Case Note & Summary
The dispute arose out of an industrial claim by a cashier of the appellant bank's Amritsar branch, who was suspended in 1952 and dismissed in 1959. The respondent filed a claim under Section 33(C)(2) of the Industrial Disputes Act, 1947 before the Central Government Labour Court, Delhi, seeking payment of Rs. 16,000 under paragraph 521(2)(c) of the Bank Award, including full salary and allowances. The Labour Court, by order dated March 28, 1961, allowed only Rs. 375 and dismissed the rest. The respondent then filed a writ petition under Article 227 of the Constitution in the Punjab High Court, which by order dated February 23, 1962 quashed the Labour Court order and directed fresh decision, holding that the Labour Court had failed to exercise jurisdiction by misinterpreting the Bank Award and the effect of the respondent's acquittal. The appellant bank sought to appeal to the Supreme Court. It initially filed a petition before the Circuit Bench of the Punjab High Court at Delhi on April 30, 1962, seeking a certificate under Articles 132(1) and 133 of the Constitution. That petition was returned for defects, represented, and then returned again on June 1, 1962 with the intimation that it should be presented at Chandigarh. The appellant did not proceed with that petition and did not move the High Court for a certificate. Instead, on July 7, 1962, the appellant presented a petition for special leave to appeal in the Supreme Court, raising questions about the interpretation of Article 227. On August 21, 1962, the Supreme Court granted ex parte special leave under Article 136. The respondent contended that the special leave was liable to be revoked because it was obtained without complying with Order 13 Rule 2 of the Supreme Court Rules, 1950, which required that where an appeal lies on a certificate issued by a High Court, no application for special leave shall be entertained unless the High Court has first been moved and refused the certificate. The respondent also pointed out that the appellant had not applied for exemption under Order 45 Rule 1. The appellant relied on Union of India v. Kishorilal Gupta & Bros, arguing that the leave should not be revoked at a late stage because no prejudice was shown. The Court held that no appeal lay under Article 133 from the single judge's order, but an appeal would have lain on a certificate under Article 132 because the case involved a substantial question of law as to the interpretation of Article 227. Since the appellant had not moved the High Court for a certificate and had not obtained an exemption under Order 45 Rule 1, Order 13 Rule 2 applied with full force. The Court distinguished Kishorilal Gupta on the ground that there the special leave had not been obtained in contravention of any mandatory rule and delay had prejudiced the appellant; here, mandatory rule was breached and no prejudice was shown. The Court therefore directed the special leave to be revoked, vacated any stay, and ordered parties to bear their own costs.
Headnote
A) Supreme Court Practice - Special Leave to Appeal - Mandatory Requirement of Prior High Court Certificate - Supreme Court Rules, 1950, Order 13 Rule 2 - An appeal would have lain to the Supreme Court on a certificate under Article 132 of the Constitution because the case involved a substantial question of law as to the interpretation of Article 227 - The appellant obtained ex parte special leave under Article 136 without first moving the High Court for a certificate and without applying for exemption under Order 45 Rule 1 - Held that Order 13 Rule 2 is mandatory and special leave obtained in contravention is liable to be revoked; exemption under Order 45 Rule 1 cannot be presumed absent an application (Paras not mentioned).
Issue of Consideration
Whether the special leave to appeal granted to the appellant on August 21, 1962 should be revoked for non-compliance with Order 13 Rule 2 of the Supreme Court Rules, 1950, where the appellant failed to first move the High Court for a certificate under Article 132(1) and failed to apply for exemption under Order 45 Rule 1.
Final Decision
Special leave to appeal granted on August 21, 1962 was revoked. Order of stay, if any, stood vacated. Parties to bear their own costs.
Law Points
- Order 13 Rule 2 of Supreme Court Rules
- 1950 is mandatory
- prior High Court certificate required before special leave under Article 136 when appeal lies on certificate under Article 132
- exemption under Order 45 Rule 1 must be obtained for sufficient reasons
- special leave obtained in contravention liable to revocation
- Union of India v. Kishorilal Gupta distinguished as no mandatory rule breached and delay prejudiced appellant
Case Details
1964 LawText (SC) (11) 25
Civil Appeal No. 58 of 1964 and C.M.P. No. 2174 of 1964
R.S. Bachawat, P.B. Gajendragadkar, M. Hidayatullah, J.C. Shah, S.M. Sikri
1965 AIR 1142, 1965 SCR (2) 265
T. R. Bhasin (Appellant); M. K. Ramamurthi, D. P. Singh, R. K. Garg, S. C. Agarwala (Respondent)
Management of the Hindusthan Commercial Bank Ltd., Kanpur
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Nature of Litigation
Civil appeal by special leave from order of Punjab High Court in a writ petition under Article 227 quashing Labour Court order; application for revocation of special leave on ground of non-compliance with Supreme Court Rules.
Remedy Sought
Appellant sought special leave to appeal against High Court order; respondent sought revocation of special leave for non-compliance with Order 13 Rule 2 of Supreme Court Rules.
Filing Reason
Appellant obtained ex-parte special leave to appeal without first moving High Court for certificate under Articles 132(1) and 133 and without applying for exemption under Order 45 Rule 1, contravening mandatory Order 13 Rule 2.
Previous Decisions
Labour Court allowed respondent's claim to Rs. 375 only and dismissed rest on March 28, 1961; Punjab High Court single judge quashed Labour Court order and directed fresh decision on February 23, 1962; appellant's petition for certificate under Articles 132(1) and 133 was returned, and appellant did not proceed with it; thereafter obtained special leave ex parte on August 21, 1962.
Issues
Whether the special leave to appeal granted to the appellant should be revoked for non-compliance with Order 13 Rule 2 of the Supreme Court Rules, 1950.
Whether the appellant was required to first move the High Court for a certificate under Article 132(1) before seeking special leave under Article 136, and whether failure to apply for exemption under Order 45 Rule 1 was fatal.
Submissions/Arguments
Respondent contended special leave liable to revocation because leave was obtained without filing an application for exemption from moving High Court for a certificate under Article 132, and without complying with Order 13 Rule 2.
Appellant relied on Union of India v. Kishorilal Gupta & Bros, arguing leave should not be revoked at late stage because no prejudice was shown and revocation would prejudice appellant.
Court rejected appellant's reliance, distinguishing that case because there special leave had not been obtained in contravention of any mandatory rule and delay had prejudiced appellant; here mandatory rule breached and no prejudice shown.
Ratio Decidendi
Order 13 Rule 2 of Supreme Court Rules, 1950 is mandatory: where an appeal lies to Supreme Court on a certificate issued by High Court or other tribunal, no application for special leave can be entertained unless High Court or tribunal concerned has first been moved and refused to grant certificate. Under Order 45 Rule 1, Court may excuse compliance for sufficient reasons, but no exemption application was made. Special leave obtained in contravention is liable to revocation. Union of India v. Kishorilal Gupta distinguished because there no mandatory rule contravened and delay prejudiced appellant; here mandatory rule breached and no prejudice shown.
Judgment Excerpts
Where an appeal lies to the Supreme Court on a 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 concerned has first been moved and it has refused to grant the certificate.
The rule is mandatory. The special leave to appeal being obtained in contravention of the rule is liable to be revoked.
In the instant case, the special leave to appeal was obtained in contravention of the mandatory provisions of 0.13, r. 2.
Procedural History
Respondent was cashier at Amritsar Branch of appellant Bank; suspended on May 5, 1952; dismissed on January 24, 1959; prosecuted under Sections 408 and 420 IPC; acquitted on March 21, 1955; revision dismissed June 23, 1955; respondent filed claim under Section 33(C)(2) of Industrial Disputes Act on January 9, 1961 before Labour Court, Delhi; Labour Court allowed Rs. 375 only on March 28, 1961; respondent filed writ petition under Article 227 in Punjab High Court on May 29, 1961; High Court quashed Labour Court order on February 23, 1962; appellant filed petition for certificate under Articles 132(1) and 133 on April 30, 1962 before Circuit Bench at Delhi; returned for correction, represented May 5, 1962; returned June 1, 1962 with intimation to present at Chandigarh; appellant did not proceed; appellant presented special leave petition in Supreme Court on July 7, 1962; ex parte special leave granted on August 21, 1962; respondent filed revocation application on July 18, 1964; Supreme Court revoked special leave on November 26, 1964.
Acts & Sections
- Supreme Court Rules, 1950: Order 13 Rule 2, Order 45 Rule 1
- Constitution of India: Article 132(1), Article 133, Article 136, Article 227
- Industrial Disputes Act, 1947: Section 33(C)(2)
- Indian Penal Code: Section 408, Section 420
