Savant, C.J. 1. Heard all the learned counsel; Shri T. G. Rajendran for the petitioner, Shri M. K. Damodaran, Advocate General, for the respondents, Shri P. Santhallngam, amicus curiae, Shri Siby Mathew, Shri V. Giri. Shri Razaak, Shrl K. V. Sohan and Shri Jose as interveners.
2. This petition has been placed before this special Bench pursuant to the order passed by the Chief Justice on a reference made by a Division Bench on 24th July. 2000 referring the matter to a Larger Bench. The need to refer the matter to a Larger Bench arose since all the learned counsel appearing before the Division Bench viz; Shrl Rajendran for the petitioner, Shri Mohammed Yousef, Addl. Advocate General for the respondents and Shri Santhalingam, Amicus Curiae, pointed out that there was a clear conflict between the view expressed by a Division Bench of two learned Judges in Bar Council of Kerala v. Thankappan Pillai, 1985 Ker LT 738 and that expressed by a Larger Bench of five learned Judges in the same case -- Bar Council of Kerala v. Thankappan Pillai, 1985 Ker LT 769 : (AIR 1986 Ker 1 (FB)) on the question of Interpretation of Sec. 3 of the Kerala High Court Act, 1958 (for short, "Act"). It was pointed out to the Division Bench that all the counsel were In agreement with the view expressed by the Division Bench in 1985 Ker LT 738 and stated that the view expressed by the Larger Bench in 1985 Ker LT 769 required reconsideration.
3. Counsel appearing before the Division Bench made a further grievance that there was no consistent and uniform practice in regard to (a) stating the grounds on which a single Judge should refer the matter to a Division Bench Under Section 3 of the Act; and (b) framing and stating the question of law in the order of reference to a Division Bench.
4. In the order of reference, the Division Bench has quoted four instances of orders made by single Judges Under Section 3 of the Act, which are as under :
(I) "ORDER Adjourned under Sections of the Kerala High Court Act for being heard by a Bench. Office will place this before the Honourable the Chief Justice and take orders for posting it before a Bench."
1-9-1992.
(II) "ORDER In view of the important question involved in these writ petitions, the O.Ps and connected C.M.Ps. are adjourned to be heard by a Division Bench. Place the papers before the Honourable the Chief Justice for orders."
16-4-1993.
(III) "REFERENCE ORDER After going through the petition and having heard the counsel for sometime, it would be just and proper that the petition be heard by a bench."
9-1-1997.
(IV) "REFERENCE ORDER The petitioner filed this original petition for the following main relief :
(a) To issue a writ of certiorari or other appropriate order quashing Section 271-G(9) of the Kerala Panchayat Raj Act, 1994 so far as it relates to the conferring of status of High Court Judge to the members of OMBUDSMAN as ultra vires of Article 235 and State list in the 7th Schedule of Constitution of India.
The petitioner seeks to quash Section 271-G(9) of the Kerala Panchayat Raj Act, conferring status of High Court Judge on the members of the OMBUDSMAN. Considering the public importance and the serious questions of law involved in the above matter, I am of the view that it is a matter to be heard by a Division Bench of this Court. Hence place the matter before the Honourable Chief Justice for necessary orders."
14-7-2000.
It will be evident from the above that, in the first case, the single Judge observed "adjourned under Section 3 of the Kerala High Court Act for being heard by a Bench". In the second case, the ground stated is that "Important question" was involved in the petitions. There is no reference to any question of law as such. In the third order, it is stated that "it would be just and proper that the petition be heard by a Bench". The fourth order gives the grounds in brief, setting out the question of law involved namely, the validity of a newly inserted provision regarding conferring the status of High Court Judges on the seven members of the OMBUDSMAN appointed Under Section 271-G(9) of the Kerala Panchayat Raj Act. 1994.
5. It was then pointed out before the Division Bench that, at times, pursuant to a cryptic order of reference by a single Judge, the matter is placed before the Division Bench without a proper order of reference. The Division Bench does not have the benefit of the reasoning of the single Judge's order regarding (a) the ground on which a reference is made and (b) the question of law being framed and stated for reference to the Division Bench. It is in these peculiar facts that the Division Bench referred the following three questions to this Special Bench for consideration :
"(1) Whether in the scheme of the provisions of Sections 3, 4, 5 and 6 of the Kerala High Court Act. 1958 the words "adjourn it for being heard and determined by a Bench of two Judges" appearing in Section 3 of the said Act, are to be construed liberally, meaning an adjournment simpliclter or whether the said words are to be construed narrowly, meaning thereby, a reference to another forum of two Judges for being heard and determined by them.
(2) If the answer to the first question is to the effect that the word "adjourn" means "refer", whether the order of reference is to be a judicial order with brief reasons since it takes away the valuable right of appeal vested in a litigant and whether such an order of reference itself is capable of being challenged in appeal under Section 5 of the Kerala High Court Act. 1958.
(3) Whether the provisions of Section 4 of the Kerala High Court Act, 1958 contemplate a reference by a Division Bench to a Full Bench merely if both Judges in the Division Bench agree that the decision involves a question of law or is it necessary in the scheme of the said provisions that a reference by a Division Bench to a Full Bench would only be necessary where there is a conflict of views expressed by two Division Benches of this Court."
Consequently this Bench has been constituted pursuant to the order passed by the Chief Justice exercising his powers Under Section 6 of the Act. In view of the authoritative pronouncement of the Apex Court in State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1 : (AIR 1998 SC 1344), there was no controversy before us that the matter can be assigned to a Larger Bench for resolving the apparent conflict between the two decisions mentioned above. Section 6 reads as under :--
"6. Cases to be heard by Full Bench under direction by Chief Justice.-- Notwithstanding anything contained In this Act, the Chief Justice may direct that any matter be heard by a Full Bench."
The scope of the powers of the Chief Justice of a High Court has been clearly laid down in the case of Prakash Chand (supra).
6. On the first question whether the words "adjourn It for being heard and determined by a Bench of two Judges" should be construed to mean a reference to a Division Bench for final hearing and decision, the first four learned counsel viz. S/Shri Damodaran, Advocate General, Rajendran, Santhalingam and Mathew contended that the word "adjourn" must necessarily be construed to mean "refer". It must be given a narrow meaning and must be read down. On the other hand, the other four learned counsel viz. S/Shri Giri, Razaak, Sohan and Jose contended that the word "adjourn" must be construed liberally to mean "adjournment simpliciter". In order to appreciate the controversy, we find it necessary to reproduce the Kerala High Court Act, 1958 consisting of only nine sections :
"1. Short title and commencement.-- (1) This Act may be called the Kerala High Court Act, 1958.
(2) It shall come into force on such date as the Government may, by notification In the Gazette, appoint.
2. Definition.-- In this Act. "High Court", means the High Court of the State of Kerala.
3. Powers of single Judge.-- The powers of the High Court in relation to the following matters may be exercised by a single Judge provided that the Judge before whom the matter is posted for hearing may adjourn it for being heard and determined by a Bench of two Judges :--
(1) Determining in which of several Courts having jurisdiction a suit shall be heard.
(2) Admission of an appeal in forma pauperis.
(3) Exercise of original jurisdiction under any law for the time being in force.
(4) Exercise of the powers under Section 115 of the Code of Civil Procedure, 1908 and under Section 22 of the Kerala Small Cause Courts Act. 1957.
(5) Any matter of an Interlocutory character in appeals and other proceedings.
(6) Admission of an appeal presented after the expiry of the period allowed by the law of limitation.
(7) Admission of an appeal from the judgment or order of any criminal Court.
(8) Exercise of the power to revise the proceedings of any criminal Court;
Provided that in the exercise of such power a single Judge shall not Impose a sentence of death or imprisonment for life.
(9) Exercise of the powers conferred by Ss. 426 and 498 of the Code of Criminal Procedure, 1898.
(10) Exercise of the powers under --
(i) Section 24 of the Code of Civil Procedure, 1908.
(ii) Section 526 and Section 526A of the Code of Criminal Procedure. 1898;
(iii) Clause (1) of Article 226 of the Constitution of India except where such power relates to the issue of a writ of the nature of habeas corpus; and
(iv) Articles 227 and 228 of the Constitution of India.
(11) Exercise of the power under subsection (2) of Section 19 of the Kerala Civil Courts Act, 1957.
(12) A report under Section 438 of the Code of Criminal procedure. 1898.
(13) An appeal--
(a) from a judgment or order of a criminal Court, except in cases in which the appellant or a person tried with him has been sentenced to death or Imprisonment for life:
Provided that in the exercise of such power of single Judge shall not impose a sentence of death or imprisonment for life;
(b) from an original decree or order in any suit or other proceeding, where the amount or value of the subject matter of the suit or other proceeding does not exceed one lakh rupees;
(c) from an original decree when such appeal relates to costs only;
(d) from an order under Section 104 of the Code of Civil Procedure, 1908, except an order of the kind mentioned in Clause (h) of Sub-section (1) of the said section or in clauses (c), (d) or (j) of Rule 1 of Order XLIII of the First Schedule to the said Code;
(e) from an appellate decree or order;
(f) under Section 79(3) of the Insolvency Act, 1955; and
(g) under Section 476B of the Code of Criminal Procedure, 1898.
4. Powers of a Bench of two Judges.--The powers of the High Court in relation to the following matters may be exercised by a Bench of two Judges, provided that if both Judges agree that the decision involves a question of law they pay order that the matter or question of law be referred to a Full Bench :--
(1) Any matter in respect of which the powers of the High Court can be exercised by a single Judge.
(2) An appeal--
(a) from a decree or order of a civil Court, except those coming under Section 3;
(b) from the Judgment of a criminal Court in which a sentence of death or Imprisonment for life has been passed on the appellant or on a person tried with him.
(3) A reference--
(a) under Section 13 of the Code of Civil Procedure. 1908;
(b) under Section 307, Section 374 or Section 432 of the Code of Criminal Procedure. 1898.
(4) An application under Rule 2 of Order XLV of the First Schedule to the Code of Civil Procedure, 1908.
(5) An application for the exercise of the powers conferred by Section 491 of the Code of Criminal procedure. 1898 or by clause (1) of Article 226 of the Constitution of India where such power relates to the issue of a writ of the nature of habeas corpus.
(6) An appeal from any original Judgment, order or decree passed by a single Judge.
(7) All matters not expressly provided for in this Act or in any other law for the time being in force.
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
(ii) a judgment of a single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate Court.
6. Cases to be heard by Full Bench under direction by Chief Justice.-- Notwithstand-ing anything contained in this Act, the Chief Justice may direct that any matter be heard by a Full Bench.
7. Procedure on reference to Full Bench.--When a question of law is referred to a Full Bench, the Full Bench may finally decide the case or return it with an expression of its opinion upon the question referred for final adjudication by the Bench which referred the question or, in the absence of either or both of the referring Judges, by another Bench.
8. Powers of Vacation Judge.-- (1) During the adjournment of the High Court the Chief Justice shall nominate a single Judge of the High Court for the hearing of all matters which require to be immediately or promptly dealt with and such Judge shall have all the powers of the High Court, except in cases In which such power must be exercised under the provisions of any law more than one Judge.
(2) It shall be competent for the Chief Justice during any such adjournment of the High Court to constitute a Bench of two Judges or a Full Bench for the hearing of any case.
9. Repeal.-- The provisions of the Travancore-Cochin High Court Act, 1125 (V of 1125), in so far as they relate to matters provided in this Act, shall stand repealed."
(Emphasis ours)
7. We will now refer to the two decisions where conflicting views have been expressed on the question of interpretation of Sec. 3. In Bar Council of Kerala v. Thankappan Pillai, 1985 Ker LT 738, the Division Bench construed the scheme of the provisions of Sec. 3 and held that an oral direction given by a single Judge which is endorsed by the Court Officer does not constitute an order of reference Under Section 3. What is postulated under that Section is ajudicial order which has to be in writing and signed by the single Judge. While conceding that the single Judge has the discretion to adjourn a matter Under Section 3 for being heard and determined by a Division Bench, it was held in 1985 Ker LT 738 that the matter must be brought before the Division Bench by means of ajudicial order. Since it was not so brought, the Division Bench directed that the matter be placed before the single Judge for appropriate orders. The Division Bench order in 1985 Ker LT 738 is as under :--
"Kochu Thommen, J.-- This case stood posted before the learned single Judge on 11-1-1985. The Court Officer on that day made the following endorsement on the docket: "Post before a Division Bench on Monday. B/o Sd/-". The matter was later posted before the First Bench on 1-3-1985, on 12-4-1985 and finally on 25-7-1985. The First Bench, however, did not deal with the matter on the met its. Another endorsement was made on the docket by the Court Officer on 25-7-1985: "Post before C XII on 29-7-1985 at the top of list. B/O. Sd/-". The character of the latter endorsement is not quite clear to us, but perhaps it was based on an administrative direction of the learned Chief Justice presumably on the assumption that the case had already been referred by the learned single Judge under Section 3 of the Kerala High Court Act, 1958.
2. This is how this case has come up before us. This case, we notice, has not been referred to a Division Bench in terms of Section 3. The first endorsement made by the Court Officer on 11-1-1985 is not areference order as postulated under Section 3 of the Act. The endorsement merely showg that an oral di-rection to that effect had been given by the learned single Judge. No such oral direction. or an endorsement of the Court Officer evidencing it. Constitutes an order of reference under Section 3. What is postulated under that section is a judicial order which has to be in writing and signed bv the single Judge himself. Section 3 says:
"3. Powers of single Judge.-- The powers of the High Court in relation to the following matters may be exercised by a single Judge, provided that the Judge before whom the matter is posted for hearing may adjourn it for being heard and determined by a Bench of two Judges :--
3. Section 4 of the Act says :
"4. Powers of a bench of two Judges.--The powers of the High Court in relation to the following matters may be exercised by a bench of two Judges.....
(1) Any matter in respect of which the powers of the High Court can be exercised by a single Judge.
......................................."
This section confers power on the Division Bench to hear any matter in respect of which the power of this High Court can be exercised; by a single Judge. A single Judge has indeed the discretion to adjourn any matter specified under Section 3 for being heard and determined by a Division Bench. Although, as a Division Bench, we have the power to hear and determine an Original Petition filed under Article 226 of the Constitution, being one of the matters specified under Section 3, such petition must be brought to us by means of a judicial order signed by the Judge himself as postulated under Section 3. This matter has not been so brought to us.
4. Accordingly, place the Original Petition before the learned single Judge for appropriate orders."
(Emphasis ours)
8. Pursuant to the above order, when the matter was placed before the single Judge, he again placed it before the Chief Justice and, pursuant to the order passed by the Chief Justice, it was placed before another Division Bench. When it was heard by the other Division Bench on 8th August, 1986, a question arose as to whether the interpretation of Sec. 3 by the earlier Division Bench in 1985 Ker LT 738 was proper. The further question was whether a matter placed before a Division Bench pursuant to the order of the Chief Justice, can be sent back by the Division Bench to the single Judge who had adjourned the matter for being heard by a Division Bench. The second Division Bench had some doubts about the correctness of the view expressed by the earlier Division Bench in 1985 Ker LT 738. The matter was, therefore, placed before the Chief Justice for being heard by a Full Bench. Pursuant to this, it was placed before a Full Bench of five learned Judges which decision is reported in 1985 Ker LT 769 : (AIR 1986 Ker 1). Since a prayer has been made before us by the first four learned counsel that the Full Bench decision is required to be reconsidered, we find it necessary to reproduce the said judgment :--
1985 Ker LT 769 : (AIR 1986 Ker 1 (FB) (Paras 1 & 2) "ORDER M.P. Menon, J. - This writ petition has been placed before us with the following order of the Chief Justice, apparently made in exercise of power under Section 6 of the Kerala High Court Act, 1958:--
'There is an apparent conflict between the views expressed by two Division Benches of this Court with respect to the procedure to be followed by a single Judge while adjourning a matter to be heard and determined by a Bench of two Judges under Section 3 of the High "Court Act. The question of law involved in the writ petition also is very important. I, therefore, order that the writ petition as well as the order of reference be posted for hearing before a Full Bench of five Judges."
We have heard counsel on the conflicting views about the scope of Section 3, and this order is intended Lo dispose of the said controversy. The merits of the Original Petition will be considered separately.
2. Section 3 of the Kerala High Court Act empowers a Single Judge to exercise the Court's powers under Article 226(1) of the Constitution, but the section also contains a proviso In the following terms :--
"..... Provided that the Judge before whom the matter is posted for hearing may adjourn it for being heard and determined by a Bench of two Judges."
The aforesaid provision has been construed by one Division Bench (See 1985 Ker LT 738) to mean that a single Judge cannot adjourn a matter for being heard by two Judges except by means of a Judicial order signed by the Judge himself. An oral direction, recorded by the Court Officer by way of an endorsement on the docket, will not be sufficient, according to this view. This is what the bench said :--
"The endorsement merely shows that an oral direction to that effect had been given by the learned single Judge. No such oral direction, or an endorsement of the Court Officer evidencing it, constitutes an order of reference under Section 3. What is postulated under that Section is a judicial order which has to be in writing and signed by the single Judge himself. . . . .Although as a Division Bench we have the power to hear and determine the original Petition filed under Article 226 of the Constitution, being one of the matters specified under Section 3, such petition must be brought to us by means of a Judicial order signed by the Judge himself as postulated under Section 3. This matter has not been so brought to us. Accordingly, place the Original Petition before the learned single Judge for appropriate orders."
3. The view taken by the other Division Bench is that there is nothing in the language of Section 4 to indicate that there should be an order in writing, that such an order should be a judicial one and that it should be signed by the Judge concerned. After referring to the practice of the Court where Division Benches have been acting on the strength of similar endorsements made on dockets, the learned Judges of the Bench also raised the question whether "it is open to a Division Bench empowered to dispose of the matter under Section 4 of the High Court Act, to refer the case back to the single Judge who had adjourned the case . .
4. Section 9 of the Kerala High Court Act repeals only those provisions of the T, C. High Court Act, 1125 which relate to matters covered by the former. Many of the provisions of the T. C. Act are thus still intact, and operative. It is therefore necessary to notice that under Section 16 of that Act, the administrative control of the High Court is vested in the Chief Justice and that under Section 30, it is in his power to "regulate the conduct of the business in the High Court".
5. As for Section 3 of the Kerala Act, the first thing to be noticed is that it makes no mention of an 'order of reference', in writing or otherwise. The words "refer", "order", "signed" etc. are significantly absent. Literally construed, the requirements of the proviso will be satisfied if a single Judge before whom a writ petition comes up for hearing orally directs that the matter be adjourned for being heard and determined by bench of two Judges, He is not required to give reasons or record them. In fact, he is not even "hearing" the matter: the hearing and determination are left to a bench of two Judges when once the single Judge exercises his power of adjournment, There is also no scope for a judicial order in the sense that rights of parties are being settled. In our view, all that the section requires is that the single Judge should indicate in some form in which the parties and the Registry of the Court could come to know that he is not hearing the matter, but is leaving it to a bench of two Judges. Invariably the indication is given in the presence of counsel: and when the Court Officer makes an endorsement, the Registry also comes to know of the nature of the adjournment. A judicial order in writing and signed by the Judge is evidently not a requirement of the express language of the section.
6. Even if there is doubt about the above construction, we think the practice of the Court should also influence and probably conclude the situation. True it is that single Judges often prepare detailed 'reference orders and sign them, when circumstances warrant it; there is no prohibition in the statute against such a course. It Is however equally true that in very many situations such elaborate or reasoned orders are not written or signed. When the same question is raised in a number of cases and some of them are already before a Division Bench, it is usual for counsel on both sides to inform a single Judge about the situation when other similar petitions are posted before him, and for the learned Judge to orally direct that they too be posted along with the others. It will be a waste of time and energy to insist on a separate and reasoned order of reference on all such occasions. Division Benches of this Court have not been insisting on such empty formalities. The present Original Petition itself, we find, had earlier been posted before two or three different Division Benches and their Lordships of those benches had taken no objection at all to the Court Officer's endorsement, presumably because they were all aware of the practice of the Court.
7. We accordingly hold that an oral direction of a single Judge in the presence of counsel, followed by an appropriate endorsement by the Court Officer, will satisfy the requirement of Section 3 in the matter of adjourning a case for being heard by a Division Bench, though in appropriate cases, a reasoned order in writing and signed by the Judge will be desirable.
8. We also feel that it will be proper for any bench of the Court not to decline to hear a matter placed before it under the administrative orders of the Chief Justice except perhaps on those rare occasions when the Judges constituting the bench feel embarrassed in taking it up either because of the nature of the cause or of the parties involved or counsel appearing, or other similar reasons.
9. Clearly again when a single Judge adjourns a matter for being heard by a bench of two Judges, the bench before which the adjourned matter is placed is not to function as an appellate Court even in respect of the limited question whether the adjournment has been properly made or not. The distinction between the powers of a bench of two Judges under Section 5 of the Act on the one hand, and under Section 4(1) read with Section 3, on the other, cannot be overlooked. Where a bench of two Judges feel that a matter has not been placed before it as required by law, the proper course would be to return it to the Registry, instead of passing a judicial order in a matter which in its own opinion, is not before it. A bench to which a matter is adjourned by a single Judge under Section 3 is not a superior Court clothed with power to issue directions, expressly or impliedly, to the single Judge as to how or in what manner he should exercise his power of adjournment.
10. We would accordingly answer the question raised by the second Division Bench by indicating that it will not be open to a bench of two Judges "to refer the case back to a single Judge" once that Judge has exercised his power of adjournment under Section 3."
(Emphasis ours)
9. It will be evident from the above that in para 5 of the judgment, the Full Bench did not agree with the reasoning of the Division Bench. Whereas the Division Bench had held that the order of adjournment is a judicial order which has to be in writing and signed by the Judge himself, the Full Bench came to the conclusion that an oral direction was enough and it is neither required to contain reasons or record them or sign it. It was held that the single Judge, in fact, was not hearing the matter when he adjourned it to a Division Bench. There was, therefore, no scope for a Judicial order in the sense that rights of the parties were being settled. However, the Full Bench observed in para 7 that "in appropriate cases, a reasoned order In writing and signed by the Judge will be desirable." It is here, that, the counsel before us pointed out lack of consistency and uniformity on the two aspects mentioned above: (a) stating the grounds for making a reference and (b) framing the question of law and slating the same in the order of reference.
10. We think, it will be convenient to answer questions 1 and 2 together. What is contended before us by S/Shri Damodaran, Advocate General, Rajendran, Santhalingam and Mathew is that, the word 'adjourn' appearing in Sec. 3 must be given a narrow and restricted meaning namely, 'refer' for being heard and determined by a Bench of two Judges. An order of reference must contain brief reasons so that the litigant is entitled to know why his matter has been referred by a Single Judge to a Division Bench. His lawyer should be able to tell him as to what necessitated a reference to a Division Bench. "Adjournment" is ajudicial order, though a discretionary one. It can never be suggested that it is a mere administrative order. The real controversy before us is on the requirement of staling the grounds and framing the question in the order of reference to a Division Bench.
11. The scheme of Sec. 3 would show that a single Judge has got Jurisdiction to decide the matters enumerated therein. It is only in certain exceptional situations that a single Judge can refuse to hear and decide the matter which is placed before him. In such cases, the Judge refuses to exercise the jurisdiction which is legally vested in him. Indeed, the Judge has a duty to hear and decide the matter except in circumstances which justify the case being transferred to another Judge or referred to a larger Bench. The concepl of jurisdiction is well known. Jurisdiction means authority to decide. Whenever a judicial tribunal is empowered or required to enquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certio-rari but are binding until reversed on appeal. Where a Court has jurisdiction to entertain an application, it does not lose its jurisdiction by coming to a wrong conclusion, whether it was wrong in law or in fact. These observations are to be found in Section A. de Smith's Judicial Review of Administrative Action. Second Edition, Page 96.
12. A perusal of Sec. 3 would show that the powers of the High Court in relation to the matters enumerated tn that section may be exercised by a single Judge. The section mentions 13 such categories with several sub-categories thereunder. However, the proviso contained in the main part of the section is to the effect that a Judge before whom the matter is posted for hearing may adjourn it for being heard and determined by a Bench of two Judges. It is well settled that a proviso to a statutory provision is added to a principle clause primarily with the object of taking out of the scope of that principal clause, what is included in It, and what the Legislature desires should be excluded. This is well settled in view of the judgment of the Apex Court in Sales Tax Officer v. Hanuman Prasad, AIR 1967 SC 565.
13. On the question as to what is the normal function of a proviso in a statutory enactment, we find it useful to quote the following two passages from the treatise on Principles of Statutory Interpretation, Seventh Edition, by Justice G. P. Singh. The first passage is at page 155-156 under the heading "Proviso" with sub-heading (a) "its real nature" which reads as under :
"PROVISO
(a) Its real nature.
The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As stated by Lush, J., "When one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have Included the subject-matter of the proviso". In the words of Lord Macmillan : "The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case." The proviso may, as Lord Macnaghten laid down, be "a qualification of the preceding enactment which is expressed in terms too general to be quite accurate." The general rule has been stated by Hidayatullah, J. in the following words : "As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule". And in the words of Kapur. J. "The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment." Further a proviso is not normally construed as nullifying the enactment or as taking away completely a right conferred by the enactment. As a consequence of the aforesaid function of a true proviso certain rules follow."
The second passage is at page 159 under sub-heading "(c)" as under :--
"(c) Construed in relation to the section or sections to which it is appended :
The language of a proviso even if general is normally to be construed in relation to the subject-matter covered by the section to which the proviso is appended. In other words normally a proviso does not travel beyond the provisions to which it is a proviso. "It is a cardinal rule of interpretation" observed Bhagwati, J., "that a proviso io a particular provision of a statute only em-braces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other."
(Emphasis ours)
14. In Francis Bennlon's Statutory Interpretation, (1984) at page 570 the purpose of a 'proviso' has been explained in the following words :
"268. Operative components of Act : the proviso.
A proviso is a formula beginning 'Provided that.....', which is placed at the end of a section or sub-section of an Act, or of a paragraph or sub-paragraph of a Schedule, and the intention of which is to narrow the effect of the preceding words.
COMMENTARY The proviso is an ancient verbal formula. (For early reference to provisos in statutes see Hatsell Parliamentary Precedents 3.46 (1575); 3.114 (1660). It enables a general statement to be made as a clear proposition, any necessary qualifications being kept out of it and relegated to the proviso. This aids understanding. The general statement is sometimes called the 'purview'. (See, e.g. A-G v. Chelsea Waterworks, (1731) Fitzg 195). This is based on a misconception however, for the purview is truly the enacting formula. (See Section 280 of this Code)."
15. On the necessity of giving reasons while exercising any judicial power, we may refer to Justice K. K. Mathew's "Three Lectures", (1883). It has been observed at page 13 as follows :--
"According to Wechsler the main constituent of judicial process is precisely that it must be generally principled, resting with respect to every step that is involved on an analysis and reason, transcending the immediate result that is achieved and it is the duty of Court to judge by neutral principles addressed to all the issues. In his view the virtue or demerit of a judgment turns entirely on the reasons that support and their adequacy to maintain any choice of value it decrees."
(Emphasis ours)
16. In R. J. Walker's The English Legal System", fifth edition at pages 409 and 410 it has been observed under the heading 'Appeal against the exercise of a discretion' as under:--
"3. Appeal against the exercise of a discretion.
In many circumstances the judge has a discretion as to whether, and in what manner, to exercise his powers. Commonly encountered instances of judicial discretion are the discretion as to costs and the discretion as to the mode of trial, in particular in relation to the question of whether or not to order jury trial. However, no discretion is absolute and there mav be a successful appeal to the Court of Appeal in relation to the exercise of a judicial discretion if the appellant can show that the Judge exercised his discretion under a mistake of law, or under a misapprehension as to the facts, or that he took into account irrelevant matters or gave insufficient weight, or too much weight, to certain factors or that he failed to exercise his discretion at all. If the Judge gives no reasons, or insufficient reasons for the exercise of his discretion, the Court may infer that he has gone wrong in one respect or another. The burden of proof is on the party who alleges that the discretion was wrongly exercised and, in any event, the Court of Appeal will only allow the appeal if satisfied that the Judge's conclusion is one which involves injustice or was clearly wrong."
(Emphasis ours) The above observations are based on the decisions in (i) Evans v. Bartlam, 1937 AC 473 : 1937 All ER 646. (ii) Ward v. James, 1966 QB 273 : (1965) 1 All ER 563 and (iii) Birkett v. James. 1976 All ER 417, mentioned at the foot note. We do not wish to burden this Judgment with the details of these cases. The only point to be emphasised is that even for a discretionary order, reasons must be indicated, may be briefly.
17. The concept 'power and jurisdiction' has been explained in Foulkes Administrative Law. Seventh edition, at page 188 in the following words :--
"Power and jurisdiction.
Jurisdiction can be equated with power, but the word is used in preference to power in respect of certain bodies which may perhaps be identified as those which decide disputes, or may be said to 'hear and determine' an issue, or which act in some sense Judicially."
18. In Law Lexicon, 1997 edition, page 828 the words 'hear and determine' have been explained as under :--
"HEAR AND DETERMINE. Authority to hear and determine a cause is jurisdiction to try and decide all the questions involved in the controversy.
The power to hear and determine is an essential ingredient of original jurisdiction, and the authority to examine and correct errors is the distinguishing characteristic of appellate power. To hear and determine a criminal case is to proceed to try the case and pass sentence.
The words "hear and determine" refer to Judicial determination after the hearing and weighing of testimony on both sides, and do not generally include an ex parte proceeding."
19. In Stroud's Judicial Dictionary of Words and Phrases, 4th edition, Volume I, page 65, while defining the word "adjourn" it has been emphasised that the word "adjourn" must be construed with reference to the object of the context and with reference to the object of the enquiry. In Prem's Judicial Dictionary, Volume IV, at page 1400, the word "reference" has been explained as under :--
ference has been stated to mean the sending of a pending case, for some question therein, by the Court in which it is pending to a private person or some other tribunal to hear and determine the cause of the ques-
tion."
(Emphasis ours) In Words and Phrases, Permanent Volume 36A, at page 176, the word "reference" has been explained as an act of referring or state of being referred.
"At common law a reference was the sending of any matter by the Court of chancery to a master, or by a law Court to a prothonotary to examine it."
"A "reference" is the sending of a pending cause, or some question therein, by the Court in which it is pending, to a private person to hear and determine it provisionally or to take evidence therein and report the same to the Court with or without opinion thereon."
In Garner's Administrative Law. Seventh Edition, page 10, an observation is made to the effect that when a Judge exercises a judicial function, he appreciates the facts of a case, discusses the legal position and applies the law to the facts of the case.
20. In view of the above, it is contended before us that if an adjournment is ajudiclal order, it must contain reasons. There are some orders of reference where the only order is "adjourned to a Division Bench". There may be cases where there is a conflict of two or more decisions of single Judges of this Court with no decision ofthe Division Bench or of the Apex Court in the field. This would certainly justify a reference by a single Judge to a Division Bench. Secondly, there may be an Important question of law of general or public importance affecting a large number of cases, as was the case referred to a Division Bench of this Court regarding the grant of Plus-Two-courses, (11th and 12th Standard), for the academic year 2000-2001. There were nearly 200 petitions involving a large number of students, parents, teachers, managements and the Issue had threatened to become a law and order problem in the State. Thirdly, there may be a case where a new Legislation has been enacted and there is no parallel to it anywhere else in the country and the challenge raises questions of law which did not arise for determination before the Apex Court or this Court. In this category may fall the OMBUDSMAN'S case pursuant to the insertion of Section 271-G in the Kerala Panchayat Raj Act. 1994 by recent amendment. Fourthly, if a question of law is being consid-ered by a Division Bench, a case involving the same or similar question of law may be referred to the Division Bench for being heard along with the earlier matter. In this background let us consider some of the decisions which have a bearing on the issue,
21. In Mahadeolal Kanodia v. The Administrator General of West Bengal, AIR 1960 SC 936 the Apex Court considered the question of precedents and the need of making a reference to a Larger Bench was emphasised in the interest of certainty of law which is an essential quality In administration of justice. The relevant observations are to be found in paras 19 and 20 as under :--
"(19) Before we part with this appeal, however, it is our duty to refer to one incidental matter. We have noticed with some regret that when the earlier decision of two judges of the same High Court in Deorajln's case, 58 Cal WN 64 : AIR 1954 Cal 119, was cited before the learned Judges who heard the present appeal they took on themselves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring the question to a larger Bench. Judicial decorum no less than legal propriety forms the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the qualify of certainty. That qualify would totally disap-pear if judges of co-ordinate jurisdiction in a High Court start overruling one another's decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another single Judge on a ques-tion of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all Courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judg-ments of their own High Court.
(20) As far as we are aware it is the uniform practice In all the High Courts in India that if one Division Bench differs from an earlier view on a question of law of another Division Bench, a reference is made to a larger Bench.
In Calcutta High Court a rule to this effect has been in existence since 1867. It is unfor tunate that the attention of the learned Judges was not drawn in the present case to that rule. But quite apart from any rule, consid erations of Judicial propriety and decorum ought never to be ignored by Courts in such matters."
(Emphasis ours)
22. In Jaswant Sugar Mills Ltd. v. Lakshmi Chand, AIR 1963 SC 677, the words 'determination' and 'order' appearing in Article 136 of the Constitution were construed by the Apex Court. It was held that a judicial decision always postulates the existence of a duty on the authority to act judicially. The observations are made in the light of a distinction between a judiclal decision and an administrative order. The judicial process involves the application of a body of rules or principles by the technique of a particular psychological method as stated in Robson's Justice and Administrative Law, Pg. 33. Relying upon the observations in para 11 of this judgment, it is contended before us that an adjournment is a judicial order since it involves the determination of a ground. Determination of a 'sufficient cause for adjournment' undoubtedly involves a judicial process of application of one's mind to the facts of the case. It cannot be automatic. It cannot be taken for granted.
23. In Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel, AIR 1968 SC 372, the question of judicial precedents in the light of decisions or co-ordinate and superior authority having binding nature was considered. It was held that when it appears to a single Judge or a Division Bench that there are conflicting decisions of the same Court, or there are decisions of other High Courts in India which are strongly persuasive and take a view different from the view which prevails In his or their High Court, or that a question of law of importance arises in the trial of a case, the Judge or the Bench passes an order that the papers be placed before the Chief Justice of the High Court with a request to form a special or Full Bench to hear and dispose of the case or the questions raised in the case. The above observation would show that the Judge concerned should make a reference briefly indicating reasons for his views which necessitated that the matter be referred to a larger Bench.
24. On the first two questions, we may now refer to the decisions of some High Courts. We must first refer to a decision of the Full Bench of five learned Judges of this Court, Jagannadha Rao, C. J., K. S. Paripoornan, Varghese Kalliath, K. John Mathew and M. M. Pareed Pillay, JJ. in K.C. Das v. State of Kerala, (1992) 2 Ker LT 358 (FB). The question arose as regards the maintainability of an appeal Under Section 5(1) of the Act, against an interlocutory order in a writ petition while the petition was pending and if so, the circumstances under which or the types of cases in which such an appeal would He. The question was referred to a Bench of five Judges by a Full Bench of three Judges. There was a conflict in earlier decisions. The Larger Bench referred to the history of the Act with reference to the Travancore-Cochin High Court Act, 1125 (Malayalam Year) and the Letters Patent of the Madras High Court. Reference was also made to the Kerala High Court Bill, 1957 which was piloted by no less a person than, Sri V. R. Krishna Iyer, who was then the Law Minister of Kerala. The main controversy was regarding the interpretation of the words, "order , "Interlocutory or intermediate order", "final order" and "judgment". The contention that word "order" appearing in Sec. 5(i) of the Act should be construed liberally so as to include any interlocutory order as in Article 136 of the Constitution was rejected. The conclusions in the judgment of Jagannadha Rao, C. J. (as his Lordship then was), are to be found in Para 46 of the judgment which are as under :
"46. We are of the view that the order appealed against in State of Kerala v. Thankamma, 1968 Ker LT 390 (FB) under Section 5(1) 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 Ker LT 644 against orders as going to the 'root' are rather too wide. So far as the decision in Mohammed Haji v. Ayyamma, 1976 Ker LT 326 (FB) is concerned, it related to Section 5(iii) and has no relevance. The decision of the Full Bench in State of Kerala v. Sudarsan Babu, 1983 Ker LT 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 Section 5(i) takes its colour from the word 'judgment' in Section 5(i). We also do not agree, with great respect, with the view in State of Kerala v. Krishnankutty, 1985 Ker LT 201 : (AIR 1985 Ker 144) holding that 'order' in Section 5(1) is in the nature of a 'final order'. We also do not agree with the obiter observations in Thekkargil. Damodaran v. Sankaran, 1985 Ker LT 153 : (AIR 1985 Ker 134) in so far as they related to Section 5(1), and we are not concerned with the conclusions therein relating to Section 5(ii).
Conclusion : (1) The word 'order' in Section 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 aside the same in every case. There is difference between the question 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 Article 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 ofcourse 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."
(Emphasis ours)
25. In the above case of K.C. Das. (1992 (2) Ker LT 358 (FB)). K. Section Paripoornan, J. (as his Lordship then was) gave a dissenting Judgment and came to the conclusion in para 56 as under :
"56. Broadly based on the above public policy and also in public interest, I see no reason to depart from the view taken by the Full Bench of this Court in State of Kerala v. Sudarsan Babu, 1983 Ker LT 765 and two Division Benches in Damodaran v. Sankaran, 1985 Ker LT 153 : (AIR 1985 Ker 134) and State of Kerala v. Krishnankutty, 1985 Ker LT 201 : (AIR 1985 Ker 144). I hold that the writ appeals, in the instant cases, are not maintainable."
Varghese Kalliath, J. gave a judgment concurring with the majority judgment rendered by Jagannadha Rao, C. J. In view of the opinion of the majority of 4 : 1, it was held that Writ Appeals were maintainable.
26. In Sathyanarayana v. State of Madras, AIR 1957 AP 1027, a Full Bench consisting of Subba Rao, C. J., Mohd. Ahmed Ansart and Jaganmohan Reddy, JJ., dealt with a situation where a single Judge hearing a writ petition referred it to a Division Bench because of conflicting views on the question of issuance of permits by the Regional Transport Authority. The conflict was in two Division Bench decisions. Order of reference was made by Subba Rao, C. J. (as his Lordship then was), which is reproduced in the reported decision. That was also a case where the single Judge had referred the matter to a Division Bench by a detailed order. This was followed by a brief order of reference by the Division Bench framing the question of law for being determined by the Full Bench, which resulted In the matter being heard and decided by Full Bench. Reliance on this authority has been placed, in support of the contention that the order of reference must be a speaking order with brief reasons and the question of law must be framed and stated.
27. In Balwantrai K. Shukla v. Dalwadi Dahya Chhagan, AIR 1971 Guj 118, the procedure for a single Judge making a reference to a Division Bench has been discussed in the light of Rule 5(1) of the Bombay High CourtAppellate Side Rules, 1960. Under the said Rules, a single Judge is empowered to refer the matter or any question arising in the matter before him, to a Division Bench provided he is satisfied that the matter or any question raised in the matter Is such that it requires to be decided by a Division Bench of two Judges. The single Judge must himself come to a conclusion that the matter or any question raised in the matter is such that it requires to be decided by a Division Bench. He has to record a prima facie opinion that the matter or the question requires to be decided by a Division Bench. The relevant observations are to be found in para 15 at page 124.
28. In Shlvadeviamma v. Sumanji, AIR 1973 Mysore 296, a Full Bench considered the question about the desirability of an order of reference containing reasons in the light of the conflict of Division Bench decisions Under Section 7 of the Mysore High Court Act, 1962. It was held that though the desirability of formulation of such reasoned criticism, or offering an alternative to the view the correctness of which has been doubted by the referring Bench, cannot be doubted, there is no legal obligation Under Section 7(1) so as to hold that on the ground that no reasons are stated in support of the order of reference, it is not open to a Full Bench to decline to answer the questions referred to it by a Division Bench Under Section 7(1) of the Mysore High Court Act, 1961 and sent it back to the referring Bench without answering the questions referred to it and to direct the referring Bench to state reasons in support of the order of reference.
29. In Smt. Nirmala Birla v. Wealth Tax Officer, AIR 1975 Cal 348, Sabyasachl Mukharji, J. (as his Lordship then was) held that under Rule 2 of Chapter V of the Original Side Rules of the Calcutta High Court, if it appears to the single Judge that the matter can be more advantageously heard by a Bench of two or morejudges, he has to make a report to that effect to the Chief Justice, who can thereafter make such order as he thinks fit. On the construction of Rule 2 of Chapter V It is clear that a single Judge has to make a report to that effect to the Chief Justice who shall make such order thereon as he deems fit.
30. In Kallara Sukumaran v. Union of India, (1987) 1 Ker LT 226 : (AIR 1987 Ker 212), a Division Bench of this Court headed by Malimath, C. J. considered the scope of Sec. 3 of the Act under which the single Judge is empowered to adjourn the case for being heard and determined by a bench of two Judges. Under Section 4, on the other hand, a Division Bench can refer the entire case or a question of law to a Full Bench. The observations in paras 14 and 18 of the judgment at pages 231 and 238 respectively, clearly show that words "adjourn the case" have been understood to mean to "refer the case".
31. In our view, a case being Important, by Itself, cannot be a ground for referring the matter to a Division Bench. In the Bombay High Court, when there were serious allegations made against a Chief Minister in office, in the matter of irregularities in distribution of cement, a single Judge B. Lentin. J. heard the matter. There was an intra Court appeal to a Division Bench against his order. Though the case was very important one, a single Judge heard and decided the matter. It resulted in the resignation of the Chief Minister. The order of admission of the petition passed by a single Judge in Padmakar Balkrishna Samant v. State of Maharashtra is reported at AIR 1981 Bombay 422.
32. A perusal of the above decisions makes it clear that, normally, an adjournment simpliciter is adjourning to one's own forum or a similar forum. But, judged from its setting, the word "adjourn" appearing in Section 3 of the Act is obviously used in a different context. It is adjournment to a different and larger forum. The case before the single Judge is closed and that forum including any other single Judge is no longer available to the litigant. Indeed, no single Judge can hear that case once it is referred to a Division Bench for being heard and decided on merits.
33. In the Travancore Cochin High Court Act, 1125 the powers of the single Judge were enumerated In Section 20 which reads as under :
"Section 20. A single Judge of the High Court is empowered--
(1) to call for information from the subordinate Courts with a view to superintendent their working and to correct errors of procedure or practice;
(2) to revise calendars and examine the returns in criminal cases submitted by the subordinate Courts;
(3) to examine the returns submitted by the civil Courts;
(4) to hear and decide--
(A) every application--
(i) for determining in which of several Courts having jurisdiction a suit shall be heard;
(ii) for the admission of an appeal presented after the expiry of the period allowed by the laws of limitation;
(iii) for the admission of an appeal in forma pauperis.
(iv) under Section 115 of the Code of Civil Procedure, 1908;
(v) of an interlocutory character in appeals and other matters pending in the High Court;
Provided that a single Judge shall not have the power to dispose of an application to implead the representative of a deceased appellant or respondent, if it is opposed, in which case the application shall be heard and decided by the Bench competent to hear the case.
(vi) for the exercise of the High Court of its power to revise the proceedings of any criminal Court;
Provided that a single Judge shall not have the power to set aside or modify any order of acquittal or enhance any sentence passed by any criminal Court;
(vii) for the exercise of the powers conferred by Sections 426 and 498 of the Code of Criminal Procedure, 1898;
(viii)(a) for the transfer of any suit, appeal or other proceeding, or proceedings in the execution of a decree, from one of the civil Courts subordinate to the High Court to another subordinate civil Court competent to try and dispose of the same or to the High Court;
(b) for the re-transfer of any suit, appeal or other proceeding or proceedings in execution of a decree from the High Court to one of the civil Courts subordinate to the High Court and competent to try and dispose of the same;
(ix) (a) for the transfer of any enquiry, trial or other proceeding, from one of the criminal Courts subordinate to the High Court to another subordinate criminal Court competent to enquire into or try and dispose of the same, or to the High Court;
(b) for the re-transfer of any enquiry, trial or other proceeding, from the High Court to one of the criminal Courts subordinate to the High Court and competent to enquiry into or try and dispose of the same; and
(x) for the exercise of the powers conferred by clause (1) of Article 226 of the Constitution of India read with Article 238 thereof;
(B) every reference by a criminal Court for the revision of proceedings of a subordinate criminal Court provided that a single Judge shall not have the power to set aside or modify any order of acquittal or to enhance any sentence passed by any criminal Court;
(C) every appeal valued at one thousand rupees or less from an appellate decree and every appeal from an appellate order where the subject-matter of the original suit is valued at one thousand rupees or less :
Provided always that it shall be lawful for such Judge to refer any such applications appeal for the decision of a Division Bench of two Judges or of a Full Bench:
(5) to withdraw and to try and decide any suit or other proceeding pending in any civil Court subordinate to the High Court or to transfer the same to any other civil Court competent to try and dispose of the same or to re-transfer the same to the Court from which it was withdrawn; and (6) to withdraw, Inquire into, try and decide any inquiry trial or proceeding pending in any criminal Court subordinate to the High Court, or to transfer the same to any other criminal Court competent to inquire into or to try and dispose of the same or to re-transfer the same to the Court from which it was withdrawn."
(Emphasis ours) In the proviso after Section 20(4)(C), the words used are "to refer any such application or appeal for the decision of a Division Bench of two Judges or of a Full Bench". To that extent, there is a departure from the provisions of Section 20 of the Travancore Cochin High Court Act, when the Kerala High Court Act was enacted. In the Kerala High Court Act, Section 3 uses the words "adjourn itfor being heard and determined by a Bench of two Judges". Section 4 uses the words, "matter or question of law be referred to a Full Bench". While S, 3 deals with the powers of single Judge, Sec. 4 deals with the powers of a Bench of two Judges.
34. S/Shri Giri, Razaak, Sohan and Jose did not dispute the proposition that the order of adjournment under Section 3 is a judicial order. They agree that it should be signed by the Judge. To that extent, they support the ratio of the Division Bench decision In 1985 Ker LT 738 and do not support the decision of the Full Bench in 1985 Ker LT 769 : (AIR 1985 Ker 1 (FB)). However, the limited reservation they have, is on the need for stating reasons in such a judicial order.
35. We may make a brief reference to the provisions in certain enactments where a subordinate Court or Tribunal makes a reference to the High Court. Under Section 113 of the Code of Civil Procedure, a Court is required to state the case and refer it for the opinion of the High Court. The statement of the case must contain its opinion and the reasons therefor, while referring the case for the opinion of the High Court. Similar is the provision in Section 395 of Code of Criminal Procedure. The subordinate Court is required to state the case setting out its opinion and the reasons therefor, and refer the same for the decision of the High Court. Under Section 256 of the Income-tax Act, 1961, when the Income-tax Appellate Tribunal makes a reference to the High Court, it is required to draw up a statement of the case and refer any question of law to the High Court. Under Section 21 of the Chartered Accountants Act, 1949, similar provision is contained in Sub-clause (4) and (5), which contemplates a reference being made to the High Court.
36. We may now make a brief reference to the Act/Rules regulating this issue in some other High Courts. As far as the Madhya Pradesh High Court is concerned, matters which a single Judge can hear and decide have been enumerated in the Madhya Pradesh High Court Rules. However, Rule 9 makes it clear that, a Judge sitting alone may refer any proceeding before him to the Chief Justice with a recommendation that It be placed before a Bench of two Judges when it involves a question of law of difficulty or importance. Rule 9(2) provides thata Judge sitting alone shall refer any proceeding other than an original proceeding, including a suit pending before him to the Chief Justice with a recommendation that it be placed before a Bench of two Judges -- (a) when it involves a substantial question of law as to the interpretation of the Government of India Act or of any order in Council made thereunder or the Constitution or of any order of the President made thereunder; (b) if he considers that the decision in the proceeding involves reconsideration of a decision of a Judge sitting alone in the Central Provinces Law Reports, the Nagpur Law Reports or the Indian Law Reports, Nagpur Series. Rule 9(3) says that in proceedings of the nature referred to in Rule 9(1), the referring Judge may refer a stated question or questions or may ask that the proceedings be heard and decided by the Bench to which it is referred. If he refers a stated question or questions, he shall dispose of the proceedings in accordance with the decision of the Bench on the question or questions referred to it. Rule 9(4) requires that in cases of the nature referred to in clause (a) of Rule 9(2), the proceedings shall be heard and decided by the Bench to which it is referred. Rule 10 requires a reference being made by a single Judge where he finds that a decision of two or more Judges requires reconsideration, he must refer it to the Chief Justice with a recommendation that it should be placed before a Full Bench for a decision on a stated question or questions. Rule 11 deals with a situation where the Chief Justice can nominate one or more of the other Judges to deal with the matter. Rule 12 finds that the decision involves a reconsideration of a decision of two or more Judges. They are required to refer the matter to the Chief Justice by stating the question or questions or may require that the proceedings be heard by a Bench to which it is referred.
37. Since the Madhya Pradesh High Court Rules lay down elaborate guidelines, we find it convenient to reproduce Rules 9 to 12 which are as under :
"9. (1) A Judge sitting alone may refer any proceeding pending before him to the Chief Justice with a recommendation that it be placed before a Bench of two Judges when it involves a question of law of difficulty or importance.
(2) A Judge sitting alone shall refer any proceeding other than an original proceeding Including a suit pending before him to the Chief Justice with a recommendation that it be placed before a Bench of two Judges :--
(a) When it involves a substantial question of law as to the interpretation of the Government of India Act or of any order In Council made thereunder or the Constitution or of any order of the President made thereunder :
(b) if he considers that the decision in the proceeding involves reconsideration of a decision of a Judge sitting alone in the Central Provinces Law Reports, the Nagpur Law Reports or the Indian Law Reports, Nagpur Series.
(3) In proceedings of the nature referred to in sub-rule (1) of this rule, the referring Judge may refer a stated question or questions or may ask that the proceedings be heard and decided by the Bench to which it is referred. If he refers a stated question or questions he shall dispose of the proceedings in accordance with the decision of the Bench on the question or questions referred to it.
(4) In cases of the nature referred to in clause (a) of sub-rule (2) of this rule, the proceedings shall be heard and decided by the Bench to which it is referred.
(5) In proceedings of the nature referred to in clause (b) of sub-rule (2) of this rule, the referring Judge shall refer a stated question or questions and shall dispose of the proceedings in accordance with the decision of the Bench on the question or questions referred to it."
"10. If a Judge sitting alone considers that the decision of the proceedings pending before him involves reconsideration of a decision of two or more Judges he may refer it to the Chief Justice with a recommendation that it be placed before a full Bench for a decision on a stated question or questions. The referring Judge shall dispose of the proceedings in accordance with the decision of the Bench on the question or questions referred to it".
"11. When any appeal or civil matter heard by a Bench of two Judges, the Judges composing the Bench differ on a point of law and state the point on which they differ, the proceedings shall be placed before Chief Justice for the purpose of nominating one or more of the other Judges to deal with the matter."
"12. If a Bench of two Judges considers that the decision of the proceedings pending before them involves reconsideration of a decision of two or more Judges they may refer the matters to the Chief Justice with a recommendation that it be placed before a Full Bench. The referring Judges may refer a stated question or questions or may ask that the proceeding be heard and decided by the Bench in which it is referred. If the referring Judges refer a stated question or questions, they shall dispose of the proceeding In accordance with the decision of the Full Bench on the question or questions referred to it."
38. Chapter V of the Allahabad High Court Rules. 1952 deals with jurisdiction of Judges sitting alone or in Division Benches. Rule 2 of Chapter V therein deals with jurisdiction of a single Judge. The proviso to Rule 2 of Chapter V reads as under :
"Provided that--
(a) the Chief Justice may direct that any case or class of cases which may be heard by a Judge sitting alone shall be heard by a Bench of two or more Judges or that any case or class of cases which may be heard by a Bench of two or more Judges, by a Judge sitting alone;
(b) a Judge may, if he thinks fit, refer a case which may be heard by a Judge sitting alone or any question of law arising therein for decision to a larger Bench; and
(c) a Judge before whom any proceeding under the Indian Trusts Act, 1882, the Companies Act, 1956, or the Patents and Designs Act. 1911, is pending may with the sanction of the Chief Justice, obtain the assistance of one or more other Judges for the hearing and determination of such proceeding or of any question or questions arising therein."
39. In the Bombay High Court (Original Side) Rules, 1980 Rule 28 contemplates report being made to the Chief Justice where a single Judge, either on the application of a party or otherwise, thinks that the suit or matter can be more advantageously heard by a Bench of two or more Judges. Similar is the position in the Bombay High Court (Appellate Side) Rules. In Chapter I Rule 7 contains a similar provision.
40. In the Calcutta High Court Rules, Chapter II contains provisions regarding "Constitution of the Benches and Powers of the Benches and of the Registrar". Rule 1 of Chapter II reads as under :--
"1. A Division Bench for the hearing of Appeals from Decrees or Orders of the Subordinate Civil Courts shall consist of two or more Judges as the Chief Justice may think fit:
(i) Provided that it shall be competent for one Judge to hear Appeals and Applications in all matters specified in the subjoined Schedule except where such Appeals. Applications or Matters involve a substantial question of law as to the interpretation of the Constitution of India. He may, however, send back any particular case he thinks fit to a Division Bench taking such cases for disposal.
Where at any stage of the hearing of an Appeal, Application or other Matter it appears to the Judge that it involves a substantial question of law as to the interpretation of the Constitution of India he shall send the Appeal, Application or other matter to the Division Bench taking such cases for disposal.
(ii) Provided also that, on the requisition of any Division Bench, or whenever he thinks fit, the Chief Justice may appoint a Special Division Bench, to consist of three or more Judges, for the hearing of any particular Appeal, or any particular question of law arising in an appeal, or of any other matter."
41. The Madras High Court Appellate Side Rules contain a similar provision as in the Kerala High Court Act. In the Madras High Court Appellate Side Rules, Order I Rule 1 reads as under :
"1. Except as otherwise provided, the following matters may be heard and determined by a single Judge.
Provided that the Judge before whom the matter is posted for hearing may at any time adjourn it for hearing and determination by a Bench of two Judges."
42. In the Punjab High Court Rules. Part B Rule 1 deals with classes of cases which shall ordinarily be heard and disposed of by a Judge sitting alone. The proviso at the end of the Rule 1 reads as under :
"Provided that --
(a) a Judge may, if he thinks fit, refer any matter mentioned in any of the clauses of this rule other than clauses (x), (xviii) or (xx) and with the sanction of the Chief Justice, any matter mentioned in clauses (xvii) and (xx) to a Division Bench of two Judges.
(b) a Judge before whom any proceeding mentioned in clause (xviii) is pending, may, with the sanction of the Chief Justice, obtain the assistance of any other Judge or Judges for the hearing and determination of such proceeding or of any question or questions arising therein."
43. A conspectus of the above discussion would lead to the following conclusions :
(i) When a single Judge adjourns the case for being heard and determined by a Bench of two Judges Under Section 3 of the Act, he passes a judicial order, though discretionary one. A n order of adjournment is, therefore, ajudicial order.
(ii) Such ajudicial order, though discretionary one, requires reasons to be stated, may be brief. An order of adjournment Under Section 3 of the Act is, therefore, an order of reference of a case for being heard and determined by a Bench of two Judges.
(iii) An order of adjournment Under Section 3 of the Act being a judicial order of reference must be in writing. It should be signed by the Judge concerned. Without such a signed order, the matter cannot be referred to a Division Bench. To that extent, we approve of the reasoning in para 2 and 3 of the Division Bench decision in Bar Council of Kerala v. Thankappan Pillai, 1985 Ker LT 738.
(iv) In view of the above, we respectfully regret our inability to agree with the reasoning contained in para 5 of the Full Bench decision in Bar Council of Kerala v. Thankappan Pillai, 1985 Ker LT 769 : (AIR 1986 Ker 1 (FB), in so far as it overrules the Division Bench decision in 1985 Ker LT 738. The observations at the end of para 5 of the Full Bench judgment to the effect, "Ajudicial order in writing and signed by the Judge is evidently not a requirement of the express language of the Section", do not, in our view, lay down the correct law. The same are, therefore, disapproved.
(v) Similarly, the observations in para 7 of the Full Bench decision in 1985 Ker LT 769 to the following effect, "We accordingly hold that an oral direction of a single Judge in the presence of counsel, followed by an appropriate enforcement by the Court Officer, will satisfy the requirement of Section 3 in the matter of adjourning a case for being heard by a Division Bench, though in appropriate cases, a reasoned order in writing and signed by the Judge will be desirable", do not lay down the correct law and are, therefore, not approved. As indicated earlier, an order in writing signed by the Judge concerned is a must before a matter can be referred by a single Judge to a Division Bench Under Section 3 of the Act. A reasoned order in writing is the requirement of such a judicial order,
(vi) A litigant is entitled to ask his lawyer as to why his case has been adjourned by a single Judge to a Division Bench since it necessitates further hearing and costs to the litigant. A lawyer must be able to advise his client and tell him what necessitated a reference to a Division Bench, if a matter can and should under the Act/Rules be heard by a single Judge.
(vii) The result of reference by a single Judge to a Division Bench u/ S. 3 of the Act is that the matter cannot be heard by any other single Judge and must be heard and determined by a Division Bench, though a single Judge his jurisdiction to decide and hear matters enumerated in the main part of Section 3. Indeed, It is his duty to exercise the jurisdiction which is legally vested on him.
(viii) The proviso appearing in Section 3. is in the nature of an exception and, hence, the order of the single Judge must set out the exceptional circumstances, though briefly, taking the case out of the jurisdiction of the single Judge and referring it to a Division Bench.
(ix) A case being "important" or "very Important" cannot, by itself, be a ground to divest a single Judge of the jurisdiction legally vested in him. There must be one or more exceptional circumstance of the kind indicated in paragraph 20 above to take the case out of the jurisdiction of the single Judge and place it before the Division Bench for being heard and decided by the Division Bench. We hasten to add that the circumstances indicated in paragraph 20 are merely illustrative and not exhaustive.
44. In the light of the above, we are of the opinion that, in the scheme of the provisions of the Act, the words "adjourn it for being heard and determined by a Bench of two Judges" appearing in Section 3 must be construed narrowly, meaning thereby, a reference to another forum of two Judges for being heard and determined by them. The word "adjourn" can not be given a wide meaning which would normally imply a single Judge adjourning it to himself or the matter coming before another single Judge due to change of sitting; a Division Bench adjourning a matter to its own forum or the matter coming before another Division bench due to change of sitting. But when a matter is adjourned by a single Judge Under Section 3 of the Act to a larger forum of two Judges, in our view, the word "adjourn" must be construed to mean "refer". Secondly, in our view, there must be some exceptional circumstances to take a case out of the main part of Section 3 and to put it in the proviso. Some such circumstances justifying the matter being taken out of the main part of Section 3 and put in the proviso could be (i) conflict of views expressed by single Judges of the same Court, there being no Tatter decision of the Division Bench of the same Court or of the Apex Court; (ii) an important question of law of general or public importance affecting a large number of cases; (iii) a new legislation being challenged involving a provision which has no parallel in other statutes and validity of which Is challenged, as In the Ombudsman's case pending In this Court, where reference has been made by a single Judge to a Division Bench or (iv) identical or the same question of law being considered in a matter already before the Division Bench. Needless to say, these Instances are merely illustrative and cannot be exhaustive.
45. In this view of the matter, our answer to the first question is that the word "adjourn" in Section 3 must be construed narrowly, only to mean "refer". Similarly, our answer to the first part of second question is that, since an order of adjournment is a Judicial order, a single Judge passing such order should give brief reasons. A judicial order, though discretionary, has to be guided by reasons. One need not write a detailed judgment. There is no occasion for giving a detailed judgment because the matter is not decided. Nevertheless, brief reasons for making a reference should be indicated. inasmuch as the order of reference is a judicial order, it must be supported by reasons, which Is the very foundation of a judicial order. Even an administrative order without reasons is not countenanced by Courts of law exercising power of Judicial review over administrative action. Even the grant of adjournment is based on objective criteria. It cannot be granted arbitrarily to one litigant and refused to another. Unless there is a sufficient cause, adjournment is not granted. If that be the true approach, It is difficult to see how a Judicial order of reference can stand without even brief reasons. To the extent that, an order of adjournment passed by a single Judge Under Section 3 of the Act, adjourning the case for being heard and determined by a Division Bench is ajudicial order, which must be signed by the Judge concerned, all the counsel appearing before us are unanimous. To that extent, we must uphold the reasoning of the Division Bench in 1985 Ker LT 738. Consequently, we respectfully regret out inability to agree with the reasoning contained in para 5 of the Full Bench decision in 1985 Ker LT 769 : (AIR 1986 Ker 1 (FB)). In para 7 of the Full Bench decision, It has been held that in appropriate cases, a reasoned order in writing and signed by a Judge is desirable.
46. However, on the latter part of question No. 2 referred for our decision, viz. whether such an order of reference to a Division Bench is capable of being challenged in appeal Under Section 5 of the Act, we are of the view that a right of appeal created by a statute can be circumscribed by the statute itself. While the right of appeal flows from Section 5(1) of the Act, an order of reference by a single Judge to a Division Bench would, in our view, not be appealable. Such an order does not affect the rights of the parties since no rights, as such, are determined. The order is merely procedural one and is of an ad-interim nature. This view of ours is supported by the reasoning of the Full Bench of five Judges in K. C. Das's case (1992) 2 Ker LT 358 (supra para 24-25). Conclusion (1) clearly supports our view that such an order would not be an appealable order. There is no question, therefore, of the right of appeal being taken away merely when a single Judge makes a reference to a Division Bench. This conclusion of ours is also supported by the reasoning in Smt. Nirmala Birla's case (AIR 1975 Cal 348) (para 29 supra). The argument that such a right of appeal is adversely affected by making an order of reference, was rejected in para 9 of the Judgment at page 352 of AIR 1975 Cal 348.
47. In the view that we have taken in the preceding paragraph on the latter part of Question No. (2) viz. that an order of reference by a single Judge to a Division Bench is not capable of being challenged in an appeal under Section 5(i) of the Act, it Is not necessary for us to discuss the decisions of the Apex Court on the question that a right of appeal is a substantive right and is a creation of statute. It cannot be taken away lightly. This position is settled in view of the decisions in (i) Garikapati Veeraya v. N. Subbiah Choudhry, AIR 1957 SC 540 (ii) Sankar Kerba Jadhav v. State of Maharashtra, (1969) 2 SCC 793 : (AIR 1971 SC 840) and (iii) U. P. Awas Evam Vikas Parishad v. Gyan Devi, AIR 1995 SC 724, where the Apex Court relied upon a passage from Halsbury's Laws of England, 4th Edition. Vol. 37 pages 516 para 677 under the heading "Appeals to the Court of Appeal".
48. While there can be no doubt that a right of appeal is a creation of statute, in our view, the order passed by a single Judge Under Section 3 referring the case for being heard and determined by a Bench of two Judges is not appealable and, hence, there is no question of any right of appeal being adversely affected. No rights are determined while the matter is referred by a single Judge to a Division Bench. A single Judge is only expected to give brief reasons for making the reference to a Division Bench. He should, preferably, frame the question of law. as has been done in Ombudsman's case referred to In para 4(IV) above. To the extent to which the Full Bench in 1985 Ker LT 769, holds that rights of parties are not being settled while adjourning a case Under Section 3 of the Act. we are in respectful agreement with the view expressed by the Full Bench. We must. however, hasten to add that even such an order of adjournment referring the case to be heard and determined by a Bench of two Judges, is ajudicial order and is required to be In writing, Indicating brief reasons therefor. To that extent, as indicated earlier, we regret our Inability to agree with the view expressed by the Full Bench in 1985 Ker LT 769 : (AIR 1986 Ker 1) and we are in agreement with the Division Bench view in 1985 Ker LT 738. The first two questions will, therefore, stand answered accordingly.
49. The last question referred for our decision Is viz. whether a reference by a Division Bench to a Full Bench is permissible merely because both Judges in a Division Bench so agree that the decision involves a question of law. Section 4 has been reproduced in para 6 above. It deals with the powers of a Bench of two Judges, Indeed powers of the High Court. The proviso says that when both Judges agree that the decision involves a question of law, they may order that the matter or question of law be referred to a Full Bench. Whereas in Section 3, a single Judge is required to refer the entire case for being heard and determined by a Bench of two Judges, Under Section 4, a Division Bench may refer the entire case or question of law to a Full Bench. Assuming that to be so, it is difficult to appreciate why a Division Bench should not decide the question of law and merely because both the Judges agree that the decision involves a question of law. It should be referred to a Full Bench or the entire matter be referred to a Full Bench. If a question of law arises before a Division Bench, which situation is not uncommon, is it open to a Division Bench not to decide it and refer it to a Full Bench. One can understand when there is a conflict of Division Bench decisions on a question of law and there is no subsequent decision of the Apex Court on the point; in such a situation a reference to Full Bench would undoubtedly be justified. In the light of the cases we have discussed above, there is no doubt that the power of two Judges in a Division Bench to refer a question of law to a Full Bench must be exercised sparingly and only in cases where there is a conflict of opinion of Division Benches of this Court and there is no latter decision of the Apex Court on that point. Obviously, if there is a subsequent decision of the Apex Court which resolves the conflict or, in the light of which, one of the Division Bench decisions must be taken to be impliedly overruled and the other Impliedly upheld, the Division Bench is obliged to follow the view which has been impliedly upheld by the subsequent decision of the Apex Court. Our answer to the third question would, therefore, be that the provisions of Section 4 of the Act contemplate a reference by a Division Bench, not merely because both the Judges of the Division Bench agree that the decision involves a question of law. Such a reference by a Division Bench to a Full Bench is permissible only if there is a conflict of Division Bench decisions of this Court and there is no latter decision of the Apex Court resolving the said conflict directly or impliedly.
50. In view of our conclusions summarised in paragraphs 43 and 44 and the answers indicated in paragraphs 45 to 49, we are of the view that the order of reference dated 2nd April, 1993 by the learned single Judge in this O.P. does not satisfy the tests mentioned above. The petitioner, a police constable, has been removed from service under Ext. P8 order dated 3rd November, 1986 for misconduct, as defined in the Kerala Police Departmental Enquiries, Punishment and Appeal Rules, 1958. He had filed an appeal against the said order, which has been dismissed under the order Ext. P9 dated 24th March. 1987 by the DIG Police. Northern Range, Calicut. Further appeal was dismissed on 20th January, 1989 by the State Government under Ext. P10. These three orders recording concurrent findings of fact on the ground of misconduct by a police constable are impugned in the petition. The grounds raised in the petition, Inter alia, are that (i) having regard to the petitioner's acquittal in the criminal case, he ought to have been exonerated in the departmental enquiry; (ii) principles of natural justice were not complied with while conducting the departmental enquiry; (ill) the incident of misconduct in question was of 14th October, 1980 and hence, the provisions of Rule 10(b) of 1958 Rules would be applicable, though the same was deleted with effect from 12th April, 1985 and (iv) the punishment Imposed was excessive and disproportionate.
51. In our view, whether the petitioner is entitled to reinstatement with or without backwages can be decided by a single Judge Under Section 3 of the Act. It may have its "impact on the discipline of the force", as stated by the learned single Judge. But, if such a petition is required to be heard by a single Judge in the scheme of Section 3 of the Act, there is no reason why it should be referred to a Division Bench, in the absence of any of the circumstances indicated in para 20 or 44 or a similar circumstance necessitating reference to a Division Bench. In this view of the matter, though the order of reference dated 2nd April, 1993 passed by the learned single Judge does not meet the requirements Indicated in para 43 or 44, in view of our conclusions in paragraphs 46 and 47, the Division Bench has to hear the matter referred to it by the single Judge.
52. In view of the above, since this petition has been pending since 1989, it should be placed before a Division Bench for being disposed of in accordance with law. The papers may, therefore, be placed before the Chief Justice for necessary orders.
Radhakrishnan, J.
53. The question that has come up for consideration before the Larger Bench is essentially with regard to interpretation of Ss. 3 and 4 of the Kerala High Court Act, 1958. I had the privilege of going through the judgment of the learned Chief Justice. Learned Chief Justice in his erudite judgment has already dealt with in extenso various arguments addressed at the Bar and has answered the reference with which I fully concur. I do not propose to deal with those matters over and again, however, I would like to add a few points of my own.
54. The Kerala High Court Act, 1958 is not conferring any power on the High Court, for that matters, on the Judges of the Court. The Act Is intended only to make provisions to regulate the business and exercise of powers of the High Court of Kerala. The Kerala State Legislature in exercise of the powers under Entry 3 of List II of the Seventh Schedule read with Article 225 of the Constitution enacted the Kerala high Court Act. "Administration of Justice" is an item which was originally included in Entry 3 of List II of the Seventh Schedule, which enabled the State Legislature to make law for regulating the practice and procedure of the High Court in relation to the administration of justice. By the 42nd Constitution Amendment Act, 1976, the expression "Administration of Justice" has been transferred from Entry 3 List II to the concurrent list and inserted as Entry 11A in List III of the Seventh Schedule.
55. The Kerala High Court Act, 1958, as per Section 9, repealed the provisions of the Travancore Cochin High Court Act, 1125 M.E. in so far as they relate to matters provided in the High Court Act. The Preamble of the Travancore Cochin High Court Act, 1125 M.E. reads as follows :
Whereas it is necessary to regulate the business of the High Court of Travancore Cochin, for Fixing the jurisdiction and powers of single Judges. Division Benches and Full Benches and for certain other matters connected with the functions of the High Court.
The Preamble of the Kerala High Court Act reads as follows :
An Act to make provision regulating the business and the exercise of the powers of the High Court of the State of Kerala.
The words "fixing jurisdiction and powers" are absent in the Preamble of the Kerala High Court Act. The Act is never intended to confer on the High Court or its Judges the Jurisdiction and powers, but only to regulate the business and the exercise of powers of the High Court.
56. Section 20 of the T-C High Court Act deals with the powers of the single Judge of the High Court. The second proviso to the said section reads as follows :
Provided always that it shall be lawful for such Judge, to refer any such application or appeal for the decision of a Division Bench of two Judges or of a Full Bench.
In the Kerala High Court Act, the power of the single Judge to adjourn the case is dealt with in Section 3 of the Act, which is extracted below :
3. Powers of single Judge.-- The powers of the High Court in relation to the following matters may be exercised by a single Judge provided that the Judge before whom the matter is posted for hearing may adjourn it for being heard and determined by a Bench of two Judges.....
On a comparison of the above mentioned two provisions, the words "the matter is posted for hearing" are absent in Section 20 of the T-C High Court Act. A learned single Judge could exercise his powers under Section 3 of the Kerala High Court, only when the matter is posted for hearing. A matter is posted for hearing, only when a Judge sits in the Court. When we look at Section 4 the words "posted for hearing" are also absent. Further, under Section 4, only if both the Judges agree that the decision involves a question of law, the matter or question of law could be referred to a Full Bench. Since the decision is to be taken by two Judges under Section 4. there must be consensus ad item, which precedes a discussion between two Judges, a sufficient safeguard against arbitrariness and irregular exercise of powers. As far as Section 3 is concerned, decision has to be taken by the single Judge alone, when the matter comes up for hearing. Hence the necessity to lay down certain Judicial standards or guidelines for the proper orderly exercise of powers.
57. Article 215 of the Constitution states that every High Court shall be a Court of record and have all the powers of such a Court including the power to punish for contempt of itself. The Court of record has got power to determine "questions about its own jurisdiction" and also got inherent power to punish for its contempt. Every High Court also has Inherent and plenary powers. Supreme Court in Delhi Judicial Service Association v. State of Gujarat (1991) 4 SCC 406 : (AIR 1991 SC 2176) has held that both the Supreme Court and High Courts are Courts of record Constitution does not define "Court of Record", but this expression is well recognised in judicial world. A Court of Record is "a Court whereof the acts and Judicial proceedings are enrolled for a perpetual memorial and testimony" and has power of summarily punishing contempt of itself as well as subordinate Courts. Supreme Court in M.V. Elizabeth v. Harwan Investment and Trading. (1993) Supp 2 SCC 433 : (AIR 1993 SC 1014), held that High Courts have unlimited jurisdiction, including jurisdiction to determine their own powers. This unlimited jurisdiction has been conferred on the High Courts since they are constitutional Courts of record. The State Legislature or Union Legislature has no power to curtail, modify or limit such jurisdiction and powers as defined in the body of the Constitution. High Court, as a Court of record, can lay down its own standard or procedure. These principles fully support the standards laid down by the learned Chief Justice with which I concur.
58. The State Legislature has no power to direct the High Court, for that matters, a learned single Judge while exercising power under Section 3, or a Division Bench while exercising power under Section 4, of the Kerala High Court Act, as to how and In what matter they should exercise the powers conferred on them "to adjourn" or "to refer" the matter to a Bench of two Judges or a Full Bench respectively, since those are essentially Judicial functions. We have to examine the provisions of Sections 3 and 4 In the light of the above mentioned principles.
59. A learned single Judge has got a duty to exercise the powers conferred on him under clauses 1 to 13 of Section 3 of the High Court Act, which is a power coupled with duty. The only ground on which he could avoid discharging his duty when the matter comes up for hearing is by adjourning the matter to a Division Bench. The functions that he discharges under the substantive part of Section 3 as well as under the proviso are Judicial functions. If a learned Judge abdicates his duties by avoiding the burden of discharging the duties under the substantive part of Section 3 on "unstated" and "undisclosed" grounds, he would be acting arbitrarily. In such a situation it is no answer that he is not deciding a lis between the parties, and therefore no prejudice would be caused. The question is whether the learned Judge has properly exercised his powers under the proviso, and not whether he has properly exercised the powers under clauses 1 to 13 of Section 3, that is resolution of dispute inter-partes.
60. I do not endorse the view that the word "adjourn" in the context of proviso to Section 3 be given a literal meaning, or the popular meaning of "adjournment", as understood in the legal profession. The word "adjourn" usually understood in the legal profession Is to postpone or suspend the hearing of a case until a further date, or adjournment sine die. The purpose of the word "adjourn" occurring in the proviso to Section 3 is not to postpone or suspend the hearing of a case until a further date, but to decide the matter by a Bench of two Judges. The purpose and object are entirely different. The word "adjourn" in the proviso to Section 3 has a different purpose to achieve, but not an adjournment slmpliciter to another day. The same word gives one meaning in one context and an other in a different context. I am also of the view that no different meaning could be attributed to the words "adjourn" and "refer" when we understand the meaning of those words in the context in which they are used. The order passed under the proviso to Section 3 is not known as an "Adjournment Order", but always understood and captioned by the learned Judges as "Reference Order".
61. Supreme Court in Darshan Singh Balwant Singh v. State of Punjab, AIR 1953 SC 83, at page 86, held as follows :
The words and phrases occurring in a statute are to be taken not in isolated or detached manner or disassociated from the context, but are to be read, taken and construed in the light of the purpose and object of the Act itself.
Supreme Court in Organo Chemical Indus-tries v. Union of India, AIR 1979 SC 1803, at page 1817 held as follows :
Each word, phrase or sentence is to be considered in the light of general purpose of the Act itself. A bare mechanical interpretation of the words 'devoid of concept or purpose' will reduce most of legislation to futility. It is a salutary rule, well established, that the intention of the legislature must be found by reading the statute as a whole. Only when a learned Judge exercises powers under the proviso to Section 3, a Division Bench gets jurisdiction to determine that matter referred to it. In cases where appeal Is not provided, it is open to a learned Judge to adjourn the matter to be heard by a Division Bench. In other words, order passed by the learned Judge under the proviso to Section 3 amounts to a jurisdictional fact, the existence or non-existence of which depends upon assumption of jurisdiction by a Bench of two Judges. The conduct of adjourning a case by a learned Judge to another day or sine die is altogether for a different purpose. By the said order, no Jurisdiction is conferred on a Bench of two Judges to decide the matter. Therefore we cannot equate an order "adjournment Simpliciter" to the word "adjourn" used in the proviso to Section 3. The Apex Court in Administrator. Municipal Corpn. v. Dattatraya Dahankar, (1992) 1 SCC 361 : (AIR 1992 SC 1846) held the mechanical approach to construction is altogether out of step with the modern positive approach. The modern positive approach is to have a purposeful construction that is to effectuate the object and purpose of the Act.
62. The purpose to be achieved by adjournment simpliciter and adjournment under the proviso to Section 3 has no comparison. The meaning of the word "adjourn" is not to be taken in abstract, but regard must be had to the setting in which the word occurs and also the subject matter and object of the provision. I also fully endorse the view that the word "adjourn" appears in the proviso to Section 3 is to be strictly construed, and not to give any ordinary or popular meaning of the word "adjournment". Supreme Court in Satnam Singh v. P & H High Court, (1997) 3 SCC 353 : (AIR 1997 SC 983) held that a proviso has to be strictly construed in asmuch as it carves out an exception to the general rule. The general rule enacted in the main part is not to be unduly restricted by expanding the context of the proviso which is intended to carve out the exception from the general rule. If the word "adjourn" is given its literal meaning, and meaning that is given for adjourning a case by a Judge to another day or sine die, that would defeat the purpose and expand the context in which the word "adjourn" is used, and would unduly restrict the scope of clauses 1 to 13 of Section 3 it is therefore necessary that the exercise of powers under the proviso to Section 3 has to be regulated by judicial standards.
63. I fully endorse the view of learned Chief Justice that while exercising the powers under the proviso, learned Judge should give brief reasons. Every judicial act must be informed by reason. It follows that an act uninformed by reason is arbitrary. This is an inbuilt safeguard in the judicial system of administration. A Judicial order presupposes reasons. It is not due to any statutory compulsion, but by virtue of the very system itself. A Judge need not look at the Legislature to ascertain whether it has compelled him to give reasons, when he exercises the power under the proviso to Section 3. The question whether a case is to be adjourned to a Division Bench or not is discretionary, and the same be left to the learned Judge, for which Legislature has no role to play. Legislature cannot impose any fetters on the discretionary power of a learned Judge. The Constitution has delineated delicate balance in the exercise of sovereign power by Legislature, Executive and Judiciary. Right to adjourn by a learned Judge to a Bench of two Judges is a judicial function, that is to be governed by judiclal standards and not by Executive or Legislative flat.
64. Adjournment to a Division Bench on non-existing grounds will amount to abdication of the duties enumerated in clauses 1 to 13 of Section 3. Failure to exercise powers by a single Judge under Clauses 1 to 13 would Itself be a prejudice to the litigant. In other words, non-exercise of powers under clauses 1 to 13 itself is a prejudice. Arbitrary or improper exercise of power by a learned Judge by adjourning the matter to a Division Bench without discharging duties under the substantive part of Section 3 would Itself be a prejudice. Suppose there are binding decisions of the Division Bench or of the Supreme Court on the point, learned Judge is bound to apply those decisions and adjudicate the rights of the parties under clauses 1 to 13 of Section 3. Instead if he adjourns the case to a Division Bench on "undisclosed grounds". It will be a prejudice to the party. Even if no grounds exist, a learned Judge could abdicate his duty conferred on him under clauses 1 to 13 by shunting the responsibility to the Division Bench on "unstated grounds". That would also amount to arbitrariness. All the above mentioned situations. In my view, would prejudice a party, though learned Judge is not deciding a lis as such. In order to check the possibility of unwanted references, learned Judge should give reasons in the order.
65. I am of the view that the opportunity of the Division Bench as well as litigant public to look at the Reference Order itself is a sufficient check against unwanted and unnecessary adjournments to Division Bench. This will reduce the burden of the Division Bench. Just like a learned single Judge they have also to discharge their function under clauses 1 to 7 of Section 4 of the Act, and they shall not be burdened with unnecessary references on unstated and undisclosed grounds. This check itself would be a reminder to the learned Judge of the duty cast on him under the substantive part of Section 3 of the Act.
66. Judicial subjectivitism is not compatible either to public interest or rule of law. Justice cannot be accomplished without an orderly system of judicial administration. When a litigant's case comes up for hearing before a learned single Judge, and learned Judge adjourns the case to a Bench of two Judges to be heard and decided, the learned Judge is adjourning the matter which he is otherwise duty bound to hear. Should not the litigant be made known the reasons for doing so, or can he be told that it is entirely for the learned Judge to decide? Will not this subjective approach to the administration of Justice result in irrational, whimsical and unpredictable decisions? Whatever course of action the learned Judge may take with regard to a case coming before him for hearing, is not the litigant public legally entitled to know the reasons for his case to be heard by a Bench of two Judges? Can a judicial officer arrogate himself the role of an absolute monarch stating that he did so for the best reasons known to himself? Credibility in the functioning of justice delivery system and the reasonable perception of the ordinary litigant public are relevant considerations to ensure continuance of public confidence in the credibility and impartiality of the judiciary for which Judges are not an exception.
67. Brooms Legal Maxims, 10th Edn., by Sweet and Maxwell at page 46 it is stated as follows :
Although necessarily many things, especially in the domain of procedure, are left to the discretion of our Judges, the maxim is also observed in our Jurisprudence, optima est tex quae minimum rellnquit arbitrio judicls, optimus judex qui minimum sibi (n) that system of law is the best, which leaves least to the discretion of the Judge, that Judge the best, who relies least on his own opinion. And although, where discretion is left to a Judge; he is to a great extent unfettered in its exercise, Coke's definition still holds good, discretio est discemere per legem quid sit justum (o), and discretion, when applied to a Court of Justice, means sound discretion guided by law. It must be governed by rule, not by humour, it must not be arbitrary, vague and fanciful, but legal and regular.
68. Are we not aware of the time hallowed phrase that "Justice should not only be done but be seen to be done". Why not a Judge disclose what are the materials which weighed with him when he decided to adjourn the case to be heard by a Bench of two Judges. For that matter, should he wait for any legislative or Judicial compulsion? After taking oath and wearing robe of a Judge and taking a seat in Court for administering justice, can there be any subjectiveness in his action?
69. Supreme Court in S. Nagaraj v. State of Karnataka, (1993) Supp 4 SCC 595 held that justice is a virtue which transcends all barriers of law; neither the rule of procedure nor technicalities of law can stand in its way. Supreme Court in Sarat Kumar Dash v. Biswajit Patnaik. (1995) Supp (1) SCC 434 : (1994 AIR SCW 5206) held that reasons are a link between the maker of the order or the author of the decision and the order itself. Lord Hewart, C. J. in R. v. Sussex Justices, (1924) 1 KB 256, at 259 held that it is of fundamental importance that justice should not be done, but should manifestly and undoubtedly be seen to be done. Dicey, Law of the Constitution, 10th Edn., Introduction, stated that if a decision is taken without any principle or without any rule, It is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law.
70. The Legislature used the expression "may adjourn" in the said Section since power is conferred on a constitutional authority. When power is conferred on a constitutional Court, Legislature would normally use permissive expression. Supreme Court in Ramji Missar v. State of Bihar, AIR 1963 SC 1088 held that the words in Section 11(1) of the Probation of Offenders Act, "pass an order under the Act" imposes a duty to pass an order under the Act, subject to the conditions and limitations imposed by the Act, and the Court had no unfettered discretion in refusing to pass an order. The words "may adjourn" in certain cases are used out of deference to the high status of the authority on whom power or an obligation Is intended to be conferred or Imposed. What are all the circumstances and grounds which guide him to exercise that discretion is for the Courts to lay down and not for the Legislature, as I have already indicated. Those standards have been laid down by the learned Chief Justice in his erudite judgment with which I fully concur.
71. Learned single Judge is bound to act on the basis of those parameters. Learned Judge has to act on judicially determined standards, which have been already elaborately discussed by the learned Chief Justice. The parameters laid down are only illustrative and not exhaustive and cannot be fit in a strait jacket formula, but depends upon the facts and circumstances of each case and to the good sense of the judge concerned.
Koshy, J.
72. I had the privilege of reading the elaborate order given by the Hon'ble Chief Justice with regard to the question referred to the Larger Bench. I respectfully agree with the Hon'ble Chief Justice in the conclusion stated in para 43(1), (iii) and (iv). It is true that when a single Judge adjourns the case for being heard and determined by a Bench of two Judges it should be signed by the Judge himself. Without signed order, the matter cannot be referred to the Division Bench and the reasoning of the Division Bench decision in Bar Council of Kerala v. Thankappan Pillai, 1985 Ker LT 738 is correct and the Larger Bench decision in Bar Council of Kerala v. Thankappan Pillai, 1985 Ker LT 769 : (AIR 1986 Ker 1 (FB)) is not correct in so far as it overrules the decision in 1985 Ker LT 738. I also agree with the views expressed by the Hon'ble Chief Justice that it is desirable to have a reasoned order while adjourning the matter by a single Judge to a Division Bench. 1 further agree that an order of adjournment adjourning the matter by a single Judge to a Division Bench is not an appealable order and there is no question of right of appeal being taken away merely when a single Judge adjourns the case to a Division Bench as held in paragraphs 46 to 48 of the order. As observed by the Hon'ble Chief Justice that since the order of adjournment by the single Judge to the Division Bench under Section 3 Is not appealable even if the order of adjournment contains no reason, the Division Bench has no option but to decide the same.
73. I beg to differ from the opinion of the Hon'ble Chief Justice that an order of adjournment being a judicial order should always contain reasons for the same. Since the provisions of the Kerala High Court Act. Travancore-Cochin High Court Act as well as other provisions of the Rules existing in various other High Courts were discussed in detail, I am not repeating the above. The power of a single Judge is mentioned in the Kerala High Court Act in Section 3. It includes power to adjourn the matter for being heard and determined by a Bench of two Judges. The word 'adjourn' is used intentionally in Section 3 of the Act. Legislature was aware of the difference between the word 'adjourn' and 'refer'. In Section 4 of the Act, it is specifically provided that if both Judges agree that the decision involves a question of law they may order that the matter or question of law be referred to a Full Bench. The word 'reference' is consciously used. Further, it was specifically provided in Section 4 of the Act that the Bench of two Judges can exercise all powers that can be exercised by a single Judge. While hearing a case adjourned by a single Judge to be heard by a Division Bench, the Division Bench is not acting as a superior Court but in exercise of powers under Section 4(1) the same powers of the single Judge is exercised by the Division Bench. Therefore, functionally, there is no difference. By enacting the Kerala High Court Act replacing the Travancore-Cochin High Court Act, It was specifically stated that the provisions of the Travancore-Cochin High Court Act will continue except to the extent to which matters have been provided for under the Kerala High Court Act. In fact, the Kerala High Court Act was enacted to Improve the provisions of the Travancore-Cochin High Court Act and wherever change is necessary that was made.
74. Section 20 of the T. C. Act specifically gives power to the single Judge 'to refer' the matter either to a Division Bench or to a Full Bench. The power of the single Judge 'to refer' the matter to the Division Bench or Full Bench was subsequently changed intentionally by the Legislature fully knowing the meaning of the word 'adjourn' and a conscious deliberate departure from the predecessor Act was made while drafting Section 3 of the Kerala High Court Act and also making power of the single Judge and Division Bench equal under Section 4(1) of the Act. The power of the single Judge to 'adjourn' the matter Is only a power to place the entire matter before the Division Bench and not a particular question of law. In Kallara Sukumaran v. Union of India, (1987) 1 Ker LT 226 : (AIR 1987 Ker 212), it is held that the single Judge cannot refer a question of law to the Division Bench. The entire case should be adjourned and even if only a question of law is referred, the entire matter has to be decided by the Division Bench. If there are five questions of law involved and the single Judge feels that only one question needs the opinion of the Division Bench, then also, the entire matter has to be referred and not that question alone. A conscious departure was made from the earlier Act and from the Acts and Rules prevailing in other States by the Kerala Legislature. Therefore, the word 'adjourn' mentioned in Section 3 should be given the plain meaning. When a single Judge adjourns the case to himself also, order of adjournment is a judicial order. No reasons are usually written. Even in such cases, a client may ask the Advocate why it was adjourned. In certain matters, even if a case is adjourned, it may cause some prejudice to the parties. Sometimes by an adjournment of a case to another date the entire matter may become infructuous. In case of adjournment by a single Judge to himself if an order with reasons are not necessary, it is not compulsory for an order of adjournment to a Division Bench also to give reasons even though it is desirable to give reasons. But it is also desirable for a learned single Judge to give reasons for a usual adjournment of a case to a single Judge himself to another date also. But, it is not compulsory and sometimes it is not practically possible. In other words, it is not essential. The longstanding practice in the Kerala High Court from its inception is to adjourn a case to the Division Bench if the single Judge is subjectively satisfied that it requires to be heard by a Division Bench. Only in few cases adjourned after elaborate hearing, the single Judges used to give elaborate orders giving reasons. The longstanding practice is the result of the definite departure of the wording in Section 3 of the Kerala Act from Section 20 of the Travancore-Cochin High Court Act.
75. Now, I may refer to some of the well-accepted principles of interpretation. A statute is an edict of the legislature and the conventional way of interpreting or construing a statute is to seek the intention of its maker. The rule of construction is 'to intend the Legislature to have meant what they have actually expressed' and intention of Legislature should be deduced from the language used. (See Maxwell on The Interpretation of Statutes' -- Twelfth Edition J. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. (Chandravarkar Sita Ratna Rao v. Ashalata S. Guram, (1986) 4 SCC 447 : (AIR 1987 SC 117). When the words of a statute are clear, plain or unambiguous, that is, reasonably susceptible to one meaning, Courts are bound to give effect to that meaning irrespective of consequences as held by the Supreme Court in Nelson Motts v. Union of India, AIR 1992 SC 1981. As held by the Privy Council in Crawford v. Spooner, (1846) 6 Moore PC 1 "we cannot aid the legislature's defective phrasing of an Act, we cannot add or mend and, by construction make up deficiencies which are left there". The words of a statute are first understood in their natural, ordinary or popular sense unless that leads to some absurdity. Das Gupta, J. has stated in Mahadeolal Kanodia v. Administrator General of West Bengal, AIR 1960 SC 936 that "the Intention of the legislature has always to be gathered by words used by it, giving to the words their plain, normal, grammatical meaning". We may also refer to the legislative history. A conscious departure of the word 'reference' under Section 20 of the T. C. Act while enacting Section 3 of the Kerala Act is indicative of the Intention. The word 'reference' Is used under Section 4 with regard to the powers of the Division Bench. It clearly shows that the Legislature was aware of the difference in the meaning of the verbs 'adjourn' and 'refer' and they are not synonymous.
76. It Is held by the Supreme Court in M/s. Patheja Bros. v. ICICI Ltd., (2000) 8 JT (SC) 252 : (AIR 2000 SC 2553) that when the words in the Act are clear, it should be given effect. His Lordship Justice S. P. Barucha observed as follows In the above judgment, (para 12) :
"When the words of a legislation are clear, the Court must give effect to them as they stand and cannot demur on the ground that the legislature must have intended otherwise."
The word 'adjourned' has got an accepted meaning as understood by all persons connected with the legal profession. The above word was used knowing the meaning of the word 'adjourn' fully well by the Legislature and I am of opinion that neither a narrow meaning nor a wider meaning need be given to that word. The normal meaning of the word 'adjourn' as understood by all people connected with the legal profession has to be given to the word 'adjourn' in Section 3 of the Act. In Thampanoor Ravi v. Charupara Ravi, (1999) 8 SCC 74 : (AIR 1999 SC 3309), the Supreme Court held that if an expression acquires a special connotation of law, it must be assumed that the legislature has used it in its legal sense and not with reference to the dictionary meaning. Chief Justice Dr. A. S. Anand in paragraph 22 of the above judgment stated the law very clearly as follows (Para 21 of AIR) :
"22. In ascertaining the meaning of an expression used in a statute, certain norms are adopted. If the legislature has used an expression which has acquired a technical meaning and such expression is used ordinarily in the context of a particular branch of law, it must be assumed that because of its constant use the legislature must be deemed to have used such expression in a particular sense as Is understood when used in a similar context. If an expression has acquired a special connotation in law, dictionary or general meaning ceases to be helpful in interpreting such a word. Such an expression must be given its legal sense and no other. In this context, we may refer to the weighty observation in the decision of this Court in State of Madras v. Cannon Dunkerley & Co. (Madras) Ltd., AIR 1958 SC 560 that a term of well-recognised import in the general law should be accepted as confining the meaning in interpreting the Constitution. If the expression "undischarged Insolvent" has acquired a special meaning under the then law of insolvency, we must understand that that is the meaning that is sought to be attributed to the expression used in Article 191(1)(c) of the Constitution."
Therefore, I am of the opinion that if a single Judge after considering the case forms an opinion that because of the important question of law or because of the conflicting decisions or for any other reasons it is a matter to be heard by two Judges, it can be adjourned to be heard by two Judges even though it is desirable to have the reasons stated in such orders. But, such orders of adjournment cannot be faulted with merely because reasons were not stated. In fact, the single Judge is expected to adjourn the case to be heard by a Division Bench if he is only bona fide forms an opinion that such course is necessary like in the case of an adjournment of a case from one date to another to his own Bench etc. There should be some reasons. It is true that an order passed by the learned single Judge while adjourning the case to a Division Bench under Section 3 of the Kerala High Court Act is a Judicial order and it should be signed by him. But, as observed by the learned Chief Justice, it is an order which cannot bejudicially reviewed. It is not an order within the meaning of Section 5(1) of the Kerala High Court Act. None of the rights of the parties are adjudicated.
77. It is true that even administrative orders should have reasons stated if any of the rights of the parties are affected by such an order. Here, none of the rights are affected and the entire matter is before the Division Bench and the entire matter has to be decided by the Division Bench. On adjournment of the proceedings by a learned single Judge In exercise of the power under Section 3, the entire proceeding as such is coming up before the Division Bench. Hearing and determination of the matter is then done by the Division Bench. What is involved is not a reference either of a matter of a specific question. What takes place in consequence of the exercise of the power under proviso to Section 3 is adjournment of a case for hearing and determination by a Division Bench. Therefore, I am of opinion that the submission of Shri V. Girt and Shri Razak that "though it would be desirable for a learned single Judge to give the reasons which have persuaded His Lordship to exercise the power under the proviso to Section 3 it may not be essential" is correct. Where reasons have been given by the learned Judge it can only be an expression of opinion by the Judge, which is not capable of or intended to determine the rights of the parties. Such expression of opinion is not susceptible to judicial review at the hands of the Division Bench. Since by an order of adjournment, lis pending between the parties are not decided, and the order is not appealable or amenable to judicial review and observations or reasons in the adjournment order are not binding on any persons and notwithstanding what is stated in the reference order, the Division Bench can decide the entire matter ignoring the reasons for reference, in many cases no purpose is served by indicating reasons in the adjournment order.
78. If an important question arises and though a single Judge has got jurisdiction to deal with the same if he feels that in the circumstances of the case and importance of the matter, entire matter should be heard by the Division Bench, he is given an unfettered power under Section 3 to adjourn the matter and the above power cannot be restricted by Judgments. In 1985 Ker LT 738 also while holding that orders of adjournment should be signed by the Judge himself, it was never stated that it should be a speaking order. If there is conflict of decisions by various Courts or circumstances mentioned in para 20 of the order of the Hon'ble Chief Justice, perhaps a learned Judge is compelled to make an adjournment of the matter to be heard by the Division Bench. But, I cannot accept the proposition that even if a Judge earnestly feels that there is an important question which is advantageous to be heard by the Division Bench, in the circumstances of the case, cannot be adjourned under Section 3 to be heard by a Division Bench merely because he has jurisdiction to decide important questions also. There may be cases where, after hearing the parties, single Judges may feel difficult to form an opinion in view of the complicated nature or very important questions which, in the opinion of the single Judge, should have an authoritative decision by the Division Bench.
79. It is true that normal function of a proviso is to except something out of the enactment. The general rule in construing an enactment containing a proviso is to ensure to consider them together without making either of them redundant. In fact, by Section 3, a definite power is given to the learned single Judge to adjourn the matter to be heard by a Division Bench if he is of the opinion that it is a matter to be heard by two Judges instead of singly by him and no reference order giving reasons is necessary even though it was desirable for reasons stated. The above power given In the section after making clear departure from the parent Act and Section 4 cannot be ignored or restricted stating that it is a mere proviso to a section.
80. Further, in this case under consideration, the order of reference of the learned single Judge gave brief reasons. The order of the learned single Judge is as follows :
"Petitioner Police constable was convicted of an unnatural offence. The Court of Session acquitted him. No appeal was preferred. On the basis of the facts which formed the subject of the prosecution, he was dismissed from service. Petitioner claims reinstatement on the basis of the order of acquittal. Even assuming he is to be reinstated whether he should be given full service benefits, is a question of importance, which may have its impact on the discipline of the force. Perhaps, the Department has to thank itself for certain consequences that may follow. I adjourn the petition to be heard by a Division Bench."
Brief reason, whether correct or not, is actually given by the learned single Judge. Since the above reason is not amenable to judicial review or appealable as held by the Hon'ble Chief Justice, one need not look into the correctness of the above reference order as it will be an unnecessary judicial exercise. In any way, the entire matter has to be heard by the Division Bench. In view of the above circumstances and express clearwords used in the section, it is not necessary to lay down that it is obligatory to give reasons while a case is adjourned by the single Judge to be heard and decided by a Division Bench but only express the opinion that statement of reasons is desirable in such adjournment order. I agree with the final order of the Hon'ble Chief Justice that the entire O.P. shall be placed before the Division Bench to be heard and determined in accordance with law.
Kurian Joseph, J.
81. I have gone through the elaborate, lucid and erudite order prepared by the learned Chief Justice and also the dissenting note of my learned brother J. B. Koshy. I perfectly agree with the answers of the learned Chief Justice, except on one aspect, viz. that the process of adjournment by a single Judge to a Division Bench "must be construed narrowly only to mean refer". In my humble view, since the Legislature has used two different expressions, "adjourn" in the case of a single Judge and "refer" in the case of a Division Bench, both are meant to be different. These words need be construed only in their plain meaning. I agree with the view expressed by the learned Chief Justice that it is desirable that a single Judge passes a reasoned order while adjourning a matter for being heard and determined by a Division Bench. But we cannot strain much to read into. In order to have a desired result, something which Is not there in the Act, when the expressions are capable of a plain interpretation. It is to be noted that the predecessor Act, viz. the Travancore-Cochin High Court Act, 1125 used the expression "refer" in the case of the single Judge also. However, in the successor Act, viz. the Kerala High Court Act, 1958 the word "refer" had been substituted by "adjourn" while dealing with the powers of the single Judge. It is particularly significant in-this context to note that the Travancore-Cochin High Court Act, 1125 was applicable as such to the High Court of Kerala till the Kerala High Court Act, 1958 was brought into force on 9-3-1959. Thus, it can be seen that in the High Court of Kerala Initially the single Judge had to refer a matter to the Division Bench till 1959 when the Kerala High Court Act provided for the new provision requiring the single Judge only to adjourn the case for being heard and determined by the Division Bench. It is also to be noted in this context that the single Bench is well within its jurisdiction to adjourn any matter posted before it. True, that Jurisdiction is conferred on it by a "proviso" intending thereby to mean that such adjournment is not the normal thing that the single Bench is expected to do. And yet the Legislature thought it fit to prescribe two different procedures of transferring a case from one forum to a different forum, "adjourn" in the case of single Judge and "refer" in the case of Division Bench. Both the process and procedure of placing a matter by a single Judge before Division Bench and by the Division Bench before Full Bench are different. However both the Sections provide for such a transfer by a 'proviso'. While the single Judge merely places a matter as such for being decided by the Division Bench, the Division Bench makes a reference to the Full Bench under Section 4 as follows : "If both Judges agree that the decision involves a question of law, they may order that the matter or question of law be referred to a Full Bench". So it cannot in absolute terms be held that the order of adjournment by a single Judge to a Division Bench is only an order of reference. To the above extent I agree with the views of my brother J. B. Koshy and in all other respects I fully agree with the high-wrought observations, views and conclusions of the learned Chief Justice.
82. I have also a passing observation. Unlike other statutory rules, the Rules of the High Court of Kerala are framed by the High Court in exercise of its power under Article 225 of the Constitution of India. Section 120 of the Code of Civil Procedure, 1908 and all other enabling powers "to regulate its procedure". Since it is not possible to discern such a procedure either in the Act or the Rules as to how a single Judge should adjourn the matter to the Division Bench or the Division Bench to Full Bench and as it is now felt it to be desirable to provide for the process and procedure of adjournment and reference, it is for the High Court to take up the matter in a legislative exercise.
ORDER OF THE COURT
83. In view of the majority judgment rendered by Savant, C. J. the order of the Court will be the order as per paragraphs 50, 51 and 52 above.