1. Employment dispute — Claim under Section 33-C(2), Industrial Disputes Act — High Court order under Article 227 — Special leave granted without moving High Court for certificate. (Para 1 , 2 )
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1964 Supreme(SC) 322
SUPREME COURT OF INDIA
26th November 1964
P.B. GAJENDRAGADKAR, C.J.I., M. HIDAYATULLAH, J.C. SHAH, S.M. SIKRI AND R.S. BACHAWAT, JJ .
Management of Hindustan Commercial Bank Ltd., Kanpur, Appellant
Versus
Bhagwan Dass, Respondent.
Civil Appeal No. 58 of 1964.
Advocates appeared
Mr. T. R. Bhasin, Advocate, for Appellant; M / s. M. K. Ramamurthi, D. P. Singh, K. K. Garg and S. C. Agarwala, Advocates of M/s. Ramamurthi and Co., for Respondent.
Advocates:
D.P.Singh, K.K.Garg, M.K.RAMAMURTHY, S.C.AGRAWAL, T.R.Bhasin
D.P.Singh, K.K.Garg, M.K.RAMAMURTHY, S.C.AGRAWAL, T.R.Bhasin
Special leave to appeal under Article 136 is liable to be revoked if obtained in contravention of the mandatory requirement under Order 13, Rule 2 of the Supreme Court Rules, 1950, which requires the High Court to be moved for a certificate first, unless an exemption is granted.
Headnote:(A) Supreme Court Rules, 1950 - Order 13, Rule 2 - Constitution of India - Articles 132, 133, 136 and 227 - Special leave to appeal - Non-compliance with mandatory rule - Revocation of leave - Where an appeal lies to the Supreme Court on a certificate issued by the High Court or other tribunal, no application for special leave shall be entertained unless the High Court or the tribunal concerned has first been moved and it has refused to grant the certificate - The rule is mandatory and peremptorily enjoins compliance; special leave obtained in contravention of this rule is liable to be revoked. (Para 3)
(B) Supreme Court Rules, 1950 - Order 45, Rule 1 - Exemption from compliance - The Court may, for sufficient reasons shown, excuse a party from compliance with the requirements of Order 13, Rule 2 - In the absence of an order of exemption, Order 13, Rule 2 applies with full force. (Para 3)
Facts of the case:
An employee was dismissed from service and subsequently filed a claim for payment under the Industrial Disputes Act, 1947. The Labour Court's order was quashed by the High Court under Article 227 of the Constitution. The employer sought a certificate of fitness from the High Court to appeal to the Supreme Court but did not proceed with the petition after it was returned for defects. Subsequently, the employer obtained ex parte special leave to appeal from the Supreme Court under Article 136 without having first obtained the certificate from the High Court or seeking an exemption from the Supreme Court to bypass this requirement.
Findings of Court:
The court found that since the appeal involved a substantial question of law as to the interpretation of Article 227 of the Constitution, it would have laid on a certificate issued by the High Court under Article 132. Because the employer failed to move the High Court for the certificate and did not apply for an exemption under Order 45, Rule 1 of the Supreme Court Rules, the application for special leave was entertained in contravention of the mandatory provisions of Order 13, Rule 2.
Issues: Whether the special leave to appeal granted to the appellant should be revoked on account of non-compliance with the provisions of Order 13, Rule 2 of the Supreme Court Rules, 1950.
Ratio Decidendi: Order 13, Rule 2 of the Supreme Court Rules is mandatory and prohibits the entertainment of an application for special leave unless the High Court has first been moved for a certificate and has refused to grant it. Special leave obtained in violation of this mandatory rule, without a supporting order of exemption under Order 45, Rule 1, is liable to be revoked.
Result: Special leave to appeal revoked.
Legal Category Hierarchy
Table of Contents
2. Respondent seeks revocation of special leave for non-compliance with Order 13, Rule 2, SC Rules; Appellant argues against revocation due to the late stage of proceedings. (Para 2 , 4 )
3. Order 13, Rule 2 is mandatory, requiring the High Court to be moved for a certificate before special leave is entertained, unless an exemption is granted. (Para 3 )
4. Special leave to appeal obtained in contravention of the mandatory requirement to first move the High Court for a certificate under Order 13, Rule 2, is liable to be revoked. (Para 3 )
5. Application for revocation allowed — Special leave to appeal revoked — Stay vacated. (Para 5 )
6. Is Order 13, Rule 2 of the SC Rules, 1950, mandatory regarding the requirement to move the High Court for a certificate before seeking special leave?
Yes, the rule is mandatory. It peremptorily enjoins that no application for special leave to appeal shall be entertained unless the High Court or tribunal concerned has first been moved and has refused to grant the certificate. (Para 3 )
7. Can the Supreme Court excuse a party from complying with Order 13, Rule 2 of the SC Rules?
Yes, under Order 45, Rule 1 of the SC Rules, the Court can excuse a party from compliance with the requirements of Order 13, Rule 2, provided sufficient reasons are shown. (Para 3 )
8. Does the late stage of proceedings prevent the revocation of special leave obtained in contravention of a mandatory rule?
Not necessarily. While delay may prevent revocation if it causes prejudice to the appellant in cases where no mandatory rule was violated, leave obtained in contravention of a mandatory rule is liable to be revoked if no prejudice is shown. (Para 4 )
Judgment
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- compliance with the provisions of O 13, R. 2 of the SC Rules, 1950.
2. The respondent was a 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 Magistrate on March 21, 1955, and a revision petition against the order of acquittal was dismissed by the Additional Sessions Judge on June 23, 1955. On January 9, 1961, he filed a petition under Section 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 a sum of Rupees 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 a petition in the Punjab High Court under Art. 227 of the Constitution against the order of the Labour Court. By an order dated February 23, 1962, a 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 giving an erroneous decision with regard to the effect and scope of paragraph 521 of the Bank Award and the decision of the Trial Magistrate acquitting the respondent, the Labour Court failed to exercise jurisdiction and to give effect to the provisions of paragraph 521 of the Award and in the circumstances, on a true interpretation of Art. 227 of the Constitution the High Court had power to quash the impugned order. On April 30, 1962, the appellant filed before the Circuit Bench of the Punjab High Court at Delhi, a petition praying for issue of a certificate under Arts. 132(1) and 133 of the Constitution certifying that the case involved substantial questions of law as to the interpretation of Art. 227 of the Constitution and was otherwise a fit one for appeal to this Court. The petition was returned 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 a certificate under Arts. 132(1) and 133. On July 7, 1962, the appellant presented in this Court a petition for special leave to appeal. In this petition, the appellant raised various questions of law as to the 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 the Constitution. ln his statement of case, the respondent contended, 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 a 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, inasmuch as the same was obtained without complying with the provisions of O. 13, R. 2 of the SC Rules, which reads thus :
"Where an appeal lies to the SC on a certificate issued by the High Court or other tribunal no application to the SC for special leave shall b
