No Right To Appeal Against Orders Passed At Preliminary Stage Unless It Has A Bearing On Party's Rights In Contest: Allahabad High Court

The Allahabad High Court has held that merely calling for an explanation from an officer does not amount to any legal injury if neither stricture has been passed nor disparaging or harsh remarks have been made against him.

The bench comprising Justices Saumitra Dayal Singh and Rajendra Kumar-IV held that sitting in intra-court appeal jurisdiction, it cannot set aside an interlocutory order merely because inconvenience may have arisen to the alleged erring officer. There must be injury caused to the officer because of the interlocutory order to warrant interference in appellate jurisdiction.

While dismissing a special appeal against an order of the single judge, the Court held

“In any event, at this stage no legal injury is seen to have been caused to the Revising Authority, upon an explanation being called, during a judicial proceeding. In so far as the explanation called cannot be described as extraneous to the “fundamental flaw” noted by the learned single judge, we leave every aspect of the matter to be considered by the learned single judge. The mere inconvenience that may have arisen to the Revising Authority may never be enough to maintain this appeal, at this stage.”

Factual Background:

Vide a minor penalty order, censure entry had been awarded to the Petitioner. Five increments were withheld with cumulative effect and, another stipulation was made, to not give any sensitive posting to Petitioner. Thereafter, the then Chairman of the U.P. Power Corporation Limited (UPPCL), suo moto, revised the order and awarded a major penalty of dismissal to the Petitioner. The same was challenged under Article 226 of the Constitution of India.

The single judge called for an explanation from the then Chairman, UPPCL, M. Devraj, Appellant, to ‘explain the circumstances in which he failed to notice the aforesaid gaping flaw in the proceedings before the Inquiry Officer while passing the impugned order.’ This order has been challenged in a special appeal by the Appellant on the ground that no pleadings had been made in the writ petition against the Appellant.

Additional Advocate General, Manish Goyal, appearing for Appellant, stated that the Appellant was temporarily placed as the Chairman of UPPCL. He is now back to his parent cadre, thus, any explanation from him is uncalled for. The appellant was not a party to the petition and has been impleaded by the Court on its own accord.

It was alleged that disparaging remarks had been made against the Appellant, any conclusion being drawn on the basis of the remarks shall be ex-parte. Further, AAG submitted that pleading had been not exchanged in the petition, any explanation at this stage is premature.

Per contra, counsel for respondent-petitioner submitted that an intra-court appeal at this stage is not maintainable as the order impugned is a simple interlocutory order. No final order has been passed, merely an explanation has been called for. Only tentative observations have been made based on a prima facie opinion formed by the Court.

High Court Verdict:

The only issue before the Court in appellate jurisdiction was whether the single judge could implead the Appellant and call for an explanation from him.

Referring to the decision of a full bench of Allahabad High Court in Ashutosh Shrotriya and Ors v. Vice-Chancellor, Dr. B.R. Ambedkar University and others, Justice Singh (for the bench) observed that the single judge has merely formed a tentative opinion based on the prima facie evidence against the procedure followed in the domestic inquiry. The observations made by the single judge cannot be read ‘as strictures passed’ to warrant any interference in appellate jurisdiction.

“A legal proceeding meets its fate or end after many twists and turns. Often, at the fresh or the admission stage, only a prima facie view is formed by Courts, as may take it closer to the final judgment to be reached. Unless, accompanied with a further order that has a bearing on the rights in contest in that proceeding, any observation or order made at such a preliminary stage has neither any binding force nor it may cause any injury, nor it may give rise to the right of an intra-Court appeal to a party.”

Further, the Court held:

“Presently, the word “judgement” requires wider construction yet, undoubtedly being an interlocutory order, to be made appealable, it must also be seen to have decided a matter of moment or to have vitally affected the rights of any party as may work serious injustice to it. In any case, its effect must be direct and immediate and not remote. It is that consequence and effect of an interlocutory order that must be seen to have arisen, in presenti as may allow it to be tested at the intra- Court appeal forum and not a simple inconvenience caused to a party, that may allow it to maintain such a proceeding.”

The Court observed the discretion exercised by the single judge in impleading the Appellant as a party does not call for any interference at this stage as the single judge had adequately discussed the flaw that might have been committed by the Appellant in assuming suo moto jurisdiction. It held that neither personal appearance had been called for nor any harsh measures had been taken against the Appellant, no ‘serious injustice’ had been caused to him.

Relying on decisions of the Supreme Court in Wander Ltd. Vs Antox India P. Ltd. and Roma Sonkar v. M.P. State Public Service Commission, the Court held that no issues had been decided and no vital right had been adjudicated to necessitate interference in the interlocutory order. Further, no disparaging or harsh remarks had been made in the order to cause any harm to the Appellant.

“While offering corrections, the Court always maintains the balance and proportionality required in that function – to remain within the four corners of the law, in dealing with an erring litigant or official. Thus, we have no hesitation to observe that in case the respondent-appellant were to furnish an honest explanation, whatever that be and howsoever unsustainable in law that may appear to be, the learned single judge would certainly consider the same according to the law and offer only that much correction, if required, as may be warranted, to serve the interests of justice and good administration. In the absence of any allegation of personal mala fide pleaded, it is premature to imagine any other consequence may arise.”

It was stated in the Court that the explanation sought is being furnished by the Appellant. Accordingly, the special appeal was dismissed, granting an additional two days time to the Appellant to file an affidavit before the writ court.

Case Title: M. Devaraj vs. Rakesh Kumar Sharma And 5 Others [SPECIAL APPEAL DEFECTIVE No. - 600 of 2023]

Case Citation: 2023 LiveLaw (AB) 273

Counsel for Appellant: Bipin Bihari Pandey, Akansha Sharma, Abhishek Srivastava

Counsel for Respondent: Manu Mishra

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