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Ajai Kumar Yadav v. State Of U.P. & Others - SPECIAL APPEAL No. 439 of 2006 [2006] RD-AH 9388 (11 May 2006)


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Court No. 32

Special Appeal No.439 of 2006

Ajai Kumar Yadav Vs. State of U.P. & others


Hon'ble S. Rafat Alam, J.

Hon'ble Sudhir Agarwal, J.

Heard Sri A.N. Srivastava, learned counsel for the appellant and the learned Standing counsel for the respondents.

This Special appeal has been preferred against the order of the Hon'ble Single Judge of this Court dated 25.4.2006 in writ petition no.22543 of 2006 whereby writ petition of the appellant is connected with writ petition no.16436 of 2006 to be decided by a Larger Bench.

It appears that in the writ petition the appellant challenged the order of the respondents inflicting punishment of censure entry on the ground inter alia that Rule 4(1)(b)(iv) of the U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules, 1991 is ultra vires to Section 7 of the Police Act, 1861, as has been held in the case of Daddan Chaubey vs. State of U.P. and others (Writ Petition No.105 (S/S) of 2005 decided on 2.1.2006. The Hon'ble Single Judge in writ petition no.16436 of 2006 referred the matter to a Larger Bench and, therefore, following the same by the order impugned in this appeal connected the appellant's writ petition with writ petition no.16436 of 2006 for being decided by a larger Bench.  We are of the view that against such order special appeal under Chapter VIII Rule 5 of the Rules of the Court does not lie as the order under appeal is not a judgment.

Sri Srivastava relying upon two decisions of the Apex Court in the case of Employer in Relation to Management of Central Mine Planning and Design Institute Ltd. Vs. Union of India & others-(2001) 1 UPLBEC 825 and in the case of Deoraj vs. State of Maharashtra & others- (2004) 4 SCC 697, vehemently contended that refusal to grant interim order amounts to judgment and, therefore, the Special Appeal is maintainable. We do no find any force in the contention. By the order under appeal the Hon'ble Single Judge did not decide any issue involved between the parties and therefore, it cannot be termed as "judgment". Both the cases cited above are not applicable in the facts of the present case. Reliance to the aforesaid judgments is wholly misplaced and lends no help to the appellant.

In the case of Employer in Relation to Management of Central Mine Planning and Design Institute Ltd (Supra), the award of the Industrial Tribunal holding termination of 28 workmen to be illegal and directing the employer to reinstate and regularize them, was challenged before the High Court in a writ petition under Article 226 of the Constitution of India. The workmen filed an application under Section 17-B of the Industrial Disputes Act 1947 in the pending writ petition filed by the employer and the Hon'ble Single Judge allowed the application directing the employer to pay full wages to the workmen on the basis of last pay drawn on the date of termination. Against the said order passed by the Hon'ble Single Judge, the employer filed a Letters Patent Appeal which was dismissed by a Division Bench of the High Court as not maintainable. The question came up for consideration before the Apex Court was as to whether the order passed by Hon'ble Single Judge satisfied the requirement of the term ''judgment' in order to maintain Letters Patent Appeal before the Division Bench. The Apex Court relying on its earlier three Judges' judgment in Shah Babulal Khimji vs. Jayaben D. Kaniya & another- 1981 (4) SCC 8, held that 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 cause serious injustice to the party concerned. Analyzing the question in the light of the aforesaid observations, it was held that the order passed by the Hon'ble Single Judge disposing of application under Section 17-B of the Industrial Disputes Act determining the entitlement of the workmen to receive benefits, imposes an obligation on the employer to pay such benefits, hence the order passed by the Hon'ble Single Judge was a "judgment" against which a Letters Patent Appeal was maintainable.

The case in hand is totally different inasmuch as admittedly the Hon'ble Single Judge has neither decided any issue in order to determine the rights and obligations of the parties on any issue nor has created any such rights and obligations. The Hon'ble Single Judge has only connected the writ petition with another pending writ petition in which a similar issue is involved. By no stretch of imagination the order impugned can be said to be a judgment under Chapter VIII Rule 5 of the Rules of the Court. The judgment of the Apex Court relied by the counsel for the appellant in the case of Employer in relation to Management of Central Mine Planning and Design Institute Ltd (supra) is thus clearly distinguishable and has no application to the facts involved in the appeal in hand.

Similarly, in the case of Deoraj (supra) the Apex Court considered the factors, which are required to be taken into account while granting interim order. This judgment has no application whatsoever to the issue involved in the present appeal.

In view of the aforesaid, this Special Appeal is not maintainable and is accordingly dismissed in limine.




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