ARTICLE 136

A Project report from Secondary Data

Submitted to – Professor, Nageshwar Rao

Faculty of Constitutional Law; TNNLS

Submitted by- Mithelesh DK

Roll No. –BA0130038

Class – 2nd Year

Semester-4

1

Declaration

I do hereby declare that the project research entitled Article 136 submitted to the

Tamil Nadu National Law School in fulfillment of the requirement of the internal

component is a record of the original work done by me under the supervision and

guidance of Mr. Nageshwar Rao and that the project submitted has not been

formed on the basis of any other project submitted by any other university or

college.

Mithelesh Dk

BA0130038

2

CERTIFICATE

This is to certify that the project entitled Article 136 submitted to the Tamil Nadu

National Law School in fulfillment of the internal component done by Mithelesh

Dk under the supervision of Mr. Nageshwar Rao

Place: Tiruchirappalli Mr. Nageshwar Rao

Date: 30.4.2015

3

ACKNOWLEDGEMENT

Thanks to the Almighty who gave me the strength to accomplish the project with

sheer hard work and honesty. This research venture has been made possible due to

the generous co-operation of various persons. To list them all is not practicable,

even to repay them in words is beyond the domain of my lexicon.

May I observe the protocol to show my deep gratitude to the venerated Faculty-in-

charge Prof. Nageshwar Rao, for his kind gesture in allotting me such a

wonderful and elucidating research topic. Apart from that I would like to thank my

friends for their support and suggestions during the process of making this project.

4

Table of contents:

S.no Contents Page

no1 Introduction 62 Appeals by Special leave 73 Exercise of discretion 84 Scope of Article 136 115 Ground for SLP 136 Appeal in Constitutional/Civil cases 137 Appeal in Criminal Matters 168 Tribunals 179 Dismissal Of Appeal 2110 Conclusion 23

LIST OF ABBREVIATIONS USED:

5

AIR All India Records

SC Supreme Court

SCC Supreme Court Cases

C.P.C Civil Procedure Code

Cr.P.C Criminal Procedure Code

Pvt Private

Ltd Limited

O.N.G.C Oil Natural Gas Corporation

U.P Uttar Pradesh

P and H Punjab and Haryana

U.O.I Union of India

Cr.L.J Criminal Law Journal

M/s Messer’s

Assn Association

Supp Supplementary

A.P Andhra Pradesh

C.I.T Commissioner of Income Tax

Co Company

J & K Jammu and Kashmir

Rly Railway

Introduction:

6

Special leave means special permission to be granted by the Supreme Court to hear an appeal of

any part of the court which includes tribunals, Quasi-judicial Authority and Subordinate courts.

Article 136 of the Indian Constitution empowers the Supreme Court to grant in its discretion

Special leave to appeal from any judgment, decree, determination, sentence or order in any cause

or matter passed or made by any court, Judicial Authority or even any Quasi-Judicial Authority

in the territory of India under it in suitable cases the Supreme Court can even disregard the

limitations contained in Article 132 to Article 134 on its applicable jurisdiction and hear appeals

which it could not otherwise hear under those provisions.

The article vests very wide powers in Supreme Court. The power given under this article is in the

nature of a special residuary power which is exercisable outside the purview of ordinary law.

Article 132 to 135 deal with ordinary appeals to the Supreme Court in cases where the needs of

justice demand interference by the highest court of this land. This article is worded in the widest

possible terms. It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining

and hearing appeals by granting special leave against any kind of judgment or order made by any

court or tribunal (except a military tribunal) in any proceedings and the exercise of this power is

left entirely to the discretion of the court unfettered by any restrictions and this power cannot be

curtailed by any legislation short of amending the article itself.

Article 136 confers a special jurisdiction on the Supreme Court. It opens with a non obstante

clause viz ‘Notwithstanding anything in this chapter’ this means that the power of the supreme

court under Art. 136 is unaffected by Art. 132, 133, 134 and 134A.

In Kunhayammed V. State of Orissa1 the Supreme Court Characterized its power under Art. 136

as “an untrammelled reservoir of power incapable of being confined to definitional bounds; the

discretion conferred on the Supreme court being subjected to only one limitation, that is the

wisdom and good sense of justice of the Judges”

Special leave to appeal by the Supreme Court.

1 AIR 2000 SC 2587, 2593 : 2000 6 SCC 359

7

(1) Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant

special leave to appeal from any judgment, decree, determination, sentence or order in

any cause or matter passed or made by any court or tribunal in territory of India.

(2) Nothing in the clause (1) shall apply to any judgment, determination, sentence or order

passed or made by any court or tribunal constituted by or under any law relating to the

Armed Forces.

Appeals by Special leave:

Art 132 – 135 of the constitution deal with appeals of the Supreme Court which a person may

avail of as a matter of right so long as the conditions specified in those articles are satisfied.

Under Art 136, one may appeal to the court only with its permission or leave. But the power of

the court to hear the appeals in this article is much wider and general. It vests in the Supreme

Court plenary jurisdiction in the matter of entertaining and hearing appeals by granting special

leave against any judgment, decree, determination or order, in any cause or matter, passed oe

made by any court or tribunal.

Compared with provisions of the Article 132, 133 and 134, the jurisdiction conferred under Art

136 has the following distinguishing features:

1. The power to grant special leave is not confined to judgments, decrees or final orders of

the High Courts. It can be granted even against the decisions of the lower courts such as

magistrates2.

2. Appeals shall lie from orders or determinations of all courts or tribunals in the territory of

India, except those mentioned in clause (2).

3. There is no condition that the order of the court should be final order. Hence, appeals

against interlocutory orders are permissible. But normally, an appellant is expected to

exhaust the others remedies provided in law.

4. An appeal shall lie from any order or determination of a court or tribunal. The

determination need not be final.

2 See e.g., Rajendrakumar jain v. State.

8

5. The order or determination of a court may be in any cause or matter, civil criminal or

otherwise.

6. No law making any determination of any court or tribunal final can limit the jurisdiction

of the court in Art 1363

“By virtue of this article we can grant Special leave in civil cases, in criminal cases, in income

tax cases, in cases which come up before different kinds of tribunals, and variety of other

cases.”4 The only conditions are: 1) the determination or order sought to be appealed from must

have the character of a judicial adjudication. Purely administrative or executive direction is not

contemplated to be made the subject matter of appeal of the Supreme Court.5 2) The authority

whose act is complained against must be a court or tribunal. Unless both the conditions are

satisfied, Art 136 clause (1) cannot be invoked.6

Exercise of Discretion.

Art 136, as shown above, is worded in the widest possible terms. It confers a wide discretion on

the Supreme Court to entertain appeals in suitable cases not otherwise provided for in the

constitution. It is in the nature of residuary or reserve power7 and , therefore, it cannot be defined

exhaustively. Decided cases, however, establish that the Supreme court will grant special leave

to appeal in exceptional cases – cases where grave injustice has been done by disregard to the

forms of the legal process, or violation of the principles of natural justice, or otherwise. The

discretionary nature of the power continues until the disposal of the appeal.8

In express terms, Article 136 does not confer a right of appeal on a party as such, but it confers a

wide discretionary power on the supreme court to grant special leave to appeal in Suitable cases.

Though it is residuary power and extraordinary power in its terms, it shall be exercised by the

Supreme Court in accordance with the well-established judicial principles, or the well-known

norms of procedure which have been recognized for long as precedents. Thus, while considering

a petition under Art 136, it is reasonable to assume that the norms of fair procedure implied in

3 Pritam Singh V. State, AIR 1950 SC 1694 See E.g., Dhakeswari cotton mills Ltd V. CIT AIR 1955 SC 655 Jaswant sugar mills Ltd V. Lakshmi Chand, AIR 1963 Supp (1) SCR 2426 Engg. Mozdoor Sabha V. Hind cycles Ltd., AIR 1963 SC 8747 Durga Shankar Mehta V.Raghuraj singh, AIR 1954 SC 5208 Taherakhatoon V. Salambin Mohammed, 1999 2 SCC 635

9

Art 21 are adequately met and procedure followed in disposing of a petition under Article 136 is

Consistent with the procedure contemplated in Art 21.9

It is true that the strictest vigilance over abuse of the process of the court, especially at the level

of the Supreme Court, should be maintained, ordinarily a private party, other than the

complainant, should not be permitted to file an appeal.10 In criminal cases, it is all the more so

since an adverse verdict may result in irretrievable injury to life or liberty. But in the absence of

an independent prosecution authority easily accessible to every citizen, a wider connotation of

standing is necessary for Art 136. Thus, the court may entertain special leave to appeal from

private party in such cases only where it is convinced that the public interest justifies an appeal -

against the acquittal, and that the state has refrained from petitioning for special leave for reasons

which do not bear on the public interest, but are prompted by private influence, want of bona

fides and other extraneous considerations.11 A third party may also appeal if it is aggrieved by a

decision.12 The court may also invoke its jurisdiction in Art 136 suo motu.13 In criminal cases, it

can also acquit an accused who has not filed an appeal against his conviction, if all other accused

who were convicted with him are acquitted in appeal.14

In Pritam Singh V. State, in explaining how the discretion will be exercised generally in

granting special leave to appeal, the Supreme Court observed:

The wide discretionary power with which this court is invested under it is to be exercised

sparingly and in exceptional cases only, and as far as possible a more or less uniform standard

should be adopted in granting special leave in the wide range of matters which can come up

before it under this article. By virtue of this article, we can grant special leave in civil cases, in

criminal cases, in income tax cases, in cases which come up before different kinds of tribunals

and in a variety of other cases. The only uniform standard which in our opinion can be laid down

in the circumstances is that court should grant special leave to appeal only in those cases where

special circumstances are shown to exist.

9 P.S.R Sadhanatham V. Arunachalam, 1980 3 SCC 14110 K.Manjusree V. State of A.P., 2008 3 SCC 51211 P.S.R Sadhanatham V. Arunachalam, 1980 3 SCC 14112 Gopabandhu Biswal V. Krishna Chandra Mohanty, 1998 4 SCC 44713 Pawan kumar V. state of Haryana, 2003 11 SCC 24114 Gurucharan

10

Again in Dhakeswari cotton mills V. CIT, the SC said:

It is not possible to define…the limitations on the exercise of the discretionary jurisdiction vested

in this court by the constitutional provision made in the Art 136. The limitations, whatever they

be, are implicit in the nature and character of the power itself. It being an exceptional and

overriding power, naturally it has to be exercised sparingly and with caution and only in special

and extraordinary situations. Beyond that it is not possible to fetter the exercise of this power by

any set formula or rule.

Thus, it is a well- settled practice of the supreme court that expect where there has been an

illegality or an irregularity of procedure or a violation of the principles of natural justice,

resulting in the absence of a fair trial or gross miscarriage of justice, the supreme court does not

permit a third review of evidence with regard to questions of fact in cases in which two courts of

fact have appreciated and assessed the evidence with regard to such questions.15it can, however,

go into the correctness of findings of facts where “ the concurrent decision of two or more courts

or tribunals in manifestly unjust,”16 The supreme court does not allow a point raised before the

courts below to be raised before itself for the first time.17 Every error, even of law, does not

justify interference under Art 136. But in case of grave injustice, the court is duty bound to

interfere with the findings of fact given if they have been affirmed thrice.18 The court ordinarily

does not go into the sufficiency of evidence.19Leave cannot be granted merely against adverse

exercise of discretionary power when no illegality has been committed, nor any unreasonable

restriction placed on any fundamental right of the appellant.20 The court does not interfere with

the exercise of discretionary power by the High court under Art 226 and 227, merely because

two views are possible on the facts of the case. In exceptional cases, the court admits appeal

under Article 136 even though the appellant has not exhausted all other remedies such as under

article 226 and 227, if there are exceptionally sound reasons for such admission.21 It may also

admit that an appeal against the judgment of a single Judge of the High Court against which a

division bench of that High Court declined to interfere. The court may refuse to give relief under

15 Chikkarange gowda V. state of Mysore, AIR 1956 SC 73116 Raghunath G. Panhale V. Chaganalal Sundarji & Co. 1999 8 SCC 117 R.J Singh Ahuluwalia V. State of Delhi, 1970 3 SCC 45118 Indra Kaur V. Sheo lal Kapoor, 1988 2 SCC 488, 48919 Narayan Govind Gavate V. State of Maharashtra, 1977 1 SCC 133 20 Khatri ahmed mushabhai V. Limdi Municipality 21 S.G Chemicals & dyes trading employees union V. S.G Chemicals & dyes trading Ltd. 1986 2 SCC 624

11

Art 136 to a person who does not come before it with clean hands, for example, if he has

suppressed some facts.22

Scope of Article 136:

1) The word ‘order’ in Art 136(1) has not been qualified by the adjective ‘final’ as in the case

in Arts. 132, 133 and 134. The Supreme Court has thus power to hear an appeal even from

an interlocutory or an intern order. In practice, however, the court does not ordinarily grant

leave to appeal from an interlocutory order, but it can do so in an exceptional case.

Ordinarily, the parties are directed to approach the High Court for the recall, stay or

modification of the interim order. At times, the Supreme Court has, while dismissing such

petitions requested the high court to dispose of the matter preferably within a time frame.

Use of imperative words such as “ directed “ and fixing a time frame within the high court

“shall” dispose of a matter have, on occasion, led to a confrontation between the high court

and the supreme court.

2) Article 136 (1) does not define the nature of proceedings from which the supreme court may

hear appeals and therefore, it could hear appeals in any kind of proceedings whether civil,

criminal or relating to income tax, revenue or labour disputes, etc

3) Article 136(1) confers on the Supreme Court power to hear appeals from orders and

determination of any tribunal other than a military tribunal. This aspect of Art 136(1) is very

significant and is discussed in detail below.

4) Under Art. 136 (1), the supreme court may hear appeal even though the ordinary law

pertaining to the dispute makes no provision for such an appeal.

5) Being a Jurisdiction conferred by the constitution, it cannot be diluted or circumscribed by

ordinary legislative process: it can be curtailed or modified only by constitutional process.

6) The Supreme Court may hear an appeal even where the legislature declares the decision of a

court or tribunal as final. Thus in Raigarh23, the supreme court heard an appeal from an order

of the Railway Rates Tribunal, Madras, in spite of Sec 46A of the Railways Act, 1980,

laying down that the decision of the tribunal shall be final.

22 Rasiklal Vaghajibhai Patel V. Ahmedabad Municipal Corpn,. 1985 2 SCC 3523 Mahendra Saree Emporium(II) V. G.V Srinivasa Murthy, 2005 1 SCC 481

12

7) Under Art 136 (1), the supreme court plenary jurisdiction to grant leave and hear appeals

against any order of a court or tribunal. This confers on the Supreme Court power of judicial

superintendence over all courts and tribunals in India including subordinate courts of

magistrate and district judge.24

8) Notwithstanding concurrent findings of trail court and high court the lack of quality or

credibility of evidence may call for interference.25

9) After granting special leave to appeal under Art.136, the court can revoke the leave granted

by it, if the respondent brings to the notice of the court facts which would justify such

revocation. The court will do so in the interest of justice.

10) Generally speaking, under Art. 136, the Supreme Court hears an appeal from an

adjudicatory order and not from an administrative order. An adjudicatory order is “an order

that adjudicates upon the rival contentions of parties and it must be passed by an authority

constituted by the state by law for the purpose in discharge of the state “obligation to secure

justice to its people.

Grounds for SLP:

(1) SLP can be filed against any judgment or decree or order of any High Court /tribunal in --

the territory of India.

(2) SLP can be filed in both cases of Civil/Constitutional or Criminal matters.

(3) Or, SLP can be filed in case the High court refuses to grant the certificate of fitness for

appeal to Supreme Court of India.

(4) SLP can be filed by the appellant if all other alternative remedies are exhausted.

Time frame within which SLP can be filed:

24 Delhi Judicial Service Assn. V. State of Gujarat, AIR 1991 SC 217625 A.Subair V. State of Kerala, 2009 6 SCC 587

13

(1) SLP can be filed against any judgment of High Court within 90 days from the date of

judgment.

Or SLP can be filed within 60 days against the order of the High Court refusing to grant the

certificate of fitness for appeal to Supreme Court.

Appeal in Constitutional/Civil Cases:

Under art 136, the Supreme Court can hear appeal in a case involving substantial question of

constitutional law if the high court refuses to grant the necessary certificate under Art. 132.

Similarly, the Supreme Court may entertain appeal in a civil case where substantial question of

law is involved but which is not covered by art.132 as for example, when the high court may

have refused to grant a fitness certificate.

Ordinarily, the Supreme Court does not entertain an appeal against an exercise of discretion by

the court below if it has been exercised along sound judicial lines. But if the discretion is

exercised arbitrarily or unreasonably, or is based on a misunderstanding of the principles that

govern its exercise, or the order has been passed without jurisdiction, or if there is a patently

erroneous interpretation of law by the high court, the Supreme Court would intervene if there has

been a resultant failure of justice26. So also if the court below acts without jurisdiction, or in

violation of principles of natural justice27 or without a proper appreciation of material on record

or the submissions made interference under Art 136 is warranted.

Ordinarily, the Supreme Court does not appreciate evidence, or go behind the findings of fact

arrived at by the court below, much less concurrent findings, unless there is sufficient ground foe

doing so.28The court can, however appreciate evidence on record to avoid miscarriage of

justice.29 If in giving the findings the lower court ignored or misread and misconstrued certain

important pieces of evidence, and the supreme court comes to the conclusion that, on the

26 Santosh V. Mul Singh, ntAIR 1958 SC 32127 National organic chemical industries Ltd V. Miheer H. Mafatal, 2004 12 SCC 35628 Ghisalal V. Dhapubai, 2011 2 SCC 29829 Shashi Jain V. Tarsen lal

14

evidence taken as a whole, no court could properly, as a matter of legitimate inference, arrive at

the conclusion that the lower court has arrived, or where the two lower courts of appeal were

under a clear misapprehension as to the findings of the fact by the trial court, or where the lower

courts arrived at the findings not on proper consideration of the law on the subject, or were

appreciation of evidence by the courts on the face of it appears to be erroneous causing

miscarriage of justice, the court would examine the evidence itself.30 The position however is

different if it is a mixed question of law and fact.31

Order xvi rule 4 c of the Supreme Court rules which provides the

“SLP’s shall be confined only to the pleadings before the court or tribunal or whose order is

challenged. However, the petitioner may, with due to the respondent, and with the leave court of

the urge additional grounds, at the hearing.”

Thus a new plea put forward for the first time in the form of written submissions after the

hearing was concluded was not entertained.32

Nevertheless the Supreme court is extremely reluctant to entertain and entirely new plea, not

raised earlier if earlier before the lower courts, being raised for the first time in appeal before it,

especially when the new plea is founded on facts33. For example: The Supreme court did not

permit the plea of mala fides being raised before it for the first time as it is being esentailly a

question of fact needed to be supported by relevant material. Again whether there is a novation

of a contract is a mixed question of law and fact and cannot be raised before the Supreme court

for the first time. A document which is produced by the respondent for the first time at the stage

of arguments can be considered if it forms the basis of the petitioners claim.34

If however a point of fact plainly raises on the record or a point of law is relevant and material

and can be decided on the basis of material on record without any further evidence being taken,

or the plea was urged before the trial court and was rejected but was not repeated before the High

Court, or if a question of considerable importance likely to arise in similar suit, or if it goes to the

30 Heramba Brahma V. State of Assam31 Suresh kumar jain V. Shanthi Swarup Jain. AIR 1997 SC 229132 State of Rajasthan V. H.V Hotels, 2007 2 SCC 468, 47533 R.J Singh Ahluwalia V. Delhi. AIR 1971 SC 155234 Ramashray Singh V. New India Insurance Co Ltd 2003 10 SCC 664

15

jurisdiction of the lower court, the Supreme court may permit the plea to be raised. If it is a pure

question of law going to the root of the case, the plea maybe allowed to be raised with the

permission of the court.35

In one case, the Supreme Court permitted the question of constitutional validity of the relevant

statute to be raised for the first time before it. Accordingly, the Supreme Court set aside the High

court’s judgment and sent the matter back to it so that it may decide the question of

constitutional validity of the act.36

In a preventive detention case, the court allowed a new plea to be raised, viz., non-consideration

of detenu’s representation by the government, because the plea was important as it was fatal to

detention and it could be determined on the material available to the court.37

APPEAL IN CRIMINAL MATTERS:

The Scope of Article 134 providing for appeals to the Supreme Court in criminal matters is

limited. The residuary jurisdiction of the Supreme Court under article 136 has more frequently

been invoked in criminal appeals. But the court does not interfere lightly. It has more than once

declared that it will not grant special leave to appeal under article 136(1) of the constitution,

35 Vimal Chandra Grover V. Bank of India, 2000 5 SCC 122, at 13436 M/s Noorulla Ghazanfarulla V. Municipal board of Aligarh, AIR 1981 SC 217637 Harish Pahwa V. State of Uttar Pradesh, AIR 1981 SC 1126

16

unless it is shown those special and exceptional circumstances exist, the substantial and grave

injustice has been done, and the case in question presents features of sufficient gravity to warrant

a review of the decision appealed against. Further, in the exercise of its special leave appellate

jurisdiction, the Supreme Court will not interfere with the concurrent findings of the courts

below unless, of course, the findings are perverse or vitiated by error of law or there is gross

miscarriage of justice.38

In granting special leave to appeal in criminal cases, the supreme court will take guidance from

the principles which have been laid down by the privy council defining the limits within the

interference with the course of criminal justice taken in the subordinate courts is warranted.39 A

perusal of the Privy Council decisions on the point would indicate that the council had repeatedly

aaffirmed the principle that it was unwilling to act in criminal cases in the free fashion of a fully

constituted court of criminal appeal. The exercise of prerogative takes place only where it is

shown that the injustice of a serious and substantial character has occurred.40

In Reil v. R41, Lord Halsbury, delivering the opinion of the Privy Council, pointed out that leave

to appeal in criminal cases could only be granted where some clear departure from the

requirement of justice is alleged to have taken place. In Abhram Mallory Dillot re,42 it was

observed that the Privy Council reviews proceedings unless it is shown that by a disregard of the

forms of legal process or some violation of the principles of natural justice or otherwise,

substantial grave injustice has been done. In Ibrahim v Emperor, it was observed that the ground

for his majesty’s interference in criminal matters was the violation of principle of justice. In Ras

Behari Lal v King Emperor43 Leave to appeal was granted on the disclosure that a member of the

jury did not understand the language in which the trial was conducted. In M. Ahlikili Dhalamini

v. R, the appeal was allowed because there had been failure to hold in public the whole of the

proceedings in a murder case.

The principle stated above, namely, that the Judicial committee will interfere where there had

been an infringement of the essential principles of justice,, has been further elucidated by

38 Mohd.Husssain Umar Kochra V. K.S Dalipsinghji. 1969 3 SCC 42939 Pritam Singh V. State. AIR 1950 SC 16940 Dal Singh V. King Emperor41 (1885) 10 AC 67542 1887 12 AC 45943 1932-33 60 IA 354

17

Viscount Simon, who after reviewing various cases pointed out the following circumstance in

which the Privy Council could interfere in a criminal appeal:

1. Where the accused has not been given the opportunity of being heard

2. Where the trial took place in the absence of accused

3. Where the accused is not allowed to call relevant witnesses

4. Where the tribunal was shown to have been corrupt or not properly constituted

5. Where the court fails to understand the proceedings because of the language.

6. Where the sentencing court had no jurisdiction to try the case.

The Same is the practice of the Supreme court as is clear from the following observations in

Pritam Singh V. State

Generally speaking, this court will not grant special leave, unless it is shown that exceptional and

special circumstances exist, than substantial and grave injustice has been done and that the case

in question presents features of sufficient gravity to warrant a review of the decision appealed

against.

Tribunal:

As shown above, special leave to appeal under Art 136 is not limited to orders or determinations

of a court of law, but includes a “tribunal” also. A tribunal is a body or authority, though not a

court in the strict sense, which is invested with the judicial power to adjudicate on questions of

law or fact, affecting the rights of the citizens in a judicial manner. Appeals have been

entertained under this article, for example, against determinations of industrial tribunal, central

administrative tribunal, election commission, railway rates tribunal, central administrative

tribunal, administrative of evacuee property, authority under the payment of wages, central

government exercising powers of revision. The court’s power to grant special leave is not taken

away, even when it is declared by law that the order or decision of the tribunal shall be

conclusive. This power has been preserved even in respect of the administrative and other

tribunals provided under Arts. 323-A and 323- B.

18

A body or authority for being characterized as a tribunal for the purposes of Art 136 must

possess the following features:

1) It must be a body or authority invested by law with power to determine questions or

disputes affecting the rights of citizen.

2) Such a body or authority in arriving at the decision must be under a duty to act judicially.

Whether an authority has a duty to act judicially is to be gathered from the provisions of

the act under which is constituted. Generally speaking, if the investigating is subject to

certain procedural attributes contemplating an opportunity of presenting its case to a

party, ascertainment of facts by means of evidence if a dispute be on questions of fact,

and if the dispute be on a question of law on the presentation of legal arguments, and the

decision results in the disposal of the matter on findings based upon those question the

strict sense, should be invested with the “trapping of a court”, such as authority to

determines of law and fact, then such a body or authority acts judicially.44

3) Such a body must be invested with the judicial power of the state. This means that the

authority required to act judicially, though not a court in the strict sense, should be

invested with the “trapping of a court”, such as authority to determine matters in cases

initiated by parties, sitting in public, power to compel attendance of witnesses and to

examine them on oath, duty to follow fundamental rules of evidence(though not under the

strict rules of the evidence act,1872),provision for imposing sanctions by way of

imprisonment, fine, damages or mandatory or prohibitory orders to enforce obedience to

its command. The list is illustrative; some, though not necessarily all, such trappings will

ordinarily make the authority which is under a duty to act judicially, a tribunal.45 The

intentional of the constitution by the use of the word ‘tribunal’ in the article seem to have

been to include within the scope of article 136 tribunals adorned with similar trappings as

court but strictly not coming within that definition46.

Bharat bank Ltd. V. employees47 is an important early decision of the supreme court, defining

the nature of tribunals against whose decisions appeals may be admitted by the supreme court

in the exercise of its jurisdiction under article 136.The issue in that case was whether the 44 Jaswant Sugar mills Ltd V. Lakshmi chand, AIR 1963 SC 67745 Jaswant Sugar mills Ltd V. Lakshmi chand, AIR 1963 SC 67746 Bharat Bank Ltd. V. Employees47 AIR 1950 SC 188

19

determination by an industrial tribunal set up under the industrial disputes act, 1947 was open

to appeal to the supreme court under article 136 of the constitution. The majority of the

judges answered the question in affirmative. An industrial tribunal is a “tribunal” for the

purposes of article 136, because it is invested with the following trapping of a court of law:

1. The proceedings before it commence on submission of an application, which is in the

nature of a plaint.

2. It has the same powers as regards discovery, inspection, taking evidence, as are

possessed by a civil court.

3. Witnesses are examined and cross-examined as in a court of law.

4. A party may be represented by a legal practitioner.

5. The tribunal is required to decide on the basis of the evidence adduced and according

to the provisions of the statute.

6. Members of the tribunal are persons qualified to be judges.

In Jaswant Sugar Mills ltd. V. Lakshmi Chand,48 the court held that the conciliation officer,

exercising powers under clause 29 of the order of the Uttar Pradesh governor, issued under the

U.P Industrial disputes Act, 1947 is not a tribunal, because he is not required to sit in public, no

formal pleadings are contemplated to be tendered, he is not empowered to compel attendance of

witnesses, nor is he restricted in making an enquiry about evidence which the parties may bring

before him. The Conciliation officer is again not capable of giving a determinative judgment or

award affecting the rights and obligations of the parties. He is not invested with powers similar

to those of the civil court under the CPC for enforcing attendance on any person and examining

him on oath, compelling production of documents, issuing commissions for the examination of

witnesses and other matters. Likewise, an arbitrator appointed under Section 10, Industrial

Disputes Act, 1947,is not a tribunal because he lacks the basic, the essential, and the fundamental

requisite in that behalf because he is not invested with the state’s inherent judicial power. He is

appointed by the parties and the power to decide the dispute between the parties who appoint him

is derived by him from the agreement of the parties and from no other source49. In Dev Singh

48 AIR 1963 SC 67749 Engg. Mazdoor Sabha V. Hind Cycles Ltd., AIR 1963 SC 874

20

v.P&H High Court50, it was held that appeals in disciplinary matters against the decision of the

District Judge to the High court under Rule X of the High court’s rules are of administrative and

not of judicial character and therefore, no appeal against the order of the high court lies under

article 136. Supreme Court has even heard appeals from several bodies. In Harinagr sugar mills

V. Shyam Sundar JhunJhunwala51 it was held that Central government acting under Sec 111(3)

of the companies Act,1956, while deciding a dispute regarding registration of shares between a

company and the person who has purchased these shares

It may however, be stated that the consideration about the presence of all or some of the

trappings of a court is really not decisive. The presence of some of the trappings may assist the

determination of the character of power exercised by the authority. But the main and basic test is

whether the adjudicating power which a particular authority is empowered to exercise has been

conferred on it by a statute can be described as a part of the state’s inherent power exercised in

discharging its judicial function. In Associated Cement Company Ltd. V. P.N Sharma,52 it was

held that the Punjab state government exercising its appellate jurisdiction under rule 6 of the

Punjab Welfare Officers Rules, 1952 was a tribunal within the meaning of Article 136, as the

power which the state government exercises under the rule is a part of the state’s judicial power

and it can be exercised in respect of disputes between the management and its welfare officers.

Article 136 of the constitution does not confer a right of appeal, but a discretionary power on the

Supreme Court to grant special leave to appeal from the order of any tribunal within the territory

of India. It is implicit in the discretionary power that it cannot be exhaustively defined. The

grounds on which the Supreme Court would normally interfere with decisions of tribunals can be

classified under the following categories, namely

1. Where the tribunal acts in excess of the jurisdiction conferred upon it under the statute or

regulation creating it, or where it ostensibly fails to exercise a patent jurisdiction.

2. Where there ia an apparent error on the face of the decision.

3. Where awards are made in violation of principles of natural justice causing substantial

and grave injustice to parties and

4. Where the tribunal has erroneously applied well accepted principles of jurisprudence.50 1987 7 SCC 16151 AIR 1961 SC 64852 AIR 1965 SC 1595

21

Dismissal of Appeal:

After the Supreme Court grants leave to appeal, the Court hears the appeal on merits. After

hearing the arguments of the parties, the Court gives its decision. The Court may dismiss the

appeal with or without giving reasons for the same, or the Court may pass on order of reversal,

modification or merely affirmation of the decision of the lower court or the tribunal. In any such

situation, the decision appealed against gets merged with the decision of the Apex Court. This

means that after the Supreme Court, the original decision appealed against cannot be challenged

through a writ petition in High Court under Art. 226 of the constitution. Nor can the lower or

tribunal review its decision against which the Supreme Court has disposed of an appeal.53

A petition for grant of leave to appeal may be rejected for several reasons, such as;

(1) The petition is time barred.

(2) Defective presentation54

(3) Petitioner lacks locus standi to file the petition

(4) Conduct of the petitioner disentitles him to any indulgence by the court.

(5) The question raised in the petition is not considered fit for consideration by the Court or

does not deserve to be dealt with by the Apex Court.

Delay:

An appeal must be filed without undue delay although Art. 136 prescribes no period of limitation

for the purpose. But the Court does not like the stale claims to be raked up. The Court has power

to condone delay in approaching it to enable it to do substantial justice to the parties concerned. 55

The Court shows a liberal attitude in condoning delay when the Government is the appellant.

One reason for such an approach is that bureaucratic delay is proverbial. Secondly, the Court

feels that if the state is denied an opportunity to appeal cause of delay, it may be loss to society

as a whole.56

53 Kunhayammed v State of Kerela AIR 2000 SC 2587 54 State of Punjab v Ashok Singh Garcha (2009) 2 SCC 39955 U.O.I v Cynamide India Ltd AIR 1987 SC 180256 State of U.P v Harish Chandra AIR 1996 SC 2173

22

Restrictions or Limitations:

Article 136 imposes no restriction or limitation on the power of Supreme Court to hear appeals.

The constitutional provision confers a plenary jurisdiction on the court. Nevertheless, the Court

has sought to impose on itself some restrictions in exercising this vast appellate jurisdiction. This

has been done with the view to reduce the flow of appeals to it so that it is not faced with

backlog of cases.

Conclusion:

I found, that this is a beautiful constitutional provision which renders justice to a common

man. Due to the presence of this provision the common man has the right to seek the justice

in highest court of authority without any hindrance. This is a basic structure of the indiaan

constitution that cannot be amended on passing of any law. By crucial analysis over this

article it enables us to understand that subjects of India have been saved from erroneous

miscarriage of justice sometimes even the state government.

23

Bibliography:

1. Indian Constitutional Law 7th edition M P Jain.

2. V.N Shukla’s Constitution of India.

3. Constitution law of India Dr.J.N Pandey

4. www.wikipedia.org/articlesonslp

5. www.lawresources.in

6. www.indiankanoon.in

24