The Director, Defence Research and Development Laboratories, Hyderabad vs C. Pandu, Instrument Mechanic, Defence Research Development Laboratories, Hyderabad

Sambasiva Rao, J.—This is an application for granting stay of the operation of the Judgment in The Director, Defence Research and Development Laboratories, Hyderabad Vs. C. Pandu, Instrument Mechanic, Defence Research Development Laboratories, Hyderabad, We have just now passed an order in S.C. L.P. 361 of 1976 dismissing the said petition and refusing to grant a certificate for leave to appeal to the Supreme Court.

Sri M.B. Rama Sarma, learned counsel for the respondent raises a preliminary and a somewhat novel objection to our jurisdiction and power to grant stay once we have dismissed the application for leave. According to him our power to grant or not to grant stay came to an end with the dismissal of the leave application. In other words, his contention amounts to saying that the court has become functus officio since the leave petition has been dismissed. We are not persuaded to accept this objection. We do not think that the court loses power and jurisdiction to grant interlocutory ad interim orders even though the leave application has been dismissed. Certainly it is open to the petitioner in the leave application to approach the Supreme Court for special leave. Until then or in the alternative until the time for seeking special leave from the Supreme Court expires, the matter in a sense is kept alive. Since the Supreme Court has not yet been approached, this Court, which has disposed of the matter and dismissed the leave petition, will have to safeguard the interests of the parties until such time the Supreme Court has seisin of the matter or the time for approaching the Supreme Court has expired, whichever is earlier. If this Court is satisfied that it is a matter where ad interim orders may be granted to safeguard the interests of the parties until such time that it would be possible for the losing party to go to the Supreme Court and apply for appropriate orders, in our opinion, it certainly has the power to do so. If it is an ordinary civil matter this court can act under Rule 13 of Order 45 and Section 151. CPC while granting ad interim orders. Though that provision does not in terms apply, the analogy of O. 41, Rule 5(2) may also be considered. Under this provision the Court which has passed the decree may, on sufficient cause being shown, order the execution to be stayed whenever an application is made for stay of execution of an appealable decree before the expiry of the time allowed for appeal therefrom. When such power is available to an ordinary Civil Court, it is futile to argue that it is not available to the High Court when it exercises extraordinary jurisdiction under Article 226 of the Constitution of India. We are, therefore, of the opinion that the High Court continues to have jurisdiction to pass ad interim orders even though if has dismissed the leave petition if it is satisfied that it would be in the interests of justice to pass such an order until the parties have sufficient time to go to the Supreme Court for securing appropriate orders.

Sri Rama Sarma strongly relies on the decision of the Supreme Court in The State of Orissa Vs. Madan Gopal Rungta, in support of his contention that this court loses jurisdiction once the leave petition has been dismissed. There the Orissa High Court held that Article 226 could not be used for deciding on the merits of the case. The High Court felt that a suit should be filed after giving notice u/s 80 of the Civil Procedure Code. Therefore, the court dismissed the writ petition but at the same time granted an interim order to enable the losing party to approach the Civil Court for appropriate orders. This was challenged before the Supreme Court, Kama, C.J., who spoke for the Court, send this to paragraph 6:

The question which we have to determine is whether directions in the nature of interim relief only could be granted under Article 226 when the Court expressly stated that it refrained from determining the rights of the parties on which a writ of mandamus or directions of a like nature could be issued. In our opinion Article 226 cannot be used for the purpose of giving interim relief as the only and final relief on the application as the High Court has purported to do. The directions have been given here only to circumvent the provisions of Section 80. CPC and in our opinion that is not within the scope of Article 226. An interim relief can be granted only in aid of and as an ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceeding. If the Court was of opinion that there was ho other convenient or adequate remedy open to the petitioners, it might have proceeded to investigate the case on its merits and come to a decision as to whether the petitioners succeeded in establishing that there was an infringement of any of their legal rights which entitled to them to a writ of mandamus or any other directions of a like nature; and pending such determination it might have made a suitable interim order for maintaining the status quo ante. But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a Civil Suit, it could not for the purpose of facilitating the institution of such suit, issue directions in the nature of temporary injunctions, under Article 226 of the Constitution. In our opinion, the language of Article 226 does not permit such an action.

The basis on which the Supreme Court set aside the judgment of the Orissa High Court is for the reason that the Court had declined to exercise its powers under Article 226 in the main matter and then give interim relief only in exercise of its power under Article 226. The reasoning of the Supreme Court is that when the High Court felt that it was not inclined to exercise its jurisdiction under Art. 226 to dispose of the main case, a fortiori it cannot exercise power under Art, 226 to issue interim relief. It is in this connection the very material observations were made by the Supreme Court that an interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceeding. If it has declined to decide on the rights of the parties, it could not, for the purpose of facilitating the institution of a suit, issue directions in the nature of a temporary injunction under Article 226 of the Constitution.

But such is not the case here. This Court in exercise of its jurisdiction under Article 226 disposed of the main writ appeal 296/76 on its merits. Only it found that there was no ground for granting a certificate for appeal to the Supreme Court against its judgment. The Supreme Court has pointed out in the above case i.e The State of Orissa Vs. Madan Gopal Rungta, ) that an interim relief can be granted in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceedings. If the Government challenges this court''s decision in W.A. 296/76, any interim relief that may be granted now will only be in aid of and as an ancillary to the relief which the Government would be seeking from the Supreme Court in an appeal, if special leave is granted by that Court. Since this Court has decided the main writ appeal in exercise of its jurisdiction under Article 226 it can continue to exercise its power under Article 226 to grant interim relief as well. Madan Gopal''s case instead of supporting Sri Rama Sarma''s contention is really against him.

Likewise, the decision of one of us (Punnayya, J.) in W.P. No. 4734/75 dated 31-8-1976 (Andh Pra) is of no avail to Sri Sarma''s contention, Punnayya, J., refused to grant stay stating that merely because this Court finds that the impugned order is vitiated with illegality and consequently quashes the said order, it cannot be said that it can grant stay by converting itself into appellate Court and such a power is not conferred by Article 226 nor by the Supreme Court in Madan Gopal''s case. The learned Judge felt that the High Court was concerned with the legality or otherwise of the decision of the appellate authority and it is not its functions to go into its merits. In those circumstances Punnayya, J., said that Article 226 cannot be invoked to grant stay. Patently this decision is not of any assistance to the learned counsel''s contention.

On the other hand, Sri A. Sriramulu appearing for Sri Subrahmanya Reddi relies on Nanda Kishore Singh v. Ram Gopal Sahu, ILR ( 1913 ) 40 Cal 955 and Jewan Ram Gangaram and Co. Vs. Commissioners for Port of Calcutta, . These are not cases which arose under Article 226 but they were under Order 41, Rule 5(2) and Section 151. Civil Procedure Code. The Calcutta High Court said that the Court had ample power to grant stay under these provisions even though the suit was dismissed. As we have said, Order 41, Rule 5(2) does not in terms apply to cases under Article 226. But by parity of reasoning the power is vested in the High Court to grant interim relief, even though it has dismissed the leave application. We are therefore, of the view that this court has power to grant or refuse to grant interim relief though the leave application has been rejected.

The next question is whether this is a fit and proper case where stay of the operation of the judgment under appeal can be granted. The services of the respondent have been terminated. This termination has been challenged on the ground that it is really in the nature of punishment and that is bad because no opportunity was afforded to him to meet the charges levelled against him. This found acceptance at our hand. The Government, however, wants to prefer an appeal to the Supreme Court; that is what the learned standing counsel for the Central Government states. We have not found sufficient grounds to grant leave to appeal to the Supreme Court. But at the same time, the learned counsel states that the Government will approach the Supreme Court for special leave. In the meanwhile the question would be whether the respondent should be reinstated in service. If suspension of the operation of our order is not granted for a reasonable time, then a difficult situation would arise not only for the Government but also for the respondent himself. It is manifest that there is any amount of bad blood between the superior officers and the respondent. If the respondent is reinstated in the interregnum it will be an embarrassing and difficult situation for the superior officers as well as for the respondent. In these circumstances, we feel it desirable in the interests of both the parties to suspend the operation of the order of reinstatement for one month from today. One month is fixed as a reasonable time to enable the Government to approach the Supreme Court for special leave and for appropriate orders. However, we cannot grant unconditional interim suspension of reinstatement. The respondent''s interests must be safeguarded as well. We, therefore, make it conditional on the petitioner paying to the respondent his usual emoluments for this month.

So, there will be a conditional suspension for one month from today as stated above. The emoluments of the respondent for this period shall be paid within the same time and in the same manner as regular employees are paid.