Ahmedabad Manufacturing & Calico
Printing Co. Ltd. Vs. Workmen & ANR  INSC 64 (12 March 1981)
MISRA, R.B. (J) 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)
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withdrawn unconditionally-Whether amounts to a dismissal and, therefore, a bar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.
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withdrawn".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.  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 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.,  3 SCR 971, followed.
Punjab Beverages Pvt. Ltd. v. Suresh Chand
and Anr.,  3 SCR 370; Hoshnak Singh v. Union of India and Ors.,  3
SCR 399; Daryao and Ors. v. The State of U.P. and Ors.,  1 SCR 574,
Vasant Vithal Palse and Ors, v The Indian
Hume Pipe Co. Ltd. and Anr.,  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.
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
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 215 heavy chemicals
and engages about 750 workmen in three such 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
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 216
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
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 217 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 that issue is directly
applicable." 218 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 219 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 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
This Court, however, reversed the order of
the High Court 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 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
S.R. Appeal allowed.