(1) This is an application for review of the order passed by this Court on 13th November 1959 in S. C. P. No. 160 of 1959 granting leave to the petitioners to appeal to the Supreme Court from the decision of this Court in Writ App. Nos. 49 and 50 of 1959.* The prayer is to omit the direction contained in the order that the petitioners should pay in any event the costs of the respondents in the Supreme Court appeal. The ground on which the review is sought is that our direction is neither in accordance with law nor within the jurisdiction of this Court to make. The contention is that this Court has no jurisdiction to make an order relating to the costs of appeal in the Supreme Court, which is a matter entirely within the jurisdiction of the Supreme Court.
(2) When the petitioners' application for leave to appeal to the Supreme Court came on or hearing before us, while we considered that the case involved a question of considerable importance, particularly from the point of view of the managements of industrial establishments, we thought that it was not a case in which we would be justified in granting leave unless the petitioners were prepared to pay the costs of the Supreme Court appeal to the respondents in any event. We were then fully aware that we could not make such a direction except with the consent of the petitioner. We therefore made a suggestion to the petitioners' counsel that the petitioners may agree to such a direction. Though counsel protested at first, we formed the impression that eventually he agreed on behalf of the petitioners. That was why we made that direction though we did not expressly say that it was by consent of the petitioners. Now before us learned counsel has stated that he did not consent on behalf of the petitioners. We accept his statement. It is likely that the impression left on our mind was not correct.
(3) The question is whether in these circumstances, namely, that the petitioners are not willing to pay the costs to the respondents in any event, we should grant leave to appeal under Art. 133(1)(c) of the Constitution. It is true that the question is of importance to the managements because they do not want to be met with demands made by different Unions of workers in their establishments. But we cannot say it is of equal importance to the respondents. The number of employees concerned in the reference to the Industrial Tribunal is 47. The total strength of the clerical staff in the mills is about 700 and the total number of workers is about 14700. The dispute which related to the 47 employees was espoused by a Union called the B and C Mill Staff Union which has a membership of 434 employees on the clerical staff. In the counter affidavit filed by the respondents in the application for leave to appeal to the Supreme Court, they stated that the Union which has a membership of 434 clerks get by way of subscription only a sum of about Rs. 200 for a month and out of this an amount of Rs. 150 per month is spent towards the establishment charges and other expenses connected with Union work and the balance of Rs. 75 is hardly sufficient for meeting any contingencies that may arise in the course of Union work and that it would be very difficult for the Union to find funds for the conduct of the appeal before the Supreme Court. It is true that the inability of the respondents to find funds cannot by itself be a valid objection to the grant of leave to appeal to the Supreme Court if under the Constitution the applicant is entitled to such leave as of right. But in a case where it is in the discretion of this Court to certify that the case is a fit case for appeal, it will not be improper to consider whether the question is equally important to both parties to such extent that would justify the grant of a certificate of fitness. With great respect we agree with the following observations in the Full Bench decision in Raja Rajeswara Sethupati v. Thiruneelakanta Servai, 44 Mad LJ 217 : AIR 1923 Mad 232 a decision which was very much relied on by learned counsel for the petitioners:
'During the hearing of these application we asked the appellant whether he would be prepared to agree to a condition that he should be liable for the costs of the defendants as between solicitor client in any event. This by his counsel he definitely refused. It is possible that it would not have been right for us to give leave with such a condition even if agreed to, as if the decision Clarke v. Brajendra Kissore, 13 Cal WN 1127 is correct it might be said that to hold so would be usurping a power reserved to the Privy Council.......... I think in such cases the only safe course is to refuse leave stating, if it be the case, that the point in issue appears to be one of general importance but not of sufficient importance to the proposed respondent to warrant this Court in putting him to the expense of an appeal to the highest tribunal.'
(4) In our opinion the point in issue, though it appears to be one of general importance, is not of sufficient importance to the respondents to warrant this Court in putting them to the expense of an appeal to the Supreme Court.
(5) We therefore set aside the order made by us on 13th November 1959 and dismiss S. C. P. No. 160 of 1959. There will be no order as to costs.
(6) Order set aside.