NEW BHOPAL TEXTILES LTD. Vs. STATE

JUDGEMENT

(1.) THIS is an application by the loosing party (in a writ application, and also in a Letters Patent Appeal from it) for leave to appeal to the Supreme Court on two grounds; the first, that under Article 133(I)(b) they are entitled to a certificate straightway and secondly, that in any event, the appeal involves a substantial question of law The first ground takes us into a consideration as to whether the Single Judge of a High Court, from whose decision a Letters Patent Appeal is filed, is the Court immediately be -low; and the second, into whether the Petitioner's belated objection to a procedural step taken by the Industrial Tribunal does really involve a substantial question of law -

(2.) THE facts of this case have been set out at some length both in the judgment of the Single Judge in Civil Misc. Case No. 94 of 1956 a petition by the present applicant, for a writ of certiorari and supervisory order and in the Letters Patent Appeal No. 7 of 1959 from the Single Judge's judgment rejecting that petition. The applicants run a textile mill; there were disputes between them and their employees which were referred to a Tribunal. Three headings were set out in the reference, out of which the Tribunal took up one for separate consideration with the initial acquiescence of the present applicants; they objected at a later stage, but were ruled out by the Tribunal. The award on this heading (treated as a separate dispute) was favourable to the employees; they became less enthusiastic about decision on the two other headings, which might have turned out to their disadvantage. Certainly, this was a surprise to the applicants, who seem to have been banking on a balance of decisions on all the three headings, the inconvenience, if any, caused by that on one being compensated by the advantage in that in regard to the two others. The crucial question both in the original case and in the Letters Patent Appeal was, whether by splitting up the reference with the initial acquiescence of the present applicant, the Tribunal had gone beyond its reference, and this step was one affecting its basis jurisdiction not curable by the applicant's acquiescence. This matter has been considered at some length in paragraphs II to 14 of the judgment in the Letters Patent Appeal which negatives this and holds that the real inconvenience to the applicants had been the result of their accepting procedural measure which the tribunal was competent to take.

(3.) BUT automatically, to get a certificate another condition has also to be fulfilled, namely, the order appealed from should not be one of affirmance of the decision of "the Court immediately below". Usually, there is little doubt as to the identity and status of the Court immediately below, or in other words, the subordination or otherwise of the Court, the order of which is itself the subject matter in appeal or revision of the final order sought to be challenged in the appeal to the Supreme Court. But where a larger Bench of a High Court is reconsidering the decision of a Single Judge, the position is not clear and, in fact, there has been difference of opinion between various High Courts. There may be different circumstances, in which the larger Bench is acting. When it is a reference proper to the larger Bench, the question of subordination does not arise because there is, strictly speaking, no final decision given by the smaller or the Single Bench. But when it is a Letters Patent Appeal, there is all the appearance of subordination, and generally speaking, one would say that the Single Bench is the Court immediately below the larger Bench that entertains the appeal. Firstly, the Single Bench may be discharging the functions of a regular Civil or Criminal Court of original jurisdiction, the most common example being when in the Presidency towns as they used to be, the original side of the High Court deals with certain litigation at the first instance. This does not happen in the High Courts outside the Presidency. Where it does happen, there is a clear case of subordination to the larger Bench that hears the appeal. Secondly, the single Judge might have decided a case in appeal from the decision of the Courts below and the aggrieved party takes it up before a larger Bench in a Letters Parent Appeal, after obtaining the leave of the Single Bench itself. Thirdly, where a decision of the Single Bench is, as in the present case, a decision on an original petition, the Letters Patent Appeal is filed without such certificate. In regard to whether in "secondly" and "thirdly" the Single Bench is the "Court immediately below", there is a difference of opinion between the High Courts which, to this day, remains unresolved.