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2021 DIGILAW 1741 (MAD)

Government of Tamil Nadu, Rep. by its Principal Secretary to Government Animal Husbandry, Dairying and Fisheries (MP2) Department, Secretariat v. S. Rajendiran

2021-06-14

KRISHNAN RAMASAMY, PUSHPA SATHYANARAYANA

body2021
JUDGMENT : Pushpa Sathyanarayana, J. Challenge in these writ appeals is to the common order dated 15.10.2020 made in W.M.P. Nos.18541 & 18544 of 2020 in W.P. Nos.14925 & 14927 of 2020. 2. W.P. No.14925 of 2020 is for a writ of certiorarified mandamus to call for the records relating to the order No.2601/Pers.IR.1/2019 dt.14.09.2020 passed by the Managing Director-cum-Commissioner of Milk Production, Tamil Nadu Co-operative Milk Producers Federation Ltd., and to quash the same as being illegal, arbitrary, and contrary to the service byelaws of the Tamil Nadu Co-operative Milk Producers Federation Ltd and for a consequential direction to the respondents to drop all further proceedings in pursuance to the charge memo No.2601/Pers.IR.1/2019 dt.15.07.2019 and to treat the period of suspension from 20.02.2019 to 26.12.2019 as spent on duty without any leave adjustment. 3. W.P. No.14927 of 2020 is for a writ of certiorarified mandamus calling for the records relating to the order No.1873/Pers.Estt.1/2020 dt.17.09.2020 passed by the Managing Director-cum-Commissioner of Milk Production, Tamil Nadu Co-operative Milk Producers Federation Ltd., and to quash the same as being illegal, arbitrary, and contrary to the service byelaws of the Tamil Nadu Co-operative Milk Producers Federation Ltd and for a consequential direction to the respondents therein to restore the petitioner to the post of General Manager (Dairying) with all consequential benefits and to settle his terminal benefits in the scale of General Manager (Dairying). 4. At the time of admission of both the writ petitions, the writ petitioner was granted an order of interim stay. The second respondent therein also filed a counter affidavit seeking to vacate the interim stay granted. 5. It is well settled law that a writ appeal would not lie against an interim order. Instead of getting the stay vacated in the writ petitions and get the writ petitions finally disposed of, the appellants have rushed to this court by filing these writ appeals, which are not at all maintainable. 6. The issue as to whether a writ appeal under clause 15 of the Letters Patent is maintainable as against an interim order granted in a writ petition, is no longer res integra. An application under Article 226(3) of the Constitution of India, can be filed for vacating the said order and that an appeal directly against such interim order should not be entertained. An application under Article 226(3) of the Constitution of India, can be filed for vacating the said order and that an appeal directly against such interim order should not be entertained. For better appreciation, Article 226(3) is extracted hereunder: (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without? (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated. 7. In Midnapore Peoples Coop. Bank Ltd. & Ors. vs. Chunilal Nanda & Ors., in Appeal (civil) 1727 of 2002, dated 25.05.2006, the Hon'ble Supreme Court has considered the scope of Clause 15 of the Letters Patent and in Paragraph No.16, it has been held as follows: 16. Interim orders/interlocutory orders passed during the pendency of a case, fall under one or the other of the following categories : (i) Orders which finally decide a question or issue in controversy in the main case. (ii) Orders which finally decide an issue which materially and directly affects the final decision in the main case. (iii) Orders which finally decide a collateral issue or question which is not the subject matter of the main case. (iv) Routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment. (ii) Orders which finally decide an issue which materially and directly affects the final decision in the main case. (iii) Orders which finally decide a collateral issue or question which is not the subject matter of the main case. (iv) Routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment. (v) Orders which may cause some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the parties. The term 'judgment' occurring in clause 15 of the Letters Patent will take into its fold not only the judgments as defined in section 2(9) CPC and orders enumerated in Order 43 Rule 1 of CPC, but also other orders which, though may not finally and conclusively determine the rights of parties with regard to all or any matters in controversy, may have finality in regard to some collateral matter, which will affect the vital and valuable rights and obligations of the parties. Interlocutory orders which fall under categories (i) to (iii) above, are, therefore, 'judgments' for the purpose of filing appeals under the Letters Patent. On the other hand, orders falling under categories (iv) and (v) are not judgments for purpose of filing appeals provided under the Letters Patent." 8. A Hon'ble Division Bench of this court in The State of Tamil Nadu vs. Evos Design Living Private Limited made in W.A. No.1024 of 2017 dated 21.08.2017 has held that writ appeal filed against an interim order is not maintainable. 9. In Southern Academy of Maritime Studies vs. A.M. Akash and others made in W.A. No.1819 of 2019 dated 14.06.2019 another Hon'ble Division Bench of this court, referring to the following decisions, has held that writ appeal against interim order should not be entertained and further observed that the appellant can move the writ court under Article 226(3) of the Constitution of India. The relevant paragraphs in the said judgment are extracted hereunder: 11. The issue as to whether a writ appeal under clause 15 of the Letters Patent is maintainable as against an interim order granted in a writ petition, is no longer res integra. The relevant paragraphs in the said judgment are extracted hereunder: 11. The issue as to whether a writ appeal under clause 15 of the Letters Patent is maintainable as against an interim order granted in a writ petition, is no longer res integra. The same has been dealt with by a Hon'ble Division Bench of this Court and held that when an interim order is passed, an application under Article 226(3) of the Constitution of India, can be filed for vacating the said order and that appeal directly against such interim order should not be entertained. Reference can be made to the following decisions. (i) In Anna University v. Narayanaguru International Institute of Science and Technology (Regd. Trust) and others in W.A.(MD) No.466 of 2015 dated 14.05.2015, after considering the earlier decisions of this Court, a Hon'ble Bench, held that a writ appeal as against an interim order, which has not attained finality, granted in a writ petition, is not maintainable. (ii) A similar question came for consideration before another Hon'ble Division Bench of this court in R. Kannan v. Indcom Electronics Ltd., stating that the order impugned therein is not a judgment within the meaning of Clause 15 of Letters Patent of this court, a Hon'ble Division Bench, elaborately considered the matter, and held that the interim order made in the petition, which has not reached finality, determining the rights and liabilities between the parties cannot be said to have caused grave and substantial injustice to the appellant and will not fall within the meaning of the word 'judgment' occurring in Clause 15 of the Letters Patent. Accordingly, the Hon'ble Division Bench held that writ appeal was not maintainable against an interim order. (iii) In Dr. Chinnaraj Joseph Jeyakumar Joseph Jeyakumar v. The Governing Counsel of American College and others in W.A. No.540 of 2008, dated 02.08.2008, another Hon'ble Division Bench of this court held that ex-parte interim orders are not judgments for an aggrieved person to invoke the jurisdiction of the Appellate Court, under clause 15 of the Letters Patent. Adopting the same legal principle, W.A. No.2347 of 2012, dated 05.12.2012, was disposed of by the Hon'ble First Bench giving liberty to the appellant therein to file application to vacate the interim order. Adopting the same legal principle, W.A. No.2347 of 2012, dated 05.12.2012, was disposed of by the Hon'ble First Bench giving liberty to the appellant therein to file application to vacate the interim order. (iv) In Hindu Nadar Educational Trust, represented by its Managing Trustee and others vs. Hindu Nadar Uravinmurai, Nilakottai, in W.A.(MD) No.312 of 2016 dated 22.02.2016, a Hon'ble Division Bench of this court, held as follows: "In the abovesaid circumstances, we would only clarify that the interim order, granted in W.M.P.(MD) Nos.23 and 24 of 2016 in W.P.(MD) No.23 of 2016 dated 05.01.2016, would be an interim order, till the miscellaneous petitions are finally heard and decided, along with the vacate stay petition. It shall not be an interim order, as prayed for, in the miscellaneous petitions, till the disposal of the writ petition. It could only be an interim order, till the parties to the lis, are put on notice, in the interim applications and heard. With the above clarification, we only request the Writ Court, to take up the injunction petitions in W.M.P.(MD) Nos.23 and 24 of 2016 in W.P.(MD) No.23 of 2016, along with the vacate stay petition, and pass orders, as expeditiously as possible. Registry is directed to place the matter before the learned single Judge. Accordingly, the writ appeal is disposed of. No costs. Consequently, C.M.P.(MD) No.1856 of 2016 is closed." (v). In Special Tahsildar No.III, Land Acquisition, Lignite Project, Neyveli vs. V. Rangasamy Reddiar, reported in AIR 1988 Madras 162, this Court, has held as follows: "2. We are very much concerned to note a disturbing tendency that is fast developing now-a-days. In the recent past, we have come across several matters in which appeals are filed against ad interim exparte orders without resorting to the normal course of approaching the court which passed such orders and seeking appropriate further orders in spite of the law having been clearly laid down by a Division Bench of this Court in Abdul Shukoor v. Umachander AIR 1976 Mad 350. No doubt, that case arose out of an order emanating from a Subordinate Court. The ratio of the decision will apply with more force to an order passed by a learned single Judge of this Court. Moreover the ad interim orders are not judgments within the meaning of clause 15 of the Letters Patent. 3. No doubt, that case arose out of an order emanating from a Subordinate Court. The ratio of the decision will apply with more force to an order passed by a learned single Judge of this Court. Moreover the ad interim orders are not judgments within the meaning of clause 15 of the Letters Patent. 3. What concerns us most is that the Government and statutory Corporations very often indulge in by-passing the only lawful course and adopting a course expressly disapproved by this court. We hold that the appeals ought not to have been filed in this case. The only course open to the Government was to approach the court in charge of civil miscellaneous petitions and pray for the passing of appropriate final orders in the civil miscellaneous petition. We hope that there will be no recurrence of similar instances in future. We make it clear that if we come across any such appeals in future, we will be constrained not only to dismiss such appeals, but also penalise the parties concerned with orders of heavy costs." The above said decision (AIR 1988 Madras 162) has been followed in Syed Zehera Jabeen vs. S. Padmanabhan, reported in 1988 II MLJ 423 = 1989 (1) L.W 112 , and Telecom Regulatory Authority of India vs. Bharti Airtel Ltd., reported in 2013 (5) CTC 264 . 10. Another Hon'ble Division Bench of this court in a recent judgment in P. Mahalingam vs. Vanitha and others reported in MANU/TN/3286/2020 following the decision of this court in Southern Academy of Maritime Studies (supra) held that writ appeal against interim order is not maintainable. 11. In the light of the decisions of the Division Benches of this court stated supra, we are not inclined to entertain the instant writ appeals. Accordingly, both the writ appeals are dismissed as not maintainable. No costs. Consequently, the connected civil miscellaneous petitions are closed. 12. However, the appellants are advised to go before the learned single Judge and get the writ petitions finally disposed of. Registry is directed to list the writ petitions before the learned single Judge who is having roster.