Punjab State Vs. Ram Singh - 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. - 1. there is no merit in this second appeal and it must fail. therefore, the first contention has no merit and must fail. such a course has been condemned by the supreme court in state of u.d.k. mahajan, j.1. there is no merit in this second appeal and it must fail. the respondent was working as a head constable in the year 1950, and was reduced in rank and was made a constable. on the 19th of may 1956 he was dismissed from service by the inspector-general of police, pepsu. that led to the present suit for a declaration that his dismissal and reduction in rank were illegal and void, and that he was still in police service. during the trial he gave up the relief claimed so far as his reduction in rank is concerned and confined himself in the suit to the ultra vires nature of the order of dismissal. the suit was contested by the state of punjab because, in the meantime, pepsu and punjab had been merged. the trial court decreed the suit. it was held that there was no compliance with article 311(2) of the constitution of india and so also with rule 16.38 of the punjab police rules, 1984. the state of punjab was dissatisfied with that decision and preferred as appeal to the district court at patiala. the appeal was disposed at by the additional district judge, patiala, and was dismissed. hence the present second appeal.2. the first contention advanced by the state counsel is that the show-cause notice was accompanied by the findings of the enquiry officer and, therefore, there was no violation of the provisions of article 311(2) of the constitution. the courts below have held that inasmuch as the findings of the enquiry officer were not conveyed to the plaintiff, he was handicapped in his defence and, therefore, could not properly show cause as contemplated by article 311(2) of the constitution. the show-cause notice has not been produced ob the record and there is no other evidence to show that either a copy of the enquiry officer's report or his findings were conveyed to the plaintiff. as a matter of fact, even mere conveyance of findings would be of no consequence because the plaintiff is entitled to know the reasons which have prevailed with the enquiry officer in order to show cause against the findings recorded by that officer. therefore, the first contention has no merit and must fail.3. the second contention of the learned counsel for the state is that the offence that was committed by the plaintiff had no relation to the public as such. learned counsel admits that if as a police constable he had extorted money, rule 16.38 of the punjab police rules had to be complied with, but, as the plaintiff impersonated as a c. i. d. inspector -- which rank he did not hold -- rule 16.38 need not be complied with, i have noticed this argument merely to reject the same. the matter really stands concluded by a full bench decision of this court in nand nandan sarup v. district magistrate, patiala, 1966 cur lj 608: (air 1967 punj 342). in the instant case, and (sic) is not disputed that the provisions of the said rule have not been complied with.4. the learned counsel for the respondent has drawn my attention to the fact that the enquiry officer imported his personal knowledge to contradict the stand taken by the plaintiff, whose stand was that his mother-in-law was ill and, therefore, he was absent from duty. the enquiry officer, without himself coming into the witness-box, recorded in the enquiry report that the stand taken by the plaintiff was wrong because he (enquiry officer) had seen the plaintiff sitting behind him with his wife in the cinema hall on that date. such a course has been condemned by the supreme court in state of u. p. v. mohammad nooh, air 1958 sc 86, and it has been held that such a procedure offends the rules of natural justice. on either view of the matter, there is no force in this appeal. the same fails and is dismissed with costs.