Full Judgment Text
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PETITIONER:
WORKMEN OF COCHIN PORT TRUST
Vs.
RESPONDENT:
BOARD OF TRUSTEES OF THE COCHIN PORT TRUST & ANR.
DATE OF JUDGMENT05/05/1978
BENCH:
UNTWALIA, N.L.
BENCH:
UNTWALIA, N.L.
SINGH, JASWANT
PATHAK, R.S.
CITATION:
1978 AIR 1283 1978 SCR (3) 971
1978 SCC (3) 119
CITATOR INFO :
R 1981 SC 960 (10,18,19)
F 1986 SC1780 (6)
R 1989 SC1764 (23)
RF 1991 SC1309 (3)
ACT:
Res judicata, applicability of-Special Leave Petition under
Art. 136 of the Constitution challenging the Award of the
Labour Court was dismissed without giving any reason-Whether
the dismissal of the special leave petition bars the filing
of a fresh Writ Petition, on almost all grounds, in the High
Court under Art. 226-Civil Procedure Code (Act 5, 1908, S.
11)-Application of principle of res judicata, explained.
HEADNOTE:
Out of 17 categories of Junior Executives in the Traffic
Department of the respondent Port Trust, except categories
XVI-Labour Supervisors Grade-11 and categories XVII-
Markers/Sorters/Checkers rest were on non-roster system.
When the workmen belonging to the non-roster were asked to
work on a Sunday they were given a day off on any other
working day and were also paid half an extra day’s wages.
On the other hand workmen belonging to categories XVI and
XVII had been put on roster system, under which whenever
they were made to work on a Sunday on rotation, they were
given another day off in a week but they were not paid extra
wages for half a day as were given to the non-roster
workmen. An Industrial dispute was therefore raised in the
form viz., "Whether the demand for changing the Roster off
system to giving Sundays’ off as the weekly day rest in
respect of Grade-11 Supervisors, and Markers, Sorters and
Checkers is justified ?" The Industrial Tribunal decided the
reference in favour of the workmen. The employer,
thereafter, filed a special leave petition No. 451 of 1970
in this Court to challenge the award of the Tribunal, but
the same was dismissed on 18-3-70, after perusal of the
papers and hearing the counsel. As no reason for dismissal
was given in the order, the respondent employers, filed a
writ petition in the High Court on 28-3-70. The High Court
allowed the writ petition, and quashed the Award of the
Tribunal. The High Court was of the view that : (1) there
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was no unfair discrimination adopted by the Management.
While the non-roster staff were given half-a-day’s
additional wages as also compensating holiday for working on
their weekly holiday, the roster staff were paid one day’s
additional wages as also compensating holiday for working on
their weekly holiday, the only difference being that while
Sunday is always the weekly holiday for the non-roster staff
the weekly holiday for the roster staff changes once in
every three months according to the roster; (2) as the
question of wages was not referred to the Tribunal, its
Award was clearly in excess of jurisdiction; and (3)
dismissal of the special leave petition by the Supreme
Court did not operate as res judicata in the entertainment
of the writ petition.
Dismissing the appeal by certificate, the Court
HELD : (1) The Judgment of the High Court is correct and
sustainable in law.[1976 H]
(2) The scope of the proceeding under Art. 136 is wider,
than that of a writ petition., The dismissal of a special
leave petition under Art. 136 does not necessarily bar the
entertainment of a writ petition under Art. 226. The effect
of non-speaking order of dismissal without anything more
indicating the grounds or reasons of its dismissal must by
necessary implication be taken to have decided that it was
not a fit case where special leave should be granted. It
may be due to several reasons. It may be one or more. It
may also be that the merits of the award were taken into
consideration and this Court felt that it did not require
any interference. But since the order is not a speaking
order it is difficult to accept the argument that it must be
deemed to have necessarily decided implicitly all the
questions in relation to the merits of the award. Whatever
can be held to have been decided expressly implicitly or
even constructively while dismissing the special leave
petition Cannot be reopened. [977 E-G]
972
State of U.P. v. Nawab Hussain, [1977] 3 S.C.R. 428 applied;
Management of Western India Match Co. Ltd., Madras v. The
Industrial Tribunal, Madras & Anr., AIR 1958 Mad. 398; S.I.
Emmatty, Proprietor Jai Hind Motor Service Ernakulam v.
Venkitaswami Haridas Naiduar & Ors., AIR 1959 Kerala, 291;
Haridas Malkar & Ors. v. Jay Engineering Works, [1975] 2
LL.J.26; explained and differed from; Bansi & Anr. vs.
Additional Director, Consolidation of Holdings, Rohtak &
Ors., AIR 1967 Pb. 28 approved.
(3) But, dismissal of a writ petition in limine by a non-
speaking order, even with one word order "dismissed" could
certainly create a bar in the entertainment of another writ
petition filed by the same party as the same cause of action
as it must necessarily be taken to have decided impliedly
that this is not a fit one for exercise of the writ
jurisdiction of the High Court. If the writ petition is
dismissed after contest by a speaking order obviously it
will operate as res judicata in any other proceedings, such
as of suit, Art. 32 or Art. 136 directed from the same order
or decision. If the writ petition is dismissed by a
speaking order either at the threshold or after contest,
say, only on the ground of laches or the availability of an
alternative remedy, then another remedy open in law either
by way of suit or other proceedings obviously will not be
barred on the principle of res judicata. A second writ
petition on the same cause of action either filed in the
same High Court or in another will not be maintainable
because the dismissal of one petition will operate as a bar
in the entertainment of another writ petition. 1978 A-C, 979
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B]
Daryao & Ors., v. The State of U.P. & Ors. [1962] 1 SCR 574;
P. D. Sharma V. State Bank of India, [1968] 3 SCR 91,
referred to.
(4) The doctrine of res judicata codified in s. 11 of the
Code of Civil Procedure is not exhaustive. Principles of
not only of direct res judicata, but of constructive res
judicata engrafted in Explanation IV to s. 11 are applied in
many other situations, besides civil suits. If by any
judgment or order any matter in issue has been directly and
explicitly decided the decision operates as res judicata and
bars the trial of an identical issue in a subsequent
proceeding between the same parties. The principle of res
judicata also comes into play when by the judgment and order
a decision of a particular issue is implicit in it, that is
it must be deemed to have been necessarily decided by
implication; then also the principle of res judicata on that
issue is directly applicable. When any matter which might
and ought to have been made a ground of defence or attack in
a former proceeding but was not so made, then such a matter
in the eye of law, to avoid multiplicity of litigation and
to bring about finality in it is deemed to have been
constructively in issue and, therefore, is taken as
decided. [977 A-D]
(5) The technical rule of res judicata, although a
wholesome rule based on public policy cannot be stretched
too far to bar the trial of identical issues in a separate
proceeding merely on an uncertain assumption that the issues
must have been decided. It is not safe to extend the
principle of res judicata to such, an extent so as to found
it in a mere guess work. in the instant case, the Award of
the Tribunal no doubt was challenged in the special leave
petition filed in this Court on almost all grounds which
were in the subsequent proceedings agitated in the High
Court, and there is no question of applying the principles
of constructive res judicata. [977 D, G-H]
(6) The relief granted by the Tribunal was beyond the scope
of the reference : [981 F]
(a) The Tribunal did not find that the roster system was
not necessary for the successful working of the port work.
No discrimination could be found in the roster off system as
such; [981 A-B]
(b) The error of law apparent on the face of the Award was
that if the Roster off system was necessary for the
supervisory staff and the age labour, then the Roster
category of workmen was a class by ’itself and
97 3
equating such workmen with other categories of the workmen
who were very seldom required to work on Sundays was
obviously a wrong application of the principles of
discrimination. In substance and in effect the Award went
beyond the scope of reference although in form in which the
final order was made it did not do so; [981 B-C]
(c) The Tribunal exceeded its jurisdiction in saying that
categories XVI and VII of the workmen could always be made
to work on Sundays but they should be given half day’s wages
besides a day off for working on Sundays. This is an
entirely different kind of relief which the Tribunal
purported to grant, and it was not within the terms of
reference; and [981 C-D]
(d) On the findings of the Tribunal the point of reference
ought to have been answered by saying merely that the demand
for changing the Roster-off system in respect of the two
categories of the workmen was justified or not justified;
[982 D]
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JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 462 of 1971.
From the Judgment and Order dated the 4th September, 1970 of
the Kerala High Court in Original Petition No. 1902 of 1970.
T. S. Krishnamoorthy, N. Sudhakaran and Krishna Pillai for
the Appellant.
G. B. Pai, O. C. Mathur, K. J. John and P. K. Kurian for
Respondent No. 1.
K. Ram Kumar and P. K. Pillai for Intervener (Cochin Port
Porterage staff Assn.).
Ex-parte for respondent No. 2.
The Judgment of the Court was delivered by
UNTWALIA, J. This appeal by certificate from the judgment
and order of the Kerala High Court has been preferred by the
workmen of the Cochin Port Trust. The employers are the
Board of Trustees of the Cochin Port Trust, respondent no.
1 (hereinafter to be referred to as the respondent). An
industrial dispute between the appellants and the respondent
was referred by the Central Government to Central Government
Industrial Tribunal No. 2, respondent no. 2. The Tribunal
gave an award in favour of the workmen but it has been set
aside by the High Court on the application of the respondent
filed under Article 226 of the Constitution of India.
According to the Union which represented the appellant-
workmen, the Traffic Department of the Port Trust is
comprised of and assisted by several categories of junior
executives for the day to day performance of the shift work
of the Cochin Port. Out of the seventeen categories of such
junior executives, the first fifteen enumerated in the award
from the statement of claim of the Union get Sunday off as a
weekly holiday. When the workmen out of the said categories
are asked and made to work on a Sunday, they are given a day
off on any other working day and are also paid extra half
day’s wages. On the other hand category xvi--"Labour
Supervisors Grade II" and category xvii-
"Markers/Sorters/Checkers" have been put on roster
97 4
off system. that is to say, these two categories of workmen
are ’made to work on Sundays by rotation and get another day
off in the week but they do not get extra wages for half a
day as are given to the other fifteen categories. On the
raising of an industrial dispute, it Was referred to the
Tribunal in the following terms :-
"Whether the demand for changing the "roster
off" system to giving Sunday off as the weekly
day of rest in respect of Gr. II supervisors
and Markers, Sorters and Checkers, is
justified"
The Tribunal decided the reference in favour of the workmen.
On behalf of the employers, the Port Trust, the stand taken
was that work in the Port has got to be carried on all the
days of the week including Sunday as the cargo has got to be
loaded and unloaded in and from the ship on every day of
the, week. Porterage labour i.e. Porters and others has got
to be engaged on each day of the week to do the said work.
The roster off categories of workers are, therefore,
necessary to be en-aged by rotation on Sundays also. They
have to work in batches on the roster off system changeable
in three months. In other words, some of the roster off
category of workmen roughly speaking 1/3rd of the total
number of 152 get Sunday off in a particular period of three
months and the rest get a weekly day off on some other day
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of the week. After three months, another batch is given
Sunday off, and so on and so forth, by rotation. Very few
workmen out of the total of about 650 of the non-roster off
categories are required to work on Sundays as it is
generally not necessary to engage them on Sundays for the
Port work. Their nature, of work is such that ordinarily
and generally they get Sunday off. If, however, some of
them are asked to work on a Sunday, then they get a day off
on any other day of the week and are paid half a day’s extra
wages also. In the case of the roster off workmen it also
sometime happens that even on their weekly holiday in a
particular period of three months, they are asked to work.
In that event, they are not only given a day off on another
day of the week but an extra wage for full one day is paid
to them.
Oral and documentary evidence was adduced by the parties
before the Tribunal. The stand taken on behalf of the
employers was that if the roster off system was not
continued the work in the Cochin Port of loading and
unloading of cargo will get dislocated if not altogether
stopped. The employers have got the right to arrange and
carry on their affairs in the best interests of the
industry. By putting certain categories of workmen on the
roster off system, no discrimination is shown to them.
While the stand taken on behalf of the workmen was that
there would be no, dislocation or stoppage of work even if
the roster off system is discontinued because the two
categories of workmen working on this system can always be
booked for working on Sundays on terms made available to the
similar kind of workmen in the other categories. Since in
their case it is not so done, they are debarred of their
half day’s extra wages and thus are unjustly discriminated.
975
The Tribunal formulated the points of decision in the
following
terms
(i) Whether Roster off system in respect of
Grade II Supervisors and
Markers/Sorters/Checkers should be
discontinued ?
(ii) Whether Grade II Supervisors and
Markers/Sorters/ Checkers should be given half
day’s additional wages and another day off,
for working on Sunday ?
(iii) Whether the demand of these employees
is justified ?
The findings of the Tribunal are :-
(i) "If other Supervisory staff i.e.
categories of workers 1 to 15 mentioned in Ex.
1/W is not on Roster off system why should
Grade II supervisors (Category No. 16) and
Markers/Sorters/Checkers (Category No. 17) be
only on Roster off system. If they only are
continued on Roster off system, it would
amount to unfair discrimination."
(2) "It is true that this staff gets one day
off according to turn for working on Sunday
but they do not get half day’s additional
wages for working on Sunday. On the other
hand, the other supervisory staff, if booked
for work on Sunday, get additional half day’s
wages and some other day off. To this extent
there is discrimination in respect of Grade II
Supervisors and Markers/Sorters/Checkers who
belong to Supervisory cadre."
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(3) The Port Trust did not adduce any
documentary evidence to show that the
Supervisory staff in similar industries is put
on Roster off system although the Deputy
Traffic Manager examined on behalf of the
Trust said so in his oral evidence.
(4) "I am of the view that Roster off system
of Grade II Supervisors and
Markers/Sorters/Checkers should be
discontinued that they should be given
additional half day’s wages and other day off
for working on Sundays and that their demand
for discontinuing the Roster off system is
just and fair. The same deserves to be
accepted.
The employers had filed special leave petition No. 451 of
1970 in this Court to challenge the award of the Tribunal
but the same was dismissed on 18-3-1970 after perusal of the
papers and hearing the counsel. As. usual no reason for
dismissal was given in the order. The employers,
thereafter, filed a Writ Petition in the Court on March 28,
1970. This has been allowed and the award has been
quashed.. The High Court has given the view
976
.lm15
(1) "The evidence on both sides is that while the roster
staff work at the same strength on Sundays as on week days,
so far as the non-roster staff are concerned, only a
skeleton staff work on Sundays. That being so, we fail to
see how any unfair, discrimination is involved in giving
Sunday as the weekly holiday for the non-roster staff and
one day of the week by rotation as the weekly holiday for
the roster staff. How the work of an establishment is to be
carried out, how the holidays are to, be fixed, are
essentially for the management to determine and
interference is permissible only if this power is exercised
in an unreasonable or unfair manner."
(2) "That Tribunal also seems to have forgotten that while
the non-roster staff are given half-a-day’s additional wages
as also a compensating holiday for working on their weekly
holiday, the roster staff are paid one day’s additional
wages as also a compensating holiday for working on their
weekly holiday. The only difference is that while Sunday is
always the weekly holiday for the non-roster staff, the
weekly holiday for the roster staff changes once in every
three months according to the roster."
(3) "This is, in effect, retaining the roster system for
the weekly day off and compelling the Port to pay additional
wages for working on Sundays. The question of wages was not
referred to the Tribunal and its award seems to be clearly
in excess of jurisdiction."
(4) Dismissal of the special leave petition by the Supreme
Court did not operate as res judicata in the entertainment
of the Writ Petition.
Mr. T. S. Krishnamurthy appearing in support of the appeal
submitted :-
(1) That the High Court has erroneously over-ruled the
point of res judicata urged on behalf of the appellants.
(2) That the award of the Tribunal was just, proper and
valid. It was neither beyond the scope of the reference nor
did it suffer from any infirmity of law apparent on the face
of the record to enable the High Court to upset it in
exercise of its writ jurisdiction under Article 226 of the
Constitution.
In our opinion, none of the contentions raised on behalf of
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the appellants is correct and fit to be accepted. Mr. G. B.
Pai appearing for the respondent rightly pointed out that
the judgment of the High Court is correct and sustainable in
law.
977
It is well known that the doctrine of res judicata is
codified in section 11 of the Code of Civil Procedure but it
is not exhaustive. Section 11 generally comes into play in
relation to civil suits. But apart from the codified law
the doctrine of res judicata or the principle of res
judicata has been applied since long in various other kinds
of proceedings and situations by Courts in England, India
and other countries. The rule of constructive res judicata
is engrafted in Explanation IV of section 1 1 of the Code of
Civil Procedure and in many other situations also principles
not only of direct res judicata but of constructive res
judicata are also applied. If by any judgment or order any
matter in issue has been directly and explicity decided the
decision operates as res judicata and bars the trial of an
identical issue in a subsequent proceeding between the same
parties. The principle of res judicata also comes into play
when by the judgment and order a decision of a particular
issue is implicit in it, that is, it must be deemed to have
been necessarily decided by implication; then also the
principle of res judicata on that issue is directly
applicable. When any matter which might and ought to have
been made a ground of defence or attack in a former
proceeding but was not so made, then such a matter in the
eye of law, to-avoid multiplicity of litigation and to bring
about finality in it is deemed to have been constructively
in issue and, therefore, is taken as decided.
In the instant case the award of the Tribunal, no doubt,
was challenged in the special leave petition filed in this,
Court, on almost all grounds which were in the subsequent
writ proceeding agitated in the High Court. There is no
question, therefore, of applying the principles of
constructive res judicata in this case. What is, however,
to be seen is whether from the order dismissing the special
leave petition in limine it can be inferred that all the
matters agitated in the said petition were either explicitly
or implicitly decided against the respondent. Indisputably
nothing was expressly decided. The effect of a non-speaking
order of dismissal without anything more indicating the
grounds or reasons of its dismissal must, by necessary
implication, be taken to have decided that it was not a fit
case where special leave should be granted. It may be due
to several reasons. It may be one or more. It may also be
that the merits of the award were taken into consideration
and this Court felt that it did not require any interfer-
ence. But since the order is not a speaking order, one
finds it difficult to accept the argument put forward on
behalf of the appellants that it must be deemed to have
necessarily decided implicitly all the questions in relation
to the merits of the award. A writ proceeding is a
different proceeding. Whatever can be held to have been
decided expressly, implicitly or even constructively while
dismissing the special leave petition cannot be reopened.
But the technical rule of res judicata, although a wholesome
rule based upon public policy, cannot be stretched too far
to bar the trial of identical issues in a separate have been
decided. It is not safe to, extend the principle of res
judicata to such an extent so as to found it on mere, guess
work. To illustrate our view point, we) may take an
example. Suppose a writ petition is filed in a High Court
for grant of a writ of Certiorari to challenge
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978
some order or decision on several ’grounds. If the Writ
Petition is dismissed after contest by a speaking order
obviously if will operate as res judicata in any other
proceeding, such as, of suit, Article 32 or Article 136
directed from the same order or decision. If the Writ
Petition is dismissed by a speaking order either at the
threshold or after contest, say, only on the ground of
laches or the availability of an alternative remedy, then
another remedy open in law either by way of suit or any
other proceeding obviously will not be barred on the
principle of res judicata. Of course, a second writ
petition on the same cause of action either filed in the
same High Court or in another will not be maintainable
because the dismissal of one petition will operate as a bar
in the entertainment of another writ petition. Similarly
even if one writ petition is dismissed in limine by a non-
speaking one word order ’dismissed’, another writ petition
would not be maintainable because even the one word order,
as we have indicated above, must necessarily be taken to
have decided impliedly that the case’ is not a fit one for
exercise of the writ jurisdiction of the High Court.
Another writ petition from the same order or decision will
not lie. But the position is substantially different when a
writ petition is dismissed either at the threshold or after
contest without expressing any opinion on the merits of the
matter, then no merit can be deemed to have been necessarily
and impliedly decided and any other remedy of suit or other
proceeding will not be barred on the principle of res
judicata.
There are several decisions of this Court dealing with the
doctrine and principles of res judicata. We may refer to
only a few. In Daryao and others v. The State of U.P. and
others(1) Gajendragadkar J., delivering the judgment of this
Court elaborately discussed the rule of res judicata and
ultimately held that where the High Court dismisses a writ
petition after hearing the matter on the merits on the
ground that no fundamental right was proved or contravened a
subsequent petition to the Supreme Court under Article 32 on
the same facts and for the same reliefs filed by the same
party would be barred by the general principles of res
judicata. At page 591 says the learned Judge :-
" In such a case the point to consider always
would be what is the nature of the decision
pronounced by a Court of competent
jurisdiction and what is its effect."
This passage lends support to the principles of res judicata
enunciated by us above. In Daryao’s case ’(supra) the
conclusions are stated at page 592. Two situations, namely,
(1) disposal of the writ application on merits and (2) its
dismissal not on merits but on the ground of Laches of the
party or the availability of an alternative remedy, enabled
us to state what we have said above. The, dismissal of a
writ petition in limine with a reasoned order may or may not
constitute a It will depend upon the nature of the order.
"If the petition is dismissed in limine", says the learned
Judge, "without passing a
(1) [1962] 1 S.C.R. 574.
979
speaking order then such dismissal cannot be treated as
creating a bar of res judicata. It is true that prima
facie, dismissal in limine even without passing a speaking
order in that behalf may strongly suggest that the Court
took the view that there was no substance in the petition at
all; but in the absence. of a speaking order it would not be
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easy to decide what factors weighed in the mind of the Court
and that makes it difficult and unsafe to hold that such a
summary dismissal is a dismissal on merits and as such
constitutes a bar of res judicata against a similar petition
filed under Art. 32." We have thought it proper to elucidate
this aspect of the matter a bit further to indicate that
dismissal of a writ petition in limine by a non speaking
order could certainly create a bar in the entertainment of
another writ petition filed by the same party on the same
cause of action.
This decision was followed in P. D. Sharma v. State Bank of
India(1), wherein it was held that the summary dismissal of
a writ petition under Article 226 challenging the order of
the Labour Court was no bar to the entertainment of an
appeal under Article 136 from the same order of the Labour
Court. Hegde J has stated at page 94 thus :-
"From the order of the High Court it is not
possible to find out the reason or reasons
that persuaded it to reject the appellant’s
petition. An appeal under Art. 136 against an
order can succeed even if no case is made out
to issue a writ of certiorari."
Mr. Krishnamurthy rightly pointed out that the lines
extracted above indicate that the scope of the proceeding
under Art. 136 was wider than that of a writ petition. But
he was not right in saying that dismissal of a special leave
petition under Art. 136 must necessarily- bar the
entertainment of a writ petition under Art. 226. In a
recent decision of this Court in State of Uttar Pradesh v.
Nawab Hussain(2) Shinghal J., delivering the judgment on
behalf of the Court applied the principles of constructive
res judicata and held that a suit to challenge the order of
dismissal from service after dismissal of the writ petition
on merits was not maintainable although a new ground of
attack was made out in the suit which had not been taken in
the writ petition. This was so on the application of the
principle of constructive res judicata. It will be useful
to quote a passage from page 431 which runs as follows :-
"Reference in this connection may be made to
Ex Parte Thompson-6 Q.B. 720. There A. J.
Stephens moved for a rule calling upon the
authorities concerned to show cause why a
mandamus should not issue. He obtained a rule
nisi, but it was discharged as it did not
appear that there had been a demand and a
refusal. He applied again saying that there
had been a demand and a refusal since then.
Lord Denman C.J., observed that as Stephens
was making an
(1) [1968] 3 S.C.R. 91.
(2) [1977] 3 S.C.R. 428.
980
application which had already been refused, on
fresh materials, he could not have "the same
application repeated from time to time" as
they had "often refused rules" on that ground.
The same view has been taken in England in
respect of renewed petition for certiorari,
quo warranto and prohibition, and, as we shall
show, that is also the position in this
country."
The above passage amply supports the view expressed by us
above. We, have thought it proper to give some additional
reasons to cuff out the identical principle.
We may now advert very briefly to some of the decisions of
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the High Court cited at the Bar. In The Management of
Western India Match Co. Ltd., Madras v. The Industrial
Tribunal, Madras and another(1) it was pointed out, at page
403 but in our opinion, in some what too broad a term that
:-
"The right to apply for leave to appeal to the
Supreme Court under Art. 136 of the
Constitution if it could be called a "right"
at all cannot be equated to a right to appeal.
Obviously a High Court cannot refuse to
entertain an application under Art. 226 of the
Constitution on the ground that the aggrieved
party could move the Supreme Court under Art.
136 of the Constitution. That the Supreme
Court declined to exercise its discretion in
favour of the petitioner by granting the leave
asked for cannot, in our opinion, affect the
jurisdiction vested in the High Court under
Art. 226 of the Constitution."
The law so broadly stated is not quite accurate although
substantially it is correct to the extent we have pointed
out above. A learned single Judge of the Kerala High Court
followed the aforesaid Bench decision of the Madras High
Court in S. I. Emmatty, Proprietor Jai Hind Motor Service,
Ernakulam v. Venkitaswami Naidu and others(2) In Bansi and
another v. Additional Director, Consolidation of Holdings,
Rohtak and others(3) it was held that when a petition under
Art. 226 of the Constitution has been dismissed in limine,
it cannot again be revived by the same petitioner by another
petition on substantially the same allegations. It has
further been rightly pointed out that such a dismissal in
limine not on merits but for laches or on the ground of
availability of alternative remedy does not bar a second
petition under Art. 32, and we may add, any other proceeding
available in law. For the reasons stated in our judgment,
we approve of his decision. The appellants placed reliance
upon the decision of the Calcutta High Court in Haridas
Malakar and others v. Jay Engineering Works (4) wherein
following the decision of the Madras High Court in the case
of Western India Match Co. the learned Judge has said at
page 29 that he respectfully agreed with the view of the,
learn-
(1) A.I.R. 1958, Madras, 398.
(2) A.I.R. 1959, Kerala 291.
(3) A.I.R. 1967, Punjab, 28.
(4) [1975] 2 Labour Law Journal, 26.
981
ed Judges of the Madras High Court. We have already pointed
out the inaccuracy in the broad statement of the law in the
Madras decision. In any event it does not help the
appellants at all.
Coming to the merits of the award made by the Tribunal it
would suffice to point out that the Tribunal did not find
that Roster off system was not necessary for the successful
working of the Port work as deposed to by the Deputy Traffic
Manager of the Port Trust. No discrimination could be found
in the Roster off system as such. It was found in the
matter of non-payment of extra half a day’s wages. The
error of law apparent on the face of the award was that if
Roster off system was necessary for the Supervisory staff
and the porterage labour, then the Roster category of the
workmen was a class by itself and equating such workmen with
other categories of the workmen who were very seldom
required to work on Sundays was obviously a wrong
application of the’ principles of discrimination. In
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substance and in effect the award went beyond the scope of
reference although in form in which the final order was made
it did not do so. The Tribunal exceeded its jurisdiction in
saying that categories xvi and xvii of the workmen could be
always made to work on Sundays but they should be given
additional half day’s wages besides a day off for working on
Sundays. This is an entirely different kind of relief which
the Tribunal purported to grant. It was not within the
terms of the reference. On the findings of the Tribunal the
point of reference ought to have been answered by saying
merely that the demand for changing the Roster off system in
respect of the two categories of the workmen was justified
or not justified. We would, however, like to observe that
it may be open to the workmen to raise an industrial dispute
demanding half day’s extra wages on account of their being
asked to work on Sundays on the basis of the Roster off
system. Even though the system may not be unjustified, yet
it may be possible for the workmen to press and justify
their demand of extra half day’s wages. Giving them one
day’s full wages when, per chance, they are asked to work on
their off day may not be a compensation fit to be equated
with the said demand. This is not a matter on which we are
called upon to express any opinion as to whether such a
demand would be justified or not or whether it should be
acceeded to. But what we want to emphasize here is that the
relief granted by the Tribunal was beyond the scope of the
reference.
For the reasons stated above, we dismiss this appeal but in
the circumstances make no order as to costs.
S.R.
Appeal dismissed.
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