Back
2007 Supreme(Ori) 183
2007 (Supp.-I) OLR — 704
M. M. DAS, J.
Sri Dulal Chandra Barik & another...Petitioners
Versus
Sri. P. R. S. Oberoi & another...Opp.Parties
Misc. Case No.51 of 1998
(Arising out of Civil Revision No.246 of 1997)
(Date of Order : 14.3.3007)
For Petitioner:M/s. J. Patnaik, T. K. Pattnaik, H. M. Dhal, A. A. Das, S. Das, R. Rath, K. C. Kanungo, P. K. Patnaik & S. S. Behera
For Opp.Parties:M/s. G. S. Rath, A. Mohapatra, S.K. Mishra (sole O.P.) Mr. N. K. Mishra
M/s. B. Pal, N. K. Misra & S. K. Mishra (O.P. No.1)
Headnote:1. CIVIL PROCEDURE CODE, 1908 - Order 39, Rule 2-A - Allegation that the order of dismissal having been passed during the period when the stay order was operating the O.Ps. are liable to be punished under Order 39, Rule 2-A CPC - To invoke jurisdiction of the Court under Rule 2-A of Order 39, CPC it is required to be proved that there was in existence, of an order under Rules 1 and 2 of Order 39, CPC and the same has been disobeyed or breached by the person/persons who was/were injuncted by the said order which was in force on the date of alleged violation - Held, in the present case on the date of the alleged violation of the order of stay as alleged, no order of interim injunction under Order 39, Rules 1 and 2 CPC was in existence.
(Paras - 7, 8 and 15)
2. CIVIL PROCEDURE CODE, 1908 - Order 39, Rule 2-A - Whether by applying the theory of merger, the interim order of injunction passed by the lower Court should be treated to have been merged with the judgment passed by the lower appellate Court and if it is construed to have merged as such, whether by stay of operation of the appellate Court's judgment, the order of interim injunction which was passed by the trial Cout would revive ? - Discussing the provisions of law as decided by the Apex Court and facts of the present case, held, the said order of stay of operation of the appellate judgment being passed by High Court on 7.10.1997 it cannot be concluded that the said stay order had the effect of reviving the interim order of injunction passed by the learned trial Court which by that time stood merged with the judgment passed by the lower appellate Court - By such stay order, it cannot be held that the effect of the judgment of the lower appellate Court was wiped out from existence. (Paras - 12 to 15)
3. MERGER - Doctrine of - Doctrine of merger is a common law doctrine founded on principle of propriety in the hierarchy of Justice delivery system and the said doctrine of merger is not a doctrine of universal or unlimited application. (Para - 15)
ORDER
M. M. DAS, J. : This Misc. Case has been filed under Order 39, Rule 2-A of the Code of Civil Procedure in Civil Revision No.246 of 1997 which was disposed of by this Court by judgment dated 7.5.1999. The allegation is made by the petitioners who were the petitioners in the Civil Revision is that the order passed by this Court on 7.10.1997 in the Civil Revision has been violated.
2. The factual back-ground of the case is that the peti¬tioner No.1 along with 43 other workmen were employees of M/s. Hotel Oberoi, Bhubaneswar. Due to alleged violent demonstration by the said workmen, the management of the said hotel suspended them pending disciplinary proceedings. Charge sheet was issued by the then Manager, the present O.P. No.4 to the said employees including the petitioner No.1. The petitioner No.1 and the em¬ployees union-petitioner No.2 filed T.S. No.138 of 1997 praying for a decree to declare that the charge sheet issued to the workmen on the basis of the certified standing Orders is illegal and void. Misc. Case No.195 of 1997 was filed by the petitioners for an interim order of injunction under Order 39, Rules 1 and 2 C.P.C. in the said suit. The learned Civil Judge (Junior Divi¬sion), Bhubaneswar before whom the said suit was pending, passed an order of interim injunction on 2.7.1997 allowing the said Misc. Case No.195 of 1997 and directing that the opp.parties in the said Misc. Case were restrained to take further action against the petitioner No.1 on the basis of the Certified Stand¬ing Orders dated 18.10.1996 during the pendency of the suit. being aggrieved, the then General Manager who was the defendant in the suit preferred Misc. Appeal No.88 of 1997 before the learned District Judge, Khurda, Bhubaneswar against the interim order of injunction passed by the learned trial Court. By judg¬ment dated 13.10.1997, the learned District Judge holding that the suit filed by the plaintiffs is not maintainable as well as the plaintiffs-respondents in the said appeal do not have a prima facie case and there is no question of irreparable injury being caused to them/him, allowed the appeal and vacated the order of interim injunction passed by the learned trial Court.
3. The petitioners being aggrieved by the said appellate order preferred Civil No.246 of 1997, out of which the present Misc. Case arises. Along with the Civil Revision petition, Misc. Case No.314 of 1997 was filed by the petitioners, inter alia, praying for stay of operation of the order impugned in the Civil Revision and for restraining the opp.parties to proceed with the domestic enquiry against the petitioner No.1 on the basis of the charge sheet.
4. When the said revision was taken up for hearing on the question of admission on 7.10. 1997 by this Court, the following orders were passed on the interim application registered as Misc. Case No.314/1997.
“As an interim measure, it is directed that the operation of the order dated 4.10.1997 passed in Misc. Appeal No.88 of 1997 shall remain stayed.
The matter may be listed on 27.10.1997.”
Sd/- P.K. Misra, J.
(Vacation Judge)
The General Manager, Hotel Oberoi was the only opp.party in the Civil Revision No.246 of 1997. However, in the present Misc. Case No.51 of 1998, the petitioners while impleading the said General Manager by name as opp.party No.2, have also impleaded on Shri P.R.S. Oberoi, Vice Chairman-cum-M.D. East India Hotels Limited and one Mr. Zafrulla Khan, Manager H.R.D. Hotel Oberoi as opp.parties 1 and 3 respectively.
5. The Civil Revision No.246 of 1997 has been disposed of by this Court by judgment dated 7.5.1999, inter alia, holding that the view of the learned appellate Court that the suit was not maintainable at the instance of the petitioners is erroneous. However, this Court in the said judgment finding that in the meantime, the domestic enquiry has been concluded and the peti¬tioner No.1 has been dismissed from service, came to the conclu¬sion that there is no scope for giving any inte
