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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ACT:      Special  leave   petition  allowed   to  be   withdrawn unconditionally-Whether  amounts   to   a   dismissal   and, therefore, a bar to entertain a fresh petition under Article 226 of  the Constitution on the same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dated 21st of August, 1972 which  reads: "Upon  hearing counsel  the Court allowed the special  leave petition  to  be  withdrawn".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 215 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 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

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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 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

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    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

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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