1. 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 Supreme Court 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 sections 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 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 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 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 Art. 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.
3. 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. In 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 Supreme Court Rules, which reads thus :
'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 grand the certificate.'
4. Now, no appeal lay to this Court under Art. 133 of the Constitution from the judgment of the learned single Judge of the Punjab High Court. But as the appeal involves a substantial question of law as to the interpretation of Art. 227 of the Constitution, it would have lain on a 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 a 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 O. 45, r. 1 of the Supreme Court Rules, this Court could, for sufficient reasons shown, excuse the appellant from compliance with the requirements of O. 13, r. 2. Up till now, the appellant has not applied to this Court for exemption from compliance with O. 13, r. 2. In the absence of any order of exemption, O. 13, r. 2 applies with full force, and peremptorily enjoins 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.
5. Relying on the case of Union of India v. Kishorilal Gupta & Bros : 1SCR493 , Mr. Bhasin contends that the leave should not be revoked at this late stage. In that case, the special leave to appeal from a judgment of a 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 earliest point of time, the appellant would have had the opportunity to prefer a 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. Moreover, the delay in filing the application for revocation had prejudiced the appellant. In the instant case, the special leave to appeal was obtained in contravention of the mandatory provisions of O. 13, r. 2. Moreover, it not shown that the appellant suffered any prejudice for any default of the respondent or any delay in raising the objection.
6. We direct that the special leave to appeal granted to the appellant be revoked. The order of stay, if any granted by this Court stands vacated. The parties will pay and bear their own costs of the appeal.
7. Special leave revoked.