Full Judgment Text
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PETITIONER:
AHMEDABAD MANUFACTURING & CALICO PRINTING CO. LTD.
Vs.
RESPONDENT:
WORKMEN & ANR.
DATE OF JUDGMENT12/03/1981
BENCH:
MISRA, R.B. (J)
BENCH:
MISRA, R.B. (J)
KOSHAL, A.D.
CITATION:
1981 AIR 960 1981 SCR (3) 213
1981 SCC (2) 663 1981 SCALE (1)515
CITATOR INFO :
F 1986 SC1780 (7)
ACT:
Special leave petition allowed to be withdrawn
unconditionally-Whether amounts to a dismissal and,
therefore, a bar to entertain a fresh petition under Article
226 of the Constitution on the same facts and grounds taken
in the special leave petition.
HEADNOTE:
The Industrial Tribunal, Ahmedabad, on a dispute
referred to it under section 10(2) of the Industrial
Disputes Act, 1947 took up for consideration four demands
for basic wages and adjustment, dearness allowance, gratuity
and retrospectivity of the demands of the workmen. The
Tribunal gave its award on 30th of November 1971 which was
published on 20th January, 1972 in the Maharashtra
Government Gazette.
The appellant company, feeling aggrieved by the award,
filed in the Supreme Court a petition for special leave to
appeal under Article 136 of the Constitution. Pursuant to a
notice, the respondent workmen put in appearance and filed a
counter affidavit. After some arguments the appellant
Company at its request was permitted to withdraw the leave
petition as per the order of the Court dated 21st of August,
1972 which reads: "Upon hearing counsel the Court allowed
the special leave petition to be withdrawn". Four days
thereafter the company filed a petition under Article 226 of
the Constitution before the High Court challenging the
award. The petition was virtually based on the same facts
and grounds as were taken in the special leave petition
before the Supreme Court. The learned single Judge who heard
the petition determined the circumstances on the basis of
the respective affidavits filed by the parties in which the
company unconditionally withdrew its special leave petition
and in view of those circumstances equated the withdrawal of
the leave petition with the dismissal of the same. Relying
on Vasant Vithal Palse and Ors. v. The Indian Hume Pipe Co.
Ltd. and Anr. [1970] 2 LLJ 328, a decision of that court,
the learned Judge dismissed the writ petition in limine. A
Letters Patent Appeal against the said order of dismissal
also met the same fate. However, a petition under Article
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133 of the Constitution for a certificate of fitness to
appeal to the Supreme Court was accepted by the said
Division Bench and a certificate was granted and hence the
appeal.
Allowing the appeal, the Court
^
HELD: 1. Permission to withdraw a special leave
petition cannot be equated with an order of dismissal. If a
non-speaking order of dismissal cannot operate as res
judicata for entertaining a fresh writ petition on the same
facts and grounds taken in the special leave petition, an
order permitting the withdrawal of the writ petition for the
same reason cannot so operate. [219B,222C-D]
214
Workmen of Cochin Port Trust v. Board of Trustees of
Cochin Port Trust and Anr., [1978] 3 SCR 971, followed.
Punjab Beverages Pvt. Ltd. v. Suresh Chand and Anr.,
[1978] 3 SCR 370; Hoshnak Singh v. Union of India and Ors.,
[1979] 3 SCR 399; Daryao and Ors. v. The State of U.P. and
Ors., [1962] 1 SCR 574, discussed.
Vasant Vithal Palse and Ors, v The Indian Hume Pipe Co.
Ltd. and Anr., [1970] 2 LLJ 328; Management of Western India
Match Co. Ltd., Madras v. The Industrial Tribunul, Madras
and Anr. A.I.R. 1958 Mad. 398, distinguished.
2. The order of a court has to be read as it is. If the
Supreme Court intended to dismiss the petition at the
threshold. it could have said so explicitly. In the absence
of any indication in the order itself, it will not be proper
to enter into the arena of conjecture and to come to a
conclusion on the basis of extraneous evidence that the
Supreme Court intended to reject the leave petition. If the
Order of the Supreme Court is read as it is there is not the
slightest doubt that the Supreme Court had allowed the
company to withdraw the leave petition, in the instant case.
The approach of the High Court in having perused the
affidavits filed by the parties to know the circumstances
under which the leave petition was withdrawn is not correct.
[217 C-D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1678 of
1973.
From the Judgment and Order dated 4.7.1973 of the
Bombay High Court in Appeal No. 142/72.
F. S. Nariman, Y. S. Chitale, O. C. Mathur, K.J. John,
Sri Narain, Narayan B. Shetya and M. Mudgal for the
Appellant.
F. D. Damania, B. R. Agarwala and P. G. Gokhale for
Respondents 1-2.
M. K. Ramamurthy and Jatinder Sharma for Respondent 3.
Janardhan Sharma for the Interveners.
The Judgment of the Court was delivered by
MISRA, J. The present appeal by certificate is directed
against the judgment dated 4th of July, 1973 of the High
Court of Bombay in a Letters Patent Appeal arising out of a
petition under Article 226 of the Constitution.
The facts leading up to this appeal lie in a narrow
compass. The appellant-the Ahmedabad Manufacturing and
Calico Printing Co. Ltd. (hereinafter called the Company)-is
predominantly a textile manufacturer but has also factories
in Bombay manufacturing
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heavy chemicals and engages about 750 workmen in three such
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factories. A dispute arose between the Company and the said
workmen in respect of seventeen demands raised by them
through their union. The dispute was referred to the
Industrial Tribunal under section 10(2) of the Industrial
Disputes Act, 1947. Out of the demands of the workmen the
Tribunal took up for consideration only four demands, that
is, demands Nos. 1, 2, 15 and 16 respectively for basic
wages and adjustment, dearness allowance, gratuity and
retrospective effect of the demands. The Tribunal gave its
award on 30th of November 1971 and sent a copy thereof to
the parties. The award was published on 20th of January,
1972 in the Maharashtra Government Gazette. Under the rules
it was to be effective after one month of its publication in
the Gazette.
The Company, feeling aggrieved by the award, filed with
this Court a petition for special leave to appeal under
Article 136 of the Constitution (the leave petition, for
short). Pursuant to a notice, the respondent union put in
appearance and filed a counter affidavit. It appears that
after some arguments the appellant chose to withdraw the
leave petition. As much turns upon the order of this Court
dated 21st of August, 1972 permitting withdrawal, it would
be appropriate to quote the same:
"Upon hearing counsel the Court allowed the
special leave petition to be withdrawn."
Four days thereafter the Company filed a petition under
Article 226 of the Constitution before the High Court
challenging the award. That petition was virtually based on
the same facts and grounds as were taken in the leave
petition before this Court. The respondent union appeared
and filed a counter affidavit urging that the petition be
dismissed in limine. A rejoinder affidavit was filed on
behalf of the Company.
On the date of hearing three preliminary objections
were raised on behalf of the union respondent. In the
present appeal we are, however, concerned only with one of
them, namely, that the High Court should not exercise
discretion in granting relief to the Company under Article
226 of the Constitution, after the withdrawal of the leave
position unconditionally.
This objection prevailed with the High Court. The
learned Single Judge determined the circumstances on the
basis of the respective affidavits filed by the parties, in
which the Company
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unconditionally withdrew its leave petition and in view of
those circumstances he equated the withdrawal of the leave
petition with the dismissal of the same. Relying on Vasant
Vithal Palse and Ors. v. The Indian Hume Pipe Co. Ltd. and
Anr. he held that it was not a fit case for exercise of the
Court’s discretionary power to admit the writ petition and
accordingly dismissed the same in limine.
The Company filed a Letters Patent Appeal but the
Division Bench dismissed the same and confirmed the order of
the learned Single Judge. The preliminary objection which
weighed with the High Court was repeated on behalf of the
union respondent before the Division Bench in appeal with
two contentions: (1) the unconditional withdrawal by the
company of its leave petition in the circumstances found by
the learned Single Judge is a bar to the competence of the
Court to entertain the petition under Article 226 of the
Constitution. In other words, the High Court has no
jurisdiction to grant rule nisi under Article 226 in view of
the withdrawal of the petition under Article 136 of the
Constitution; (2) The learned Single Judge has rightly
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dismissed the petition in limine under Article 226 of the
Constitution in the exercise of his discretion on the ground
that the leave petition based on the same contention was
unconditionally withdrawn. Although the Division Bench
discussed the first contention but refused to decide it as
it was taken for the first time before it in appeal. The
second contention was, however, accepted by the Division
Bench. The High Court did not consider the other cases cited
on behalf of the Company as it thought that the point in
question was concluded by a Division Bench of that Court in
Vasant Vithal Palse’s case (supra). The Company thereafter
moved a petition under Article 133 of the Constitution for a
certificate of fitness to appeal to the Supreme Court which
was granted by the High Court and this is how the present
appeal comes before us.
Two questions arise for consideration in this appeal
:(1) Whether unconditional withdrawal of the leave petition
would amount to its dismissal ? (2) If so, what would be its
impact on the petition under article 226 of the Constitution
?
It was contended for the appellant that the order of
this Court permitting the appellant to withdraw the leave
petition should be read as it is and that so read the order
only means that
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the Company had withdrawn the leave petition. It was urged
that the mere fact that the appellant chose to withdraw the
leave petition after some arguments will not alter the
nature of the order and that by no stretch of imagination
can it be said that the leave petition had been dismissed by
this Court. It may be, it was argued that the Company chose
to withdraw the leave petition on the ground that this Court
was not favourably inclined to grant it or that the Company
chose to avail of a better remedy before the High Court
under Article 226 of the Constitution, which had a wider
scope.
The High Court perused the affidavits filed by the
parties to know the circumstances under which the leave
petition was withdrawn, but in our opinion that is not a
correct approach. The order of a Court has to be read as it
is. If this Court intended to dismiss the petition at the
threshold, it could have said so explicitly. In the absence
of any indication in the order itself, it will not be proper
to enter into the arena of conjecture and to come to a
conclusion on the basis of extraneous evidence that this
Court intended to reject the leave petition. If the Order of
this Court is read as it is there is not the slightest doubt
that this Court had allowed the Company to withdraw the
leave petition, and if that be so, it would be idle to argue
that the leave petition had been dismissed at the threshold.
Reliance was placed on behalf of the appellant on
Workmen of Cochin Port Trust v. Board of Trustees of the
Cochin Port Trust & Anr. In that case a special leave
petition had been dismissed in limine with a non-speaking
order. This Court dealing with the impact of that order
observed as follows:
"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
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that issue is directly applicable."
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Then the Court proceeded to consider whether the matter in
issue has been either explicitly or implicitly decided.
Dealing with that aspect of the matter the Court further
observed:
"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
interference. 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 re-opened. But 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 on mere
guesswork.... 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 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
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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."
If a non-speaking order of dismissal cannot operate as res
judicata, an order permitting the withdrawal of the leave
petition for the same reason cannot so operate. The case in
hand stands on a still better footing than the case of
Workmen of Cochin Port Trust (supra).
Next reliance was placed on Punjab Beverages Pvt. Ltd.
v. Suresh Chand & Anr. In that case one of the contentions
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raised was that no application for approval was made by the
appellant to the Industrial Tribunal and that there was thus
contravention of section 33 (2) (b) of the Industrial
Disputes Act, 1947. An application for approval was in fact
made under section 33 (2) (b), but that was withdrawn and
the argument advanced was that the withdrawal was tantamount
to refusal of approval, that the ban imposed by section 33
(2) (b), therefore, continued to operate and that the order
of dismissal passed by the appellant was void and
inoperative. The contention was, however, repelled and this
Court observed:
"Where, however, the application for approval
under section 33 (2) (b) is withdrawn by the employer
and there is no decision on it on merits, it is
difficult to see how it can be said that the approval
has been refused by the Tribunal. The Tribunal having
had no occasion to consider the application on merits
there can be no question of the Tribunal refusing
approval to the employer. It cannot be said that where
the application for approval is withdrawn, there is a
decision by the Tribunal to refuse to lift the ban. The
withdrawal of the application for approval stands on
the same footing as if no application under section 33
(2) (b) has been made at all."
In Hoshnak Singh v. Union of India & Ors. an earlier
petition was dismissed by a non-speaking one word order
’dismissed’. A second petition after pursuing the
alternative remedy was filed. A question arose whether the
same would be barred by the principles analogous to res
judicata. This Court held that the second petition would not
be so barred because the cause of action was entirely
220
different and the dismissal could not stand in the way of
the petitioner invoking the jurisdiction of the High Court
under Article 226 of the Constitution.
Reliance was next placed on Daryao & Ors. v. The State
of U.P. & Ors. In that case the previous petition for a writ
filed by the petitioner before the High Court was withdrawn.
The High Court, therefore, dismissed the said petition with
the express observation that the merits had not been
considered by the High Court in dismissing it and that,
therefore, no order as to costs was passed. It was held by
this Court that the order dismissing the writ petition as
withdrawn could not constitute a bar of res judicata.
Counsel for the respondent union has contended that the
order of rejection may be either explicit or implicit and
that it can be shown from the circumstances of the present
case that the leave petition was withdrawn only after full
arguments when the appellant found that this Court was not
favourably inclined to grant it. In these circumstances it
is argued that the order of withdrawal would amount to the
dismissal of the leave petition and that in this view of the
matter the High Court in the sound exercise of its
discretion was justified in dismissing the writ petition in
limine. In support of this contention the learned counsel
relied upon Shankar Ramchandra Abhyankar v. Krishnaji
Dattatreya Bapat. In that case the respondent first filed a
revision under section 115 of the Code of Civil Procedure.
The revision was, however, dismissed. Thereupon the
respondent moved a petition under Articles 226 and 227 of
the Constitution challenging the same order of the appellate
court. The High Court held that in spite of the dismissal of
the revision petition, it could interfere under Articles 226
and 227 of the Constitution on a proper case being made out.
This Court, however, reversed the order of the High Court
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holding that even on the assumption that the order of the
appellate court had not merged in the order of the Single
Judge who had disposed of the revision petition, a writ
petition ought not to have been entertained by the High
Court when the respondent had already chosen the remedy
under section 115 of the Code of Civil Procedure and that if
there are two modes of invoking the jurisdiction of the High
Court and one of those modes has been chosen and exhausted
it would not be proper and sound exercise of discretion to
grant relief in the other set of proceedings in respect of
221
the same order of the subordinate court. The facts of that
case are materially different from those of the case in hand
and that case is not of much assistance in solving the
problem before us.
In Vasant Vithal Palse’s case (supra) the trade union
filed an application for special leave to appeal to this
Court and the same was rejected. Thereafter the individual
workmen filed a petition under Article 226 of the
Constitution challenging the award without disclosing the
fact that application for special leave made to the Supreme
Court by the trade union had been rejected. The writ
petition was dismissed on the grounds: (1) that the material
facts had been concealed, and (2) that the leave petition
filed by the trade union had been dismissed by the Supreme
Court. That case is also distinguishable on facts, firstly
because there is no concealment of facts in the present
case, and, secondly, the Supreme Court in that case had
dismissed the application for special leave. In the case in
hand the petition has only been permitted to be withdrawn.
It is on the basis of that decision that the High Court had
dismissed the petition in limine.
Next, reliance was placed on A. M. Allison v. B. L.
Sen. This Court dealing with the writ of certiorari observed
as follows:
"A writ of certiorari cannot be issued as a matter
of course. The High Court is entitled to refuse the
writ if it is satisfied that there was no failure of
justice. The Supreme Court declines to interfere, in
appeal, with the discretion of the High Court unless it
is satisfied that the justice of the case requires such
interference."
There is no quarrel with the proposition that a writ of
certiorari is not issued as a matter of course and that the
petitioner has to satisfy the Court that his rights have
been infringed so that there has been failure of justice. In
the instant case the appellant chose to file a petition for
leave to appeal to the Supreme Court but eventually withdrew
the petition and thereafter invoked the jurisdiction of the
High Court under Article 226 of the Constitution and the
High Court in its discretion chose to dismiss the writ
petition in limine only on the ground that the petitioner
had moved an application for special leave before the
Supreme Court and withdrew the same unconditionally. In view
of the law laid down by this Court in a recent decision in
the case of Workmen of Cochin Port Trust (supra) the
decision in Allison’s case has lost its efficacy.
222
In the Management of Western India Match Co. Ltd.,
Madras v. The Industrial Tribunal, Madras & Anr., the
Supreme Court had declined to exercise its discretion in
favour of the petitioner by granting leave under Article 136
of the Constitution against an award of the Industrial
Tribunal without giving any reasons. The Madras High Court
held that in the circumstances of the case it would not be a
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proper exercise of its discretion in admitting the writ
petition despite the evidence that the Industrial Tribunal
failed to give opportunity to the petitioner to produce
evidence and thus violated a principle of natural justice,
when the Supreme Court had dismissed the leave petition
against the award. In that case the Supreme Court had
dismissed the leave petition. The facts were thus materially
different from the facts of the present appeal. Besides,
this Court has taken a different view in the recent case of
Workmen of Cochin Port Trust (supra),
After having analysed the various cases cited, we are
of the view that permission to withdraw a leave petition
cannot be equated with an order of its dismissal. We also
come to the conclusion that in the circumstances of the case
the High Court has not exercised a proper and sound
discretion in dismissing the writ petition in limine on the
sole ground that the application for special leave on the
same facts and grounds had been withdrawn unconditionally.
We accordingly allow the appeal and set aside the
impugned order and the order of the learned Single Judge
dated 9th November, 1972 in writ petition No. 583 of 1972
and send the case back to him for considering the writ
petition on merits. There is, however, no order as to costs.
S.R. Appeal allowed.
223