Management of Hindusthan Commercial Bank Ltd. vs Bhagwan Dass

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 58 of 1964

Decision Date: 26 November, 1964

Coram: R.S. Bachawat, P.B. Gajendragadkar, M. Hidayatullah, J.C. Shah, S.M. Sikri

In this case the Court noted that the matter concerned a petition filed under Article 227 by the respondent, through which the High Court had set aside an order of the Labour Court. The petitioner, Management of the Hindusthan Commercial Bank Ltd., subsequently filed before the High Court a petition seeking a certificate under Articles 132(1) and 133 of the Constitution for leave to appeal to the Supreme Court. The High Court returned that petition, informing the petitioner that it should be presented at Chandigarh rather than at Delhi. The petitioner then failed to pursue that petition and instead applied for, and was granted, ex‑parte special leave to appeal under Article 136. The respondent contended that the special leave had been obtained in violation of Order 13, Rule 2 of the Supreme Court Rules, which requires that when an appeal to the Supreme Court depends on a certificate issued by a High Court or other tribunal, the Supreme Court may not entertain an application for special leave unless the High Court or tribunal has first been approached and has refused to grant the certificate. The respondent also argued that the petitioner had not applied for exemption from the requirement of moving the High Court, as permitted by Order 45, Rule 1 of the Supreme Court Rules, and therefore the special leave should be revoked. The Court held that Order 13, Rule 2 is a mandatory rule and, consequently, an application for special leave could not be entertained in the present circumstances because the High Court had not been moved and had not refused a certificate. While Order 45, Rule 1 allows the Supreme Court, for sufficient reasons shown, to excuse a party from complying with Order 13, Rule 2, the petitioner had made no application for such exemption. Accordingly, the Court concluded that the special leave to appeal obtained in contravention of Order 13, Rule 2 was liable to be revoked. The judgment cited the earlier decision in Union of India v. Kishore Lal Gupta (1960) 1 S.C.R. 493, 500, distinguishing it from the present case. The citation for this decision was recorded as 1965 AIR 1142 and 1965 S.C.R. (2) 265, with additional citator references provided.

and order, dated February 23, 1962, of the Punjab High Court in Civil Miscellaneous No. 1322 of 1961. Counsel for the appellant appeared, and counsel for the respondent also appeared. The judgment of the Court was delivered by Justice Bachawat. The immediate issue for determination was whether the special leave to appeal that had been granted to the appellant on August 21, 1962 ought to be set aside because the appellant had failed to obey the requirements of Order 13, rule 2 of the Supreme Court Rules, 1950. The respondent had been employed as a cashier in the Amritsar Branch of the appellant bank. He was suspended on May 5, 1952 and subsequently terminated on January 24, 1959. During the interval he faced criminal prosecution under sections 408 and 420 of the Indian Penal Code; the trial magistrate acquitted him on March 21, 1955, and a revision petition against that acquittal was dismissed by the Additional Sessions Judge on June 23, 1955. On January 9, 1961, the respondent instituted a petition under section 33(C)(2) of the Industrial Disputes Act, 1947 before the Presiding Officer of the Central Government Labour Court in Delhi, seeking payment of Rs. 16,000 pursuant to paragraph 521(2)(c) of the Bank Award, which included full salary and allowances from the date of suspension to the date of termination. The Labour Court, by an order dated March 28, 1961, allowed only Rs. 375 of the claim and rejected the balance. The respondent then filed a petition in the Punjab High Court on May 29, 1961, invoking Article 227 of the Constitution to challenge the Labour Court’s order. By an order dated February 23, 1962, a learned single Judge of the Punjab High Court set aside the Labour Court’s decision and directed it to reconsider the matter in accordance with law, holding that the Labour Court had erred in interpreting the scope of paragraph 521 of the Award and had failed to give effect to the acquittal granted by the Trial Magistrate, thereby exceeding its jurisdiction. The High Court concluded that, on a correct construction of Article 227, it possessed the 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 requesting the issuance of a certificate under Articles 132(1) and 133 of the Constitution, asserting that the case raised substantial questions of law, particularly concerning the interpretation of Article 227, and was otherwise suitable for appeal to this Court. The petition was returned to the appellant for rectification of defects, and it was subsequently re‑presented on May 5, 1962. On June

On June 1 , 1962 the petition was again returned to the appellant with a notice that it should be presented at Chandigarh. After that notice the appellant neither pursued the petition nor approached the High Court for a certificate under Articles 132(1) and 133 of the Constitution. Subsequently, on July 7 , 1962 the appellant filed in this Court a petition for special leave to appeal. In that petition the appellant raised several questions of law concerning the correct interpretation of Article 227 of the Constitution and also detailed the facts relating to the earlier petition filed under Articles 132(1) and 133. On August 21 , 1962 the appellant was granted ex parte special leave to appeal under Article 136 of the Constitution. In the respondent’s statement of case the respondent argued, inter alia, that the special leave should be revoked because it had been obtained without first filing an application for exemption from the requirement to move the High Court for a certificate of fitness under Article 132. On July 18 , 1964 the respondent filed an application seeking revocation of the special leave, contending that the leave must be set aside since it was granted in violation of Order 13, Rule 2 of the Supreme Court Rules, which provides that a special‑leave application will not be entertained unless the High Court or the concerned tribunal has first been approached and has refused to grant the certificate. Although no appeal lay to this Court under Article 133 from the judgment of the learned single judge of the Punjab High Court, the matter involved a substantial question of law relating to the interpretation of Article 227 and therefore would have required a certificate issued by the High Court under Article 132. Because the appellant did not move the High Court for such a certificate, Order 13, Rule 2 applied, disallowing any special‑leave application unless an exemption was first obtained. Order 45, Rule 1 permits this Court, for sufficient cause, to excuse the appellant from complying with Order 13, Rule 2, but the appellant has not applied for such exemption. Consequently, in the absence of an exemption order, Order 13, Rule 2 remains fully effective and strictly prohibits the entertainment of any application for special leave to appeal in this case.

The Court observed that the rule requiring compliance with Order 13, rule 2 was mandatory, and that a special leave to appeal obtained in violation of that rule was subject to revocation. Counsel for the appellant relied on the precedent set in Union of India v. Kishorilal Gupta & Bros, reported in 1960 I S·C·R 493, arguing that the leave should not be revoked at this late stage. In the cited case, the special leave to appeal from a judgment of a single High Court judge had been secured without first obtaining a certificate from an appellate bench of the High Court. Although the leave could have been revoked if an objection had been raised promptly, the Court there had dismissed a revocation application filed after a long delay, on the ground that revoking the leave at such a late stage would prejudice the appellant, because the appellant would have otherwise been able to file a Letters Patent Appeal and should not suffer for the respondents’ default. The Court emphasized that in that earlier case the special leave had not been granted in contravention of any mandatory rule, and that the delay in seeking revocation had itself caused prejudice to the appellant. In the present matter, however, the Court noted that the special leave to appeal had been obtained in direct contravention of the mandatory provisions of Order 13, rule 2, and that the appellant had not demonstrated any prejudice arising from any default by the respondent or from any delay in raising the objection. Consequently, the Court directed that the special leave to appeal previously granted to the appellant be revoked, that any stay order previously issued by the Court be vacated, and that each party bear its own costs. The special leave was thereby revoked, and the appeal was dismissed.