MANAGEMENT OF THE HINDUSTAN COMMERCIAL BANK LTD., KANPUR versus BHAGWAN DASS

MANAGEMENT OF 1HE HINDUSmAN COMMERCIAL BANK LTD., KANPUR,

BHAGWAN DASS November 26, 1964

[P. B. GAJENDRAGADKAR, C.J., M. HIDAYATULLAH, ]. C. SHAH, S. M. Snau, AND R. S. BACHAWAT, JI.]

Supreme Court Rules, Order 13 r. 2-p•titibn for 1pecial leave 10 oppeal-whether can be entertained without appel/11111 fir~! applying for certificate to High Court-and without applying for exemption under Order 45 r. I-whether Order 13 r. 2 mandatory. In petition under Article 227 fi:ed by the respondent, the High Court quashed an order of the Labour Court. The appellant then filed before the High Court petition praying for the issue of certificate under Art. 132( I) and Art. 133 of the Constitution for leave to appeal to the Supreme Court. The petition was returned to the appellant with the intimation that it should be presented at Chandigarh and not at Delhi. The appellant thereafter did not proceed with that petition but applied for and was granted ex-part• special leave to appeal under Article 136.

It was contended on behalf of the respondent that the •pecial leave granted to the appellant was liable to be revoked and it was obtained with-out complying with the provision of Order 13 r. 2 of the Supreme Court Rules, whereby when 'l'l appeal lies to the Supreme Court on certificate issued by High Court or other tribunal, no application to the Supreme Court for special leave can be entertained un1... the High Court or the tribunal concerned has first been moved and it has refused to grant the certificate; and furthermore special leave had been obtained without applying for exemption from moving the High Court for certificate.

HELD : In view of the provisions of Order 13 r. 2 which is mandatory rule, no application for special leave to appeal in this case could be entertained unless the High Court had first been moved and refused to grant the certificate. Under Order 45 r. 1 of the Supreme Court Rules, this Court could, for sufficient reasons shown, excuse the appli-cant from compliance with the requirements of Order 13 r. 2; but no such application for exemption had been made. The special leave to appeal obtained in contravention of Order 13 r, 2 was therefore liable to be revoked. [267 G, H; 268 A]

Union of India v. Kishore Lal Gupta [1960] 1, S.C.R. 493, SOO, dis-tinguished.

C1v1L APPELLATE JURJSD1cnoN: Civil Appeal No. SS of 1964 and C.M.P. No. 2174 of 1964.

Appeal by special leave from the judgment and order, dated February 23, 1962, of the Punjab High Court in Civil Miscella-neous No. 1322 of 1961.

T. R. Bhasin, for the appellant.

M. K. Ramamurthi, D. P. Singh, R. K. Garg and S. C. Agar-wala, for the respondent.

The Judgment of the Court was delivered by

Bachawat, J. The short point arising for our decision in this case is whether the special leave to appeal granted to the appellant on August 21. 1962 should be revoked on account of non-compli· ance with the provisions of 0.13, r. 2 of the Supreme Court Rules, 1950. -

The respondent was cashier in the employ of the Amritsar

Branch of the appellant Bank. He was suspended on May 5, .1952 and finally dismissed from the service of the appellant on January 24, 1959. In the meantime, he was prosecuted for offences under ss. 408 and 420 of the Indian Penal Code. He was acquitted by the Trial Maiistrate on March 21, 1955, and revision petition against the order of acquittal was dismissed by the Additional Sessions Judge on June 23, 1955. On January 9, 1961, he filed petition under s. 33(C) (2) of the Industrial Disputes Act, 1947 before the Presiding officer of the Central Government Labour Court, Delhi, claiming from the appellant payment of sum of Rs. 16,000 in terms of paragraph 521(2)(c) of the Bank Award, including full salary and allowance from the date of suspension to the date of termination of his service. By an order dated March 28, 1961, the Labour Court allowed the claim to the extent of Rs. 375 only, and dismissed the rest of the claim. On May 29, 1961, the respondent filed petition in the Punjab High Court I! under Art. 227 of the Constitution against the order of the Labour Court. By an order dated February 23, 1962 learned single Judge of the Punjab High Court quashed the order of the Labour Court, and directed it to decide the matter afresh in accordance with law. the High Court held that by giying an erroneous decision with regard to the effect and scope of paragraph 521 of the Bank J! Award and the decision of the Trial Magistrate acquitting the respondent, the Labour Court failed to exercise jurisdiction and to give effeet to the provisions of paragraph 521 of the Award and in the circumstances, on true interpretation of Art. 227 of the Constitution the High Court had power to quash the ijllpugned order. On April 30, 1962, the appellant filed before the Circuit Bench of the Punjab High _Court at Delhi, petition praying for issue of certificate under Arts. 132(1) and 133 of the Constitu-tion certifying that the case involved substantial questions of law as to the interpretation of Art. 227 of the Constitution and was otherwise fit one for aweal to this Court. The petition was return-ed for correction of defects, and was represented on May 5, 1962. On June 1, 1962, the petition was again returned to the appellant with an intimation that the same should be presented at Chandigarh.

Thereafter, the appellant did not proceed with the petition, and did not move the High Court for the issue of certificate under Arts. 132( l) and 133. On July 7, 1962, the appellant presented in this Court petition for special leave to appeal. In this peti· lion, the appellant raised various questions of law as to tho proper interpretation of Art. 227 of the Constitution, and also set out the facts relating to the presentation of the petition under Arts. 132(1) and 133. On August 21, 1962, the appellant was granted ex parte special leave to appeal under Art. 136 of tho' Constitution. In his statement of case, the respondent contend-ed, inter alia, that the special leave granted to the appellant was liable to be revoked .. inasmuch as the leave was obtained without filing an application for exemption from moving the High Court for certificate of fitness under Art. 132 of the Constitution On July 18, 1964, the respondent also filed an application praying for revocation of the special leave. The contention of the respondent is that the special leave should be revoked, inas-D much as the same was obtained without complying with the proVi-sions of 0. 13, r. 2 of the Supreme Court Rules, which reads thus:"Where an appeal lies to the Supreme Court on certificate issued by the High Court or other tribunal no application to the Supreme Court for special leave shall be entertained unless the High Court or the tribunal con-cerned has first been moved and it has refused to grant the certificate."

Now. no appeal lay to this Court under Art. 133 of the Con-

stitution from the judgment of the learned single Judge of the r Punjab High Court. But as the appeal involves substantial question of law as to the interpretation of Art. 227 of the Consti-tution. it would have lain on certificate issued by the High Court under Art. 132 of the Constitution. The appellant did not move the High Court for the issue of the certificate, though it had earlier presented petition praying for the grant of the certificate on this footing. In view of O. 13, r. 2, no application to this Court for special leave to appeal in this case could be entertained, unless the High Court had been first moved and had refused to grant the certificate. Under 0. 45, r. 1 of the Supreme Court Rules. this Court could, for sufficient reasons shown, excuse the appellant from compliance with the requirements of 0. 13, r. 2. Up till now. the appellant has not applied to this Court for exemption from compliance with 0. 13, r. 2. In the absence of any order of exemption, 0. 13, r. 2 applies with full force, and peremptorily

enjoiru. that no application to this Court for special leave to appeal

shall be entertained. "The rule is mandatory. The special leave to appeal being obtained in contravention of the rule is liable to be revoked

Relying on the case of Union of India v. Kishorilal Gupta & . Bros ( 1), Mr. Bhasin contends that the leave should not be revoked at this late stage. Jn that case, the special leave to appeal from judgment of single Judge of the High Court .had been obtained without first appealing to an appellate Bench of the High Court. Though the leave could have been revoked, if the objection were taken at the earliest opportunity, an application for revocation of the leave made after inordinate delay was dismissed on the ground that the revocation at the late stage would prejudice the appellant; for if the objection had been taken at the earl:%t point of time, the appellant would have had the opportunity 115' prefer Letters Patent Appeal and the appellant could not be made to suffer for the. default of the respondents. In that case, the special leave had not been obtained in contravention of any mandatory rule. ~fore-D over, the delay in filing the application for revocation had pre-judiced the appellant. In the instant case, the special leave to appeal was obtained in contravention of the mandatory proVisions of 0.13, r. 2. Moreover, it is.not shown that the appellant suffer-ed any prejudice .for any default of the respondent or any delay in raising the objection. ·

We direct that the special leave to appeal granted to tho appel-lant be revoked. The order of stay, if any, granted by this Court stands vacated. The parties will pay and bear their own costs vf the appeal.

Special leave revok!'d.