Pratap Kishore Dash Vs. High Court of Orissa Rep. by Its Registrar (Admn.) and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. s.c. parija, j. 1. the petitioner has filed this writ petition praying inter alia for quashing of the departmental proceeding initiated against him vide d.p. no. 4 of 1993 & the charges framed thereunder & also the report of the enquiring officer submitted in the said departmental proceeding.2. the petitioner joined the orissa judicial service, class-ii, in the year 1976. in the year 1993, while the petitioner was working as s.d.j.m., kamakhyanagar, a departmental proceeding was initiated against him vide d.p. no. 4 of 1993 for alleged act of insubordination, indiscipline & gross misconduct. during pendency of the departmental proceeding, the petitioner was placed under suspension. being aggrieved by the initiation of the disciplinary proceeding against him vide d.p. no. 4 of 1993 & placing him under suspension, the petitioner filed writ petition before this court being ojc no. 15093 of 1996, praying for quashing of the said d.p. no. 4 of 1993 & the order of suspension. this court by order dated 5.11.2003 disposed of ojc no. 15093 of 1996 with the following orders:for the aforesaid reasons, we do not interfere with the initiation of the departmental proceeding against the petitioner, but we direct that the petitioner be forthwith reinstated in service. the departmental proceeding be finalized by the high court as early as possible. the period of suspension of the petitioner will be treated & the salary & . allowances determined in accordance with the rules by the high court depending upon the outcome of the departmental proceeding.3. from the counter affidavit, filed by opposite party no. 1, it reveals that pursuant to the order of this court dated 5.11.2003 passed in ojc no. 15093 of 1996, the petitioner was reinstated in service. subsequently, basing upon his ccrs & his over-all performance, the petitioner was made to retire from government service compulsorily with effect from 07.03.2006 under rule 71 (a) of the orissa service code. since the subject matter of the present writ petition was directly & substantially in issue in the earlier writ petition filed by the present petitioner, i.e. o.j.c. no. 15093 of 1996, which was heard & disposed of by this court by its order dated 5.11.2003, as quoted above, this writ petition is not maintainable being barred by the principles of res judicata.4. in view of the above, this writ petition is not maintainable & the same is accordingly dismissed.indrajit mahanty, j.5. i agree.