Civil Misc. Petn. No. 19065 of 1987

15th September, 1987.

Petitioner Counsel: Mr. Atul Tewari and Ms. Bina Gupta, Advocates with him, for s.

JUDGMENT

ORDER :-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 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 hourse of recess and its right to stagger the period of recess and had prayed for other conseqwntial. 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 decision. He issued the certificate under Art. 134A of the Constitution without referring to the Article under which the appeal could be filed. Article 134A of the Constitution Constitution reads thus :

"134A. Every High Court, passing or making a judgment, decree, final order or sentence. referred to in clause (1) of Article 132 or clause (1) of Article 133, or Clause (1) of article 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 clause (1) of Article 132 or clause (1) of Article 133 or, as the case may be, sub-clause (c) of clause (1) of Article 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) Art. 134 (1) as it neither involves a substantial question of law as to the interpretation of the Consitution nor it is a criminal proceeding. It can only fall., if at all, under Art. 133(1) of the Constitution. Article, 133 of the Constitution reads thus :

" 133. (1) An appeal shall lie to the Supreme Court from any judgment, decree of 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."

3. Clause (3) of Art. 133 says that notwithstanding anything in that Article no judgment, decree or final order of one Judge of the High Court. Before the introduction of Art. 134A of the Constitution by the Forty-fourth Amentment 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 artiles 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. Article 134A was enacted to make good the said deficiencies. Article 134A does not constitute an independent provision under which a certificate can 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 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)9c). 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.

4. The, fact that in a similar case a certificate had been issued by a 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 issued the certificate under Art. 133(1) of the Constitution in a case decided by him. The restriction placed by cl. (3) of Art. 1343 of the Constitution could not be got over by relying upon the order of the Division Bench.

5. We, therefore, revoke the certificate. This petition of appeal may, however, he treated as a Special Leave Petition under Art. 136 of the Constituion and posted for preliminary hearing.

Order Accordingly