Judgement

HEGDE, J.:- In the aforementioned appeal by special leave, the point for consideration is whether the Labour Court Lucknow, was right in its conclusion that it was not competent to deal with Misc. Case No. 22/63 on its file, an application under Section 33 (3) of the Industrial Disputes Act 1947.

2. In 196l, the appellant was a clerk working in the Dehradun branch of the State Bank of India, the respondent herein. In connection with certain alleged misconduct the respondent held a departmental enquiry against him; came to the conclusion that he was guilty of the charge levelled against him and for the said offence it proposed to dismiss him from its service. But as at that time an industrial dispute between the respondent and its workmen was pending before the National Industrial Tribunal in Ref. No. 1 of 1960 (which will hereinafter be referred to as the industrial dispute), and the appellant being one of the office bearers of a recognised trade union contracted with the respondent and consequently a protected workman , it applied on April 27, 1962 under Section 33 (3) to the National Industrial Tribunal for permission to discharge him from Service. On the authority of an order made by the Central Government on 23rd December, 1960 under Sub-section (2) of Sec. 33B the National Industrial Tribunal, Bombay transferred the said application to the Labour Court, Delhi. The National Industrial Tribunal Bombay, made its award in the aforementioned Reference on June 7, l962. The same was published in the official gazette on June l3, 1962 and it came into force on July 31, 1962 Thereafter on February 23, 1963 the Government of India transferred the respondent s application under S. 33 (3) pending before the Labour Court, Delhi, to the Labour Court Lucknow. That court dropped the said proceedings as per its order dated 10th February, 1965 holding that in view of the award in the Reference in question it had no competence to deal with that application. This order of the Labour Court was challenged by the appellant in Civil Misc. Writ Petition No. 619 of 1965 on the file of the Allahabad High Court. That petition was summarily dismissed. Thereafter he applied to that court for a certificate under Articles 232 (1) and 133 (1) (c) of the Constitution. During the pendency of that application, he moved this court on July 17, 1965 for special leave under Article 136 of the Constitution to appeal against the order of the Tribunal. Special leave was granted by this court on September 8, 1965. The application for certificate made before the Allahabad High Court was rejected by that court by its order dated September 13, 1965. No application for special leave under Article 136 was filed against that order.

3. When this appeal came up for hearing on a previous occasion, learned counsel for the respondent urged that the special leave granted should be revoked as the appellant had not appealed against the order made by the Allahabad High Court in his writ petition. Thereafter, the appellant moved this court for special leave against the order of the Allahabad High Court rejecting his writ petition. He also filed an application for condonation of the delay in submitting that special leave application.

4. We are not satisfied that there is any force in the preliminary objection taken by the learned Solicitor-General on behalf of the respondent. This case does not fall within the rule laid down by this court in Daryao v. State of U. P., 1962-1 SCR 574. As seen earlier, the High Court summarily dismissed the writ petition filed by the appellant. The order dismissing the writ petition was not a speaking order. Hence no question of res judicata arises. The learned Solicitor-General did not try to bring the present case within the rule laid down in Daryao s case, 1962-1 SCR 574. His contention was that the order of the High Court not having been, appealed against the same has become final and therefore it would be inappropriate for this court to gra