Swapanananda Pattanayak Vs. State of Orissa and Two 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. order1. heard learned counsel for the petitioner and mr. r.k. mohapatra, the learned government advocate for the opposite parties.2. since this matter involves directly the administration of justice and is with regard to the powers of the public prosecutor, we are deciding the writ petition at the admission stage, particularly when the impugned order has been passed by the public prosecutor, who has not filed any counter affidavit. other opposite parties have chosen not to file any counter affidavit.3. by the impugned order dated 2.6.2009 under annexure-2 to the writ petition, the public prosecutor has withdrawn mr. swapnananda pattanaik, who is the petitioner in the case and was working as app in the court of ad hoc additional district judge track i, puri, from appearing the said court. the petitioner was appointed as an app by the government of orissa in terms of the powers conferred on it under section 25, crpc. such appointment is to be made in accordance with the orissa law officer's rules, 1971.4. the effect of the impugned order is that the petitioner has become a workless app, though he is drawing his retainership fee. the impugned order passed by the public prosecutor leaves no room for doubt in our mind that the said order was passed by way of punishment. we do not express any opinion whether the petitioner was involved in any misconduct or not, but had he been involved in any misconduct same should have been put to him and inquiry should have been conducted. but giving punishment without even giving the show cause is not acceptable to this court, particularly when it is a case involving an advocate. we are also aware that in terms of the rules the public prosecutor has no power to pass any order while distributing the work in not entrusting any work to any particular app, as has been done in the instant case, though in effect he has not been removed from the post of app. both ways the impugned order cannot be justified. if the petitioner is not conducting any case in the manner which he is supposed to conduct then he should not be an app even only for the purpose of retainership fee. if the petitioner has not committed any misconduct, he should not suffer.5. learned government advocate has referred to rule 12(2) of the orissa law officer's rules, 1971. this rule also does not by any stretch of imagination give any power to the public prosecutor to pass an order in the nature of the impugned order. the said order is absolutely arbitrary one. therefore, the writ petition is allowed and the impugned order under annexure - 2 is quashed. the public prosecutor - opposite party no. 3 is imposed with costs of rs. 1000/- (rupees one thousand) which shall be paid by him personally and not by the government of orissa. the costs shall go to the orissa state legal services authority.6. urgent certified copy of the order may be granted on proper application.

Judgment:
ORDER

1. Heard learned Counsel for the petitioner and Mr. R.K. Mohapatra, the learned Government Advocate for the opposite parties.

2. Since this matter involves directly the administration of justice and is with regard to the powers of the Public Prosecutor, we are deciding the writ petition at the admission stage, particularly when the impugned order has been passed by the Public Prosecutor, who has not filed any counter affidavit. Other opposite parties have chosen not to file any counter affidavit.

3. By the impugned order dated 2.6.2009 under Annexure-2 to the writ petition, the Public Prosecutor has withdrawn Mr. Swapnananda Pattanaik, who is the petitioner in the case and was working as APP in the Court of Ad hoc Additional District Judge Track I, Puri, from appearing the said Court. The petitioner was appointed as an APP by the Government of Orissa in terms of the powers conferred on it under Section 25, CrPC. Such appointment is to be made in accordance with the Orissa Law Officer's Rules, 1971.

4. The effect of the impugned order is that the petitioner has become a workless APP, though he is drawing his retainership fee. The impugned order passed by the Public Prosecutor leaves no room for doubt in our mind that the said order was passed by way of punishment. We do not express any opinion whether the petitioner was involved in any misconduct or not, but had he been involved in any misconduct same should have been put to him and inquiry should have been conducted. But giving punishment without even giving the show cause is not acceptable to this Court, particularly when it is a case involving an advocate. We are also aware that in terms of the Rules the Public Prosecutor has no power to pass any order while distributing the work in not entrusting any work to any particular APP, as has been done in the instant case, though in effect he has not been removed from the post of APP. Both ways the impugned order cannot be justified. If the petitioner is not conducting any case in the manner which he is supposed to conduct then he should not be an APP even only for the purpose of retainership fee. If the petitioner has not committed any misconduct, he should not suffer.

5. Learned Government Advocate has referred to Rule 12(2) of the Orissa Law Officer's Rules, 1971. This Rule also does not by any stretch of imagination give any power to the Public Prosecutor to pass an order in the nature of the impugned order. The said order is absolutely arbitrary one. Therefore, the writ petition is allowed and the impugned order under Annexure - 2 is quashed. The Public Prosecutor - opposite party No. 3 is imposed with costs of Rs. 1000/- (Rupees one thousand) which shall be paid by him personally and not by the Government of Orissa. The costs shall go to the Orissa State Legal Services Authority.

6. Urgent certified copy of the order may be granted on proper application.