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PETITIONER: INDIAN OIL CORPORATION LTD.

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT13/08/1986

BENCH: ERADI, V. BALAKRISHNA (J) BENCH: ERADI, V. BALAKRISHNA (J) DUTT, M.M. (J)

CITATION:  1986 AIR 1780            1986 SCR  (3) 553  1986 SCC  (4) 146        JT 1986   132  1986 SCALE  (2)233  CITATOR INFO :  R          1990 SC 334  (22)  RF         1991 SC1309  (3)

ACT:      Constitution of India, 1950-      Art. 226-Writ  Petition-Refusal to  consider on  merits solely on  ground that  a special  leave petition  had  been dismissed by a nonspeaking order-Validity of.      Art. 136-Special Leave Petition-Grant of-Dismissal by a nonspeaking order-Effect of.

HEADNOTE:      The appellant’s  special  leave  petition  against  the award of  the Labour  Court dated  March 11,  1983  granting relief to  its employee-respondent No. 3, was dismissed by a non-speaking order.  In the said proceedings, respondent No. 3 had  also been  represented by  a counsel. Thereafter, the appellant approached  the High  Court by  preferring a  writ petition under Art. 226 of the Constitution seeking to quash the aforesaid  award of  the Labour  Court. The  High  Court admitted the  writ petition  and  granted  interim  stay  of enforcement of the award.      The  third  respondent  unsuccessfully  challenged  the aforesaid  interim   order  by  a  special  leave  petition. Subsequently when  the main  writ petition came up for final hearing before  the Division  Bench of  the High  Court, the third respondent  again raised a preliminary objection as to the maintainability  of the  writ petition.  The High  Court upheld the  preliminary objection  and  dismissed  the  writ petition holding  (i) that  the dismissal  in limine  by the Supreme Court  of the  special leave  petition filed  by the appellant  against  the  award  by  the  non-speaking  order precluded the  appellant from  challenging  the  said  award before the  High Court;  (ii) that  the doctrine of election was applicable  to the  case and the appellant having chosen the remedy of approaching the y superior court and failed in that  attempt,   he  could  not  thereafter  resort  to  the alternative remedy  of approaching the High Court for relief under Article  226 of  the Constitution;  and (iii) that the writ jurisdiction 554

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of the  High Court  under Art. 226 of the Constitution being essentially discretionary  in nature,  it will  be  a  sound exercise of  the court’s discretion to refuse relief in such a situation.      Allowing the  appeal and remanding the case to the High Court for disposal on merits, ^      HELD: 1.(i)  The view  taken by  the High Court was not right and  that the  High Court  should have  gone into  the merits of  the writ  petition without  dismissing it  on the preliminary ground.  The dismissal  by Supreme  Court of the special leave  petition of  the appellant  by a non speaking order did  not operate as a bar against the appellant in the matter of challenging the impugned award of the Labour Court by resort  to proceedings  before the  High Court under Art. 226 of the constitution. [560D-E]      1.(ii)  The   effect  of  the-  non-speaking  order  of dismissal of  a special leave petition without anything more indicating the  grounds or reasons of its dismissal must, by necessary implication, be taken to be that the Supreme Court had decided  only that  it was  not a fit case where special leave should be granted. Questions which can be said to have been decided  by this  Court expressly,  implicitly or  even constructively while  dismissing the  special leave petition cannot,  of  course,  be  re-opened  in  a  subsequent  writ proceeding  before  the  High  Court.  But  neither  on  the principle of  res judicata  nor on  any principle  of public policy analogous  thereto, would  the order  of  this  court dismissing the  special leave  petition operate  to bar  the trial of  identical issues  in a separate proceeding namely, the writ  proceeding before  the High  Court merely  on  the basis of  an uncertain  assumption that the issues must have been decided  by this  Court at  least by implication. It is not correct  or safe to extend the principle of res judicata or constructive  res judicata  to such  an extent  so as  to found it on mere guesswork. [558C-G]      Workmen of  Cochin Port  Trust v.  Board of Trustees of the Cochin  Port Trust  and Another,  [1978] 3  SCC 119  and Ahmedabad Manufacturing  & Calico  Printing Company  Ltd. v. Workmen and Anr, [1981] 3 SCR 213, relied upon      Wilson  v.   Colchester  Justices,   (1985)-Vol.  2-All England Law Reports at page 97, referred to.      2. It  is not  the  policy  of  the  Supreme  Court  to entertain special 555 leave petitions  and grant  leave  under  Art.  136  of  the Constitution save  in those  cases  where  some  substantial question of  law of general or public importance is involved and there  is manifest injustice resulting from the impugned order or judgment. Moreover, having regard to the very heavy backlog of  work in  the Supreme  Court and the necessity to restrict the intake of fresh cases by strictly following the criteria aforementioned, it has very often been the practice of the Supreme Court not to grant special leave except where the party  cannot claim  effective relief by approaching the concerned High  Court under Art. 226 of the Constitution. In such cases  also special  leave petitions  are  quite  often dismissed only  by passing a non-speaking order and it would work extreme  hardship and  injustice if the High Court were to close  its doors  to the petitioner and refuse him relief under Art.  226 of  the Constitution  on the  sole ground of dismissal of special leave petition. [559A-E]      Workmen of  Cochin Port  Trust v.  Board of Trustees of the Cochin  Port Trust  and Another,  [1978] 3  SCC 119  and Ahmedabad Manufacturing  & Calico  Printing Company  Ltd. v.

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Workmen and Anr, [1981] 3 SCR 213, followed.      3. The  doctrine of  election referred  to by  the High Court has  no application  at all  to the present situation. [560F]      Shankar Ramchandra  Abhyankar v.  Krishnaji  Dattatreya Bapat, [1970] 1 SCR 322, distinguished.      4.  The   grant  of   leave  under   Art.  226  of  the Constitution is  undoubtedly in  the discretion  of the High Court but the exercise of that discretionary Jurisdiction is to be guided by established legal principles. It will not be a sound  exercise of that discretion to refuse to consider a writ petition  on its  merits solely  on the  ground that  a special leave  petition filled  by  the  petitioner  in  the Supreme Court  had been  dismissed by  a non-speaking order. [561A-B]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal  No.  1257 (NL) of 1985.      From the Judgment and order dated 24th January, 1985 of the Patna  High Court in Civil Writ Jurisdiction No. 5877 of 1983.      M.K. Banerjee,  Sol. Genl, D.N. Misra, B.D. Barucha and A.M. Dittia for the Appellant. 556      M.K. Ramamurthy  and Mrs.  Gyan Sudha  Mishra  for  the Respondents.      The Judgment of the Court was delivered by      BALAKRISHNA ERADI,  J. The  short question  that arises for decision  in this appeal by special leave is whether the dismissal in limine of a Special Leave Petition filed before this Court  by a  party challenging  the award  of a  Labour Court  would  preclude  the  said  party  from  subsequently approaching  the   High  Court  under  Article  226  of  the Constitution seeking to set aside the said award.      Having regard to the nature of the question arising for determination, it  is not  necessary for  us to  set out  in detail the  facts of  the case and a brief narration thereof would suffice.  Respondent No.  3 was appointed in 1963 as a Sales officer in the service of the appellant-The Indian oil Corporation. He  was  dismissed  from  service  in  1969  on charges of  misconduct but was subsequently reinstated under orders of the Labour Court, Patna before which an industrial dispute had  been raised.  During the period when Respondent No. 4  was out  of employment  consequent on  his dismissal, some of  his juniors  had been  promoted  to  higher  posts. Subsequent to  his reintstatement,  Respondent No. 3 claimed that he  was entitled to be given promotion with effect from the date  on which  his juniors were promoted and also to be given the  higher pay scale of Rs. 1025-1625 from such date. This claim  was not accepted by the appellant and that again gave  rise   to  another   industrial  dispute.   The  State Government of  Bihar referred the said dispute to the Labour Court, Patna  on September 26, 1980. The Labour Court by its award dated  March 11,  1983 held  that Respondent  No.3 was entitled to  be paid  salary in  the scale  of Rs. 1025-1625 with effect  from December  30, 1970, that being the date on which his  juniors were  promoted to  that scale. It further directed that  the 3rd  Respondent should  be promoted  from grade ’B’  to grade ’C’ and should also be given the benefit of revision in the pay scales of those grades.      Aggrieved by  the said  award, the appellant moved this Court under  Article  136  of  the  Constitution  by  filing

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Special Leave  Petition No.  9147 of  1983. Respondent No. 3 had filed  a caveat before this Court and he was represented by Counsel  at the  time when the special leave petition was heard. This Court on September 9, 1983 dismissed the special leave petition  by a  non-speaking order,  which was  in the following terms: 557      "The special leave petition is dismissed.",      Thereafter the  appellant approached  the High Court of Patna by preferring a writ petition under Article 226 of the Constitution seeking  to quash  the aforesaid  award of  the Labour Court  dated March  11, 1983.  The High  Court by its order dated  January 31, 1984 admitted the writ petition and granted interim stay of enforcement of the award. Thereupon the 3rd  Respondent came  up to  this Court  challenging the order of  the High  Court admitting  the writ  petition  and granting interim stay of the award. The principal contention taken in  the special leave petition was that in view of the order of  this Court  dated September 9, 1983 dismissing the special leave  petition (S.L.P.  No. 2770  of 1984) filed by the appellant  against the award of the Labour Court, it was not legally  open to  the appellant, thereafter, to approach to the  High Court  under Article  226 of  the  Constitution challenging the  very same  award. This  Court after hearing both sides,  dismissed the  special leave  petition filed by the 3rd  Respondent by  the following order dated August 17, 1984:-           "Special Leave Petition is dismissed. We hope that           the High  Court will  dispose of the writ petition           as expeditiously  as  possible  preferably  within           four  months  from  today.  In  the  meantime  the           respondents will  deposit  in  the  High  Court  a           further sum  of Rs.  10,000 (apart  from Rs. 5,000           which has  already been deposited towards the cost           of the  petitioner) within  two weeks  from today,           which amount  the petitioner will be at liberty to           withdraw in  case the  Writ Petition  will not  be           disposed of within four months from today. "      Subsequently, when  the writ petition came up for final hearing before  a Division  Bench of the High Court, the 3rd Respondent  again   urged  the  aforesaid  contention  as  a preliminary objection  to the  maintainability of  the  writ petition. That  contention was  upheld by the Division Bench which took  the view  that the  dismissal in  limine by this Court of  the special  leave petition filed by the appellant against the award by the non-speaking order reproduced above precluded the  appellant from  challenging  the  said  award before the High Court under Article 226 of the Constitution. In the  opinion of  the High  Court the doctrine of election was applicable  to the  case and the appellant having chosen the remedy  of approaching  a superior  Court and  failed in that  attempt,   he  could  not  thereafter  resort  to  the alternative re- 558 medy of  approaching the High Court for relief under Article 226 of  the Constitution.  Another reason stated by the High Court is  that the writ jurisdiction of the High Court under Article  226   of   the   Constitution   being   essentially discretionary in  nature, it will be a sound exercise of the Court’s discretion  to refuse relief in such a situation. On the  basis   of  the  aforesaid  reasoning  the  High  Court dismissed the  writ petition  filed by the appellant without going into  the merits of the case. The appellant challenges the correctness  of the  decision so  rendered by  the  High Court.

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    We are  clearly of  opinion that  the view taken by the High Court was not right and that the High Court should have gone into the merits of the writ petition without dismissing it on  the preliminary  ground. As observed by this Court in Workmen of  Cochin Port  Trust v.  Board of  Trustees of the Cochin Port  Trust and  Another, [1978]  3  S.C.C.  119  the effect of  a non-speaking  order of  dismissal of  a special leave petition  without anything more indicating the grounds or reasons  of its dismissal must, by necessary implication, be taken  to be that this Court had decided only that it was not a  fit case  where special leave should be granted. This conclusion may  have been  reached  by  this  Court  due  to several reasons. When the order passed by this Court was not a speaking  one, it is not correct to assume that this Court had necessarily  decided implicitly  all  the  questions  in relation to  the  merits  of  the  award,  which  was  under challenge before this Court in the special leave petition. A writ  proceeding   is  a   wholly  different   and  distinct proceeding. Questions which can be said to have been decided by this  Court expressly,  implicitly or even constructively while dismissing  the  special  leave  petition  cannot,  of course, be  re-opened in a subsequent writ proceeding before the High Court. But neither on the principle of res judicata nor on  any principle  of public  policy analogous  thereto, would the  order of  this Court dismissing the special leave petition operate  to bar  the trial of identical issues in a separate proceeding  namely, the  writ proceeding before the High Court  merely on  the basis  of an uncertain assumption that the issue must have been decided by this Court at least by implication.  It is  not correct  or safe  to extend  the principle of  res judicata  or constructive  res judicata to such an extent so as to found it on mere guesswork.      This  enunciation   of  the  legal  position  has  been reiterated by this Court in Ahmedabad Manufacturing & Calico Printing Company  Ltd. v.  Workmen and  Anr, [1981] 3 S.C.R. 213. The  principles laid  down in  the two  decisions cited above fully govern the present case. 559      It is not the policy of this Court to entertain special leave petitions  and grant  leave under  Article 136  of the Constitution save  in those  cases  where  some  substantial question of  law of general or public importance is involved or there  is manifest  injustice resulting from the impugned order or judgment. The dismissal of a special leave petition in limine by a non-speaking order does not therefore justify any inference  that by necessary implication the contentions raised in  the special  leave petition  on the merits of the case have  been rejected  by this  Court.  It  may  also  be observed that  having regard  to the  very heavy  backlog of work in  this Court and the necessity to restrict the intake of  fresh   cases  by   strictly  following   the   criteria aforementioned, it  has very often been the practice of this Court not  to grant  special leave  except where  the  party cannot claim  effective relief  by approaching the concerned High Court  under Article  226 of  the Constitution. In such cases also  the special  leave  petitions  are  quite  often dismissed only by passing a non-speaking order especially in view of  the rulings  already given by this Court in the two decisions afore-cited,  that such  dismissal of  the special leave petition  will not  preclude the party from moving the High Court  for seeking  relief under  Article  226  of  the Constitution. In  such cases  it would work extreme hardship and injustice  if the  High Court were to close its doors to the petitioner  and refuse  him relief  under Article 226 of the Constitution  on the  sole ground  of dismissal  of  the

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special leave petition.      In Wilson  v. Colchester  Justices,  [1985]-Vol.  2-All England Law  Reports at  page 97  the House  of Lords had to consider the question whether the refusal of leave to appeal by  the  Appeal  Committee  of  the  House  of  Lords  would constitute an  implied approval  of the  decision which  had been unsuccessfully  sought to  be impugned.  The  following observations of  Lord Roskill  are apposite  in our  present context:           "Seemingly the  Divisional Court  felt  that  this           refusal indicated at least implied approval of the           decision which  it had  been unsuccessfully sought           to impugn.  Counsel surprised  your Lordships  by.           saying that  this impression was widespread in the           profession. My Lords, if that were so, as my noble           and learned  friend Lord  Diplock remarked  during           the argument, the sooner this erroneous impression           is emphatically  corrected by  your Lordships  the           better. There are a multitude of reasons why, in a           particular case, leave to appeal may be refused by           an Appeal Committee. I shall not attempt to embark           on an exhaustive list 560           for it  would be  impossible to  do so. One reason           may be that the particular case raises no question           of general  principle but  turns on its own facts.           Another may  be that  the facts  of the particular           case  are   not  suitable   as  a  foundation  for           determining some  question of  general  principle.           Your Lordships  House is  only able,  in any given           year, to  hear and  determine a  limited number of           cases and it is important for the evolution of the           law  as   a  whole  that  those  cases  should  be           carefully chosen.  Conversely the  fact that leave           to appeal  is given is not of itself an indication           that the  judgments below are thought to be wrong.           It may  well be  that leave is given in order that           the relevant  law may  be authoritatively restated           in clearer  terms. It  is not difficult to find in           the books  examples of cases where, after leave to           appeal has  been refused in one case, another case           will later arise in which leave to appeal has been           given as  a result  of which  the decision against           which leave  to appeal  was originally  refused is           shown to  have been wrong. But that of itself does           not mean  that the  initial refusal  of leave  was           wrong."      Thus the  correct legal  position is that the dismissal by this Court of the Special Leave Petition No. 9147 of 1983 by the  non-speaking order  of this Court dated September 9, 1983 did  not operate  as a bar against the appellant in the matter of challenging the impugned award of the Labour Court by resort to proceedings before the High Court under Article 226 of the Constitution.      The doctrine  of election referred to by the High Court has no  application at  all to the present situation and the decision  in   Shankar  Ramchandra  Abhyankar  v.  Krishnaji Dattatreya  Bapat,   [1970]  1   S.C.R.   322   is   clearly distinguishable. The  question that  arose in  that case was whether a  party who had a choice of resorting to one of two remedies before the same Court namely, the High Court, could successively move  the High  Court under  Section 115 of the Civil Procedure Code and again under Articles 226 and 227 of the Constitution.  The question was answered in the negative for the  simple reason  that the  order passed  by the  High

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Court under  the first  proceeding would conclude the matter inter-parties. In such a situation the party had to exercise his choice  and elect which remedy he would resort to in the High Court.      The  grant   of  leave   under  Article   226  of   the Constitution is un- 561 doutbedly in  the discretion  of  the  High  Court  but  the exercise of  that discretionary jurisdiction is to be guided by established  legal principles.  It will  not be  a  sound exercise of  that discretion  to refuse  to consider  a writ petition on  its merits  solely on the ground that a special leave petition  filed by the petitioner in the Supreme Court had been dismissed by a non-speaking order.      Apart from  the above, in the present case there is the additional fact that after the writ petition was admitted by the High  Court  the  3rd  Respondent  challenged  the  High Court’s order  admitting  the  writ  petition  and  granting interim stay of the award by filing a special leave petition in this  Court. In  that  special  leave  petition  the  3rd Respondent had raised the very same objection concerning the maintainability of  the writ  petition in  the light  of the dismissal of  the prior  special leave petition filed by the appellant. This  Court dismissed  the special leave petition and requested the High Court to dispose of the writ petition within four  months from  the date of the order (17.8.1984). Obviously, the intention of this Court in passing that order was that the writ petition should be considered and disposed of by  the High  Court on the merits within the said period. It is  unfortunate that  this order has not been adverted to in the judgment of the High Court now under appeal.      In the light of the aforesaid discussion, we allow this appeal, set  aside the  order of  High Court  and remand the writ petition  to the High Court for disposal on the merits. Having regard to the fact that the case concerns the service benefits claimed  by the  3rd Respondent,  the High Court is requested to  dispose of  the  writ  petition  as  early  as possible. The parties will bear their respective costs. M.L.A.                                       Appeal allowed. 562