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Bharat Petroleum Corporation Limited, Represented by its Chairman & Managing Director & Another v/s A.R. Saju & Others

    WA Nos. 917, 918 of 2021

    Decided On, 02 August 2021

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS & THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

    For the Petitioner: Benny P. Thomas, D. Prem Kamath, Advocates. For the Respondents: J.P. Cama, Elvin Peter, P. Vijayakumar, Asgi, C.S. Ajithkumar, P. Ramakrishnan, Advocates.



Judgment Text

1. Being aggrieved by the common interim order dated 15.07.2021 rendered by the learned Single Judge in W.P(C) Nos.12838 & 12917 of 2021, the appellants herein, who are respondents 2 and 3 in the former W.P(C) and respondents 4 to 6 in the latter W.P(C), have preferred these intra-court appeals under Sec.5(i) of the Kerala High Court Act.

2. Heard Sri.J.P.Cama, learned Senior Counsel instructed by Sri.Benny P.Thomas, learned Standing Counsel for the Bharat Petroleum Corporation Ltd. appearing for the appellants, Sri.P.J.Elvin Peter, learned counsel appearing for the writ petitioners in the former case, Sri.C.S.Ajith Prakash, learned counsel appearing for the petitioners in the latter W.P(C) and Sri.P.Ramakrishnan, learned counsel appearing for the other respondents, who have been additionally impleaded as respondents in the latter W.P(C).

3. The impugned order has been rendered by the learned Single Judge on 15.07.2021 at the admission stage, wherein it has been held that the writ petitioners have made out a case for admitting the writ petitions and that, in view of the prima facie nature of the case disclosed and to ensure the preservation of the subject matter of the lis, it has been ordered that the proceedings in pursuance of clause 2(iii) of the impugned Ext.P-6 circular including the exclusion of workmen eligible under the long term settlement scheme from the post retirement medical benefit scheme and the transfer of funds to the National Pension Scheme in terms of the said clause 2(iii) shall stand deferred and that too, for a period of two months. The appellants would point out that they have argued a strong case that the writ petitions itself are not maintainable, as essentially the pleas in the writ proceedings would amount to enforcement of a long term settlement, which in the nature of things, has to be adjudicated in terms of the provisions contained in the Industrial Disputes Act and that therefore, writ petitions of this nature are not maintainable. In that regard, it is also urged by the appellants that clause 50 of Ext.R2(a) Long Term Settlement would make it clear that if there is any dispute regarding the implementation of the said settlement or interpretation of any of its provisions, the parties will have to try to sort out their differences through mutual discussion, failing which they shall resort to the machinery prescribed under the Industrial Disputes Act, 1947, etc.

4. Per contra, the learned Advocates appearing on the other side would strongly urge that, going by the peculiar nature of the facts and circumstances of the case, the impugned action of the appellants in terms of clause 2(iii) of Ext.P6 circular would amount to blatant violation of clause 42 of the Long Term Settlement dealing with retirement benefits and other applicable norms in the matter. It is also strongly urged by the learned Advocates appearing for the writ petitioners that if no interdiction is made with the impugned provisions at least pending adjudication of the matters in terms of the provisions contained in the Industrial Disputes Act, then practically the matter will become infructuous by the inexorable events that may quickly happen in the course of time and that therefore, writ intervention is highly necessary in this case in the interest of justice and equity. Various other contentions have also been made on both sides.

5. After hearing both sides, we are of the firm view that there is no necessity for us to examine these rival pleas at this stage for the simple reason that the impugned interim order has been rendered by the learned Single Judge on 15.07.2021 only at the admission stage while admitting the writ petitions and ordering that the impugned proceedings shall stand deferred only for a period of two months, pending consideration of the interim reliefs. In other words, the pleas for interim reliefs sought for by the writ petitioners has not been disposed of by the learned Single Judge after hearing both sides and it is only an ad-interim order. The said interim order issued at the admission stage is only for a period of two months.

6. Intra-court appeal in this Court is regulated by Sec.5(i) of the Kerala High Court Act, which provides as follows:

“Section 5 - Appeal from judgment or order of single Judge

An appeal shall lie to a Bench of two Judges from—

(i) a judgment or order of a single Judge in exercise of original jurisdiction; or

xxx xxx xxx

xxx xxx xxx”

A larger Bench of 5-Judges of this Court in the decision in K.S.Das v. State of Kerala [1992 (2) KLT 358 (LB)] has held in para 46 thereof that the word 'order' appearing in Sec.5(i) of the Kerala High Court Act, 1958 includes apart from other orders, orders passed by the High Court in miscellaneous petitions filed in writ petitions, provided the orders are to be in force pending the writ petition. An appeal would lie against such orders only if the orders substantially affect or touch upon the substantial rights or liabilities of the parties or are matters of moment and cause substantial prejudice to the parties. The nature of the 'order' appealable belongs to the category of 'intermediate orders' referred to by the Apex Court in Madhu Limaye's case [AIR (1978) SC 47]. Further that, the 'order' appearing in Sec.5(i) of the Kerala High Court Act cannot be construed as being confined only to a final order, which disposes of the writ petition. The 'orders' should not however, be ad-interim in force pending the miscellaneous petition or orders merely of a procedural nature. But that, this does not mean that the Division Bench hearing the appeal against such 'orders' will have to admit the appeal or have to modify the impugned order or set it aside in every case. That, there is difference between the question whether an appeal lies in the Division Bench and as to the scope of interference. Normally, discretionary orders are not interfered with unless the impugned orders are without jurisdiction, contrary to law, or are perverse and they also cause serious prejudice to the parties in such a manner that it might be difficult to restore the status quo ante or to grant adequate compensation. That the idea is to provide an internal remedy in such cases without compelling the parties to go all the way to Apex Court under Article 136 of the Constitution of India or increase the burden of that court unnecessarily, etc. It will be pertinent to refer to para 46 of the judgment of the Larger Bench of this Court in K.S.Das's case supra, which reads as follows:

“46. We are of the view that the order appealed against in State of Kerala v. Thankamma & ors., 1968 KLT 390 (FB) under S.5(i) was a 'preliminary judgment' dealing with the vires of the relevant provisions and the decision of the Full Bench was correct on facts. The observations of the Division Bench in P.K. Kunju v. State of Kerala, 1970 KLT 644 against orders as going to the 'root' are rather too wide. So far as the decision in Mohammed Haji v. Ayamma,1976 KLT 326 (FB) is concerned, it related to S.5(iii) and has no relevance. The decision of the Full Bench in State of Kerala v. Sudarsan Babu, 1983 KLT 764 (FB) dealt with an appeal refusing to review an order directing issue of notice to the Speaker of the Legislative Assembly and the ultimate conclusion that the order is not appealable is, in our view, correct, but with great respect, we do not agree that the word 'order' in S.5(i) takes its colour from the word 'judgment' in S.5(i). We also do not agree, with great respect, with the view in State of Kerala v. Krishnankutty, 1985 KLT 201 holding that 'order' in S.5(i) is in the nature of a 'final order'. We also do not agree with the obiter observations in Damodaran v. Sankaran, 1985 KLT 153 in so far as they related to S.5(i), and we are not concerned with the conclusions therein relating to S.5(ii).

Conclusion: (1) The word 'order' in S.5(i) of the Kerala High Court Act, 1958 includes, apart from other orders, orders passed by the High Court in Miscellaneous Petitions filed in the Writ Petitions provided the orders are to be in force pending the Writ Petition. An appeal would lie against such orders only if the orders substantially affect or touch upon the substantial rights or liabilities of the parties or are matters of moment and cause substantial prejudice to the parties. The nature of the 'order' appealable belongs to the category of 'intermediate orders' referred to by the Supreme Court in Madhu Limaye's case, AIR 1978 SC 47. The word 'order' is not confined to 'final order' which disposes of the Writ Petition. The 'orders' should not however, be ad-interim orders in force pending the Miscellaneous Petition or orders merely of a procedural nature.

(2) But this does not mean that the Division Bench hearing the appeal against such 'orders' will have to admit the appeal or have to modify the impugned order or set it aside the same in every case. There is difference between the questions whether an appeal lies to a Division Bench and as to the scope of interference. Normally, discretionary orders are not interfered with unless the impugned orders are without jurisdiction, contrary to law, or are perverse, and they also cause serious prejudice to the parties in such a manner that it might be difficult to restore the status quo ante or grant adequate compensation. The idea is to provide an internal remedy in such cases without compelling the parties to go all the way to the Supreme Court under Art. 136 of the Constitution of India or increase the burden of that court unnecessarily.

(3) It will, however, be incumbent upon the appellant to serve the counsel who has appeared before the Single Judge for the opposite party (unless of course the counsel's authority has been revoked or he is dead) and when such appeals against orders come up in appeal for admission before the Division Bench, it will be open to the Bench to treat such service as mentioned above as sufficient service on the parties (unless the court, in the circumstances of the case, thinks otherwise) and to dispose of the appeal either at the stage of admission or soon thereafter, after considering the facts of the case or subsequent events. This would generally obviate admission of the Writ Appeals, issue of notice and the passing of interim orders pending Writ Appeals.”

7. It may also be relevant to take note of the observations in the concurring judgment in para 116 of K.S.Das's case supra, which reads as follows:

“116. To sum up, I agree with the conclusions of the learned Chief Justice and hold that an appeal is maintainable against an interlocutory order provided it is a final order on the miscellaneous petitions in the sense that it is not an ad interim order if the order substantially affects of touches upon substantial rights and liabilities of the parties or are matters of moment or matters which would cause real legal prejudice to the parties, even though the parent original proceedings is alive. The nature of the order appealable can be classified in the category of “intermediate orders”, within that frame in which the Supreme Court has used that term in Madhu Limaye's case (AIR 1978 SC 47). It is not necessary that to attract S.5(i) to maintain an appeal that the order should have the label of a final order in the sense that it disposes of the original proceedings under Art.226 of the Constitution.”

8. Further, a Division Bench of this Court in the decision in T.K.Govindan v. Sudhakaran.K & Ors. {ILR 2008 (1) Ker.41} has held that, for an interim order to be appealable under Sec.5(i) of the Kerala High Court Act, it must substantially affect or touch upon the rights and liabilities of the appellant and an order admitting the writ petition after overruling the contention regarding maintainability of the writ petition, is not an appealable order. It will be pertinent to refer to para 8 of the judgment of the Division Bench of this Court in T.K.Govindan's case supra {ILR 2008 (1) Ker.41}, which reads as follows:

“8. The appellant seriously challenged that part of the impugned order, by which the preliminary objection regarding the maintainability of the writ petition was overruled. We feel that the said part of the order is not an appelable order in terms of Section 5(i) of the Kerala High Court Act, which reads as follows:

“5. Appeal from judgment or order of Single Judge.- An appeal shall lie to a Bench of two Judges from-

(i) a judgment or order of a Single Judge in the exercise of original jurisdiction; or …........”

For an order to be appelable under Section 5, it must substantially affect or touch upon the rights or liabilities of the appellant. Further, it must be an order of moment causing substantial prejudice to him, going by the conclusions laid down in the decision of this Court in K.S.Das's case. The learned Single Judge only overruled the contentions regarding the maintainability of the writ petition. The same cannot be treated as an appellable order. This view is supported by the abovementioned five Judges' Bench decision in K.S.Das v. State of Kerala. Jagannadha Rao, C.J. (as His Lordship then was), in His Lordship's leading judgment held as follows:

“In our view, the word 'order' under S.5(i) cannot be equated to any order, as wide as the one in Art.136. If such a wide construction is to be adopted, it might, as contended for the respondents, lead to several absurd or incongruous results. An 'order' obviously cannot include mere procedural orders of adjournment, admission of writ, summoning of documents or witnesses, or directing local inspection etc., which orders do not seriously affect the rights of the parties. Therefore, as contented for the respondents, the 'literal construction' test fails for, the Legislature, in our view, never used the word 'order' in such an extremely wide sense.” (emphasis supplied)

The above quoted view of the learned Chief Justice is supported by three more of the five learned Judges, who constituted the Bench. Paripoornan, J. (as His Lordship then was), who penned the dissenting judgment, held that no appeal will lie against any interim order. So, the above quoted view is supported by the said learned Judge also. The appellant, in fact, challenges the decision of the learned Single Judge to admit the writ petition and issue notice to the respondents. Though the appellant pointed out that the writ petition should not have been admitted and it should have been dismissed in limine, by raising a preliminary objection, the said objection was overruled. The learned Judge took the stand that the order passed by him for issuing notice in the writ petition is correct. Such an order, in the light of the above authoritative pronouncement, is not one against which an appeal will lie under Section 5(i) of the Kerala High Court Act. Therefore, according to us, the Writ Appeal is not maintainable and therefore, the same fails.”

9. So, going by the abovesaid legal position laid down by the Larger Bench in K.S.Das's case supra, the orders which are amenable to appellate challenge under Sec.5(i) of the Kerala High Court Act should be an 'order' passed by the High Court in miscellaneous petitions filed in the writ petitions, provided the 'orders' are to be in force pending the writ petition and an appeal against such orders would lie only if the orders substantially affect or touch upon the substantial rights or liabilities of the parties or are matters of moment and cause substantial prejudice to the parties. Further, it has been reiterated by the Larger Bench in K.S.Das's case supra that the 'orders', should not be ad-interim orders in force pending the miscellaneous petition or orders merely of a procedural nature. In the instant case, true that the learned Single Judge has passed the order after hearing both sides at the admission stage, wherein it has held that the case is to be admitted and it is only for the preservation of the subject matter of the lis that the learned Single Judge has ordered that further proceedings in pursuance of the impugned circular be deferred and that too, only for a limited period of two months as of now. Hence, we are constrained to take the view that the present impugned interim orders passed by the learned Single Judge in these cases would not attract appealability as understood by the Larger Bench in case K.S.Das's case supra in terms of Sec.5(i) of the Kerala High Court Act.

10. Sri.J.P.Cama, learned Senior Counsel instructed by Sri.Benny P.Thomas, learned Standing Counsel for the appellants would then submit that this Court may direct the

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early final disposal of the main matter in the W.P(C) without much delay and that it may be made clear that the point of maintainability of the writ petition should also be an issue which is at large for consideration of the learned Single Judge in the writ petition. 11. The learned senior counsel for the appellants submits that this Court may also order that the final disposal of the writ petition may be effectuated untrammeled and uninfluenced in any manner by the observations and findings in the impugned interim orders. Since the impugned interim orders have been passed only at the ad-interim stage, the said apprehension of the appellants may not be well-founded and it goes without saying that the final disposal of the main matter in the W.P(C)s will be uninfluenced by any of the observations and findings made in the impugned interim orders and so the issue of maintainability could also be raised at the time of disposal of the W.P(C). 12. All the learned advocates appearing for the respondents would fairly submit that they do not have any objection to the said course of action and that even the point of maintainability can also be raised as an issue by the appellants, if they so desire, at the stage of final disposal of the writ petitions. 13. Accordingly, we would request the learned Single Judge to consider the early final disposal of W.P(C) Nos.12838 & 12917 of 2021, without much delay, preferably within a period of three months, if that is feasible. The appellants submit that they have already filed their counter affidavits in these cases. It is for the petitioners to file any reply affidavits thereto, if they so prefer. No other orders and directions are called for in these cases. With these observations and directions and with the said liberty, the above Writ Appeals will stand disposed of.
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