S.C : The certificate on the basis of which this appeal is filed is issued by a learned single judge of the High Court of Bombay under Art. 134A

Supreme Court Of India

State Bank Of India & Anr. vs. State Bank Of India Employees’ Union & Anr.

Sections 261, Art. 133, Art. 134A

E. S. Venkataramiah & K. N. Singh, JJ.

Civil Misc. Petition No. 19065 of 1987, in Civil Appeal No. 1713 of 1987

15th September, 1987

Counsel Appeared

F. D. Damania with Atul Tewari & Ms. Bina Gupta, for the Petitioners

By the court

The certificate on the basis of which this appeal is filed is issued by a learned single judge of the High Court of Bombay under Art. 134A of the Constitution in respect of an order passed by him in a writ petition in which the employees of the State Bank of India had questioned the right of the management to fix the hours of work and the hours of recess and its right to stagger the period of recess and had prayed for other consequential reliefs. The learned single judge allowed the petition following certain earlier decisions of the High Court rendered by the Division Benches. He, however, proceeded to grant a certificate of fitness to file an appeal against his decision before this Court following an earlier order of a Division Bench granting such a certificate in respect of one of those earlier decisions. He issued the certificate under Art. 134A of the Constitution without referring to the article under which the appeal could be filed. Art. 134A of the Constitution reads thus “134A. Every High Court, passing or making a judgment, decree, final order, or sentence, referred to in cl. ( 1) of Art. 132 or cl. (1) of Art. 133, or cl. (1) of Art. 134,—(a) may, if it deems fit so to do, on its own motion; and (b) shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence, determine, as soon as may be, after such passing or making, the question whether a certificate of the nature referred to in cl. (1) of Art. 132, or cl. (1) of Art. 133 or, as the case may be, sub-cl. (c) of cl. (1) of Art. 134, may be given in respect of that case.”

2. The certificate contemplated under Art. 134A of the Constitution can only be a certificate which is referred to in cl. (1) of Art. 132 or in cl. (1) of Art. 133 or in sub-cl. (c) of cl. (1) of Art. 134 of the Constitution. This is quite obvious from the language of Art. 134A of the Constitution. This case does not fall either under Art. 132(1) or under sub-cl. (c) of Art. 134(l) as it neither involves a substantial question of law as to the interpretation of the Constitution nor is it a criminal proceeding. It can only fall, if at all, under Art. 133(1) of the Constitution. Art. 133 of the Constitution reads : “133. (1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies under Art. 134A (a) that the case involves a substantial question of law of general importance; and (b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court. (2) Notwithstanding anything in Art. 132, any party appealing to the Supreme Court under cl. (1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided. (3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one judge of a High Court.” Clause (3) of Art. 133 says that notwithstanding anything in that article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one judge of the High Court. Before theintroduction of Art. 134A of the Constitution by the Forty-fourth Amendment of the Constitution” there was no express provision in Arts. 132, 133 and 134 of the Constitution regarding the time and manner in which an application for a certificate under any of those articles could be made before the High Court. There was also a doubt as to the power of the High Court to issue a certificate suo motu under any of those articles. Art. 134A was enacted to make good the said deficiencies. Art. 134A does not constitute an independent provision under which a certificate can be issued. It is ancillary to Art. 132(1), Art. 133(1) and Art. 134(1)(c) of the Constitution. That is the reason for the use of the words “if the High Court certifies under Art. 134A” in Art. 132(1) and Art. 133(1) and for the use of the words “certifies under Art. 134A” in Art. 134(1)(c). The High Court can issue a certificate only when it is satisfied that the conditions in Art. 132 or Art. 133 or Art. 134 of the Constitution, as the case may be, are satisfied. In the instant case, such a certificate could not have been issued by reason of cl. (3) of Art. 133 of the Constitution by the learned single judge.

The fact that in a similar case a certificate had been issued by Division Bench of the High Court consisting of two judges in a case decided by the Division Bench did not empower the single judge to issue a certificate under Art. 133(1) of the Constitution in a case decided by him. The restriction placed by cl. (3) of Art. 133 of the Constitution could not be got over by relying upon the order of the Division Bench.

We, therefore, revoke the certificate. This petition of appeal may, however, be treated as a special leave petition under Art. 136 of the Constitution and posted for preliminary hearing.

[Citation : 169 ITR 675]

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