High Court noticed that the order made u/s 17B of the Industrial Disputes Act, 1947, had not been complied with and therefore was no necessity to go into the merits of the case. This conclusion is rather surprising. The High Court ought to have dealt with the merits of the case and decided the case but it went at a tangent and proceeded to dispose of the matter for noncompliance with the interim order made by the High Court....

In view of the aforesaid premises, the direction, namely, the Appellant Petitioner shall comply with Section 17B of the 1947 Act by paying last wages within a period of thirty days failing which the petition shall stand dismissed automatically without reference to the Court has to be set aside and we so direct. Needless to emphasise, the workman can file an application u/s 17B fulfilling the conditions precedent as inhered in the said provision and make a prayer.

The writ appeal is allowed to the extent indicated above.