REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  4223  OF 2008 ARISING OUT OF

SPECIAL LEAVE PETITION (C) NO. 1598 OF 2007

RAMESH CHANDRA SANKLA ETC. … APPELLANTS

VERSUS

VIKRAM CEMENT ETC. … RESPONDENTS

WITH CIVIL APPEAL NO.   4224    OF 2008

ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 1600 OF 2007

ASHA RAM MALVIYA ETC. … APPELLANTS

VERSUS

VIKRAM CEMENT ETC. … RESPONDENTS WITH

CIVIL APPEAL NO.  4225       OF 2008 ARISING OUT OF

SPECIAL LEAVE PETITION (C) NO. 2237 OF 2007 RATAN SINGH RATHORE & ORS. … APPELLANTS

VERSUS

VIKRAM CEMENT … RESPONDENT

WITH

CIVIL APPEAL NO.  4226   OF 2008 ARISING OUT OF

SPECIAL LEAVE PETITION (C) NO. 2245 OF 2007 DWARKA PRASAD AGARWAL & ORS. … APPELLANTS

VERSUS

VIKRAM CEMENT & ORS. … RESPONDENTS

WITH CIVIL APPEAL NO.   4227         OF 2008

ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 5707 OF 2007

VIKRAM CEMENT … APPELLANT

VERSUS

HEMANT KUMAR JAIN & ORS. … RESPONDENTS

J U D G M E N T C.K. THAKKER, J. 1. Leave granted.

2. All these appeals arise out of common

judgment and order passed by the Division Bench

of the High Court of Madhya Pradesh (Indore

Bench) on October 31, 2006 in Writ Appeal No.

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353  of  2006  and  companion  matters  and  also

against an order dated December 11, 2006 in

Review Petition M.C.C. No. 1062 of 2006 and

cognate  matters.  The  orders  passed  by  the

Division  Bench  of  the  High  Court  have  been

challenged by both the parties i.e. employees/

workmen as also by the employer/Company.

FACTUAL BACKGROUND 3. To  appreciate  the  controversy  raised

in the present appeals, few relevant facts may

be noted.

4. Vikram Cement (‘Company’ for short) is

engaged in the business of manufacturing cement

of different grades and has its plant at Vikram

Nagar, Khor, Madhya Pradesh. Appellants in one

set  of  appeals  are  employees  engaged  and

working in the factory of the Company. It was

the case of the Company that with a view to

rationalize  its  manpower,  it  introduced  a

Voluntary Retirement Scheme (‘the Scheme’ for

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short) on July 12, 2001 in the Cement Plant.

The said scheme provided voluntary retirement

of workmen who had either completed 40 years of

age  or  put  in  at  least  10  full  years  of

service.  They  were  to  be  paid  benefits  as

provided  in  the  scheme.  The  scheme  was

displayed  on  the  Notice  Board  and  widely

publicized through local press. It appears that

out  of  1500  employees,  about  460  employees

opted  for  voluntary  retirement  which  was

accepted by the Company and they were granted

all  benefits  towards  ‘full  and  final

settlement’ in terms of the scheme. This was

done during July-September, 2001. According to

the  Company,  the  workmen  received  those

benefits, issued stamped receipts in token of

acceptance of the amount under the scheme and

ceased to remain ‘workmen’ of the Company. The

relationship  between  the  ‘employer  and

employee’ came to an end.  According to the

Company,  however,  during  September-October,

2001, some of the employees who had opted for

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voluntary retirement, accepted benefits under

the scheme and who were no more employees of

the Company approached Labour Court, Mandsour

by invoking Section 31 of the Madhya Pradesh

Industrial  Relations  Act,  1960  (hereinafter

referred  to  as  ‘the  Act’),  inter  alia,

contending  that  they  had  not  opted  for

voluntary retirement; they continued to remain

workmen of the Company; they were pressurized,

threatened and forced to accept some amount;

though they were willing to work and continue

as  employees  of  the  Company,  they  were  not

allowed to join duty. It was also their case

that  they  were  not  paid  legal  and  proper

benefits to which they were otherwise entitled

even under the scheme. The so-called payment

said to have been made to them was also not

adequate and ‘full and final settlement’ of the

dues in accordance with law. It was, therefore,

contended by them that they were entitled to

reinstatement.  As  they  were  not  allowed  to

continue  as  workmen  by  the  Company,  the

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impugned action was in the nature of an order

of  ‘removal’  or  termination  of  service  and

appropriate relief, therefore, was required to

be granted to them.

ORDER OF LABOUR COURT 5. Cases  were  duly  registered  by  the

Labour Court. Notices were issued. The Company

appeared and raised preliminary objection as to

the maintainability of the claim put forward by

the workmen. It was contended by the Company

that the workmen had accepted the scheme and

received  the  amount  towards  ‘full  and  final

settlement’ and left the Company for ever. It

was not a case of ‘removal’ or ‘termination’ of

services and the applications were liable to be

dismissed as they were no more in employment. A

prayer  was,  therefore,  made  to  uphold

preliminary  objections  which  were  of  legal

nature  and  to  dismiss  cases  only  on  that

ground. The Labour Court considered objections

raised by the Company and reply of the workmen.

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It,  however,  opined  that  there  was  ‘factual

dispute’ between the parties and it was not

possible  to  dismiss  cases  as  being  not

maintainable.   It,  therefore,  directed  the

Company by an order dated September 16, 2003 to

file written statement so that the matter may

be decided on merits. The Company challenged

the said order by approaching the Industrial

Court, Madhya Pradesh at Indore but the said

application  was  also  dismissed  by  the

Industrial  Tribunal  vide  an  order  dated

February 11, 2004. The Company then filed reply

contending that the applications filed by the

‘so  called  workmen’  were  clearly  an

‘afterthought’, more so, when they had accepted

the amounts/benefits under the scheme. Hence,

the  claim  was  wholly  ill-founded.  It  was

averred by the Company that some of the workmen

had  even  approached  the  Authority  under  the

Payment of Gratuity Act for increased amount of

gratuity,  thus,  clearly  exhibiting  and

admitting to the severance of relationship of

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master and servant between the parties. It was

contended that the workmen could not be allowed

to resile from the stand taken by them earlier.

They were estopped from challenging the factum

of voluntary retirement.

6. The Company moved the Labour Court on

November 9, 2004 requesting the Court to frame

three additional issues viz., 4(a), 4(b) and 4

(c) and hear them as preliminary issues. The

said issues read as under:

4(a)  Whether  the  application  is  barred  by

estoppel?

4(b) Whether  the  application  filed  by  the

applicant can be heard under Sections

31(3), 61 and 62 of MPIR Act?

4(c) Whether the application is time barred?

7. The Labour Court accepted the request

of the Company to frame issues 4(a), 4(b) and 4

(c). It, however, rejected the prayer to decide

those  issues  as  ‘preliminary  issues’  before

deciding other issues on merits.  According to

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the  Labour  Court,  it  was  not  advisable  to

decide the issues as preliminary issues without

recording  evidence.  The  application  of  the

Company was, therefore, dismissed.

ORDER OF INDUSTRIAL COURT 8. Being aggrieved by the said order, the

Company again approached the Industrial Court.

It was contended that the preliminary issues

raised  by  the  Company  and  approved  by  the

Labour Court were ‘purely legal issues’ and the

Labour  Court  was  wrong  in  treating  them  as

mixed issues of law and fact which required

leading of evidence. The order passed by the

Labour Court was, therefore, liable to be set

aside.

9. The  Industrial  Court,  however,  held

that the Labour Court was right in rejecting

the prayer of the Company to decide issues 4

(a),  4(b)  and  4(c)  before  deciding  other

issues. According to the Industrial Court, it

was  the  case  of  the  employees  that  their

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signatures had been taken on the applications

for voluntary retirement by exercising pressure

and under duress. It was also their case that

they had been paid ‘lesser amount’ than the

amount  declared  under  the  scheme.  Moreover,

they had not accepted the amount voluntarily

and with free consent but the same was paid to

them under coercion. The Court also noted that

the employees had given undertaking that they

were ready to refund the amount received by

them.  The  Industrial  Court,  in  the

circumstances, observed that the dispute could

not  be  resolved  without  recording  evidence.

Accordingly, the prayer made by the Company to

decide  issues  of  jurisdiction  and

maintainability  as  preliminary  issues  was

rejected by the Industrial Court.

ORDER OF SINGLE JUDGE OF HIGH COURT

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10. Being aggrieved by the said order, the

Company approached the High Court. The learned

Single Judge of the High Court, by an order

dated  February  6,  2006,  dismissed  the  writ

petition observing, inter alia, that the order

passed by the Labour Court and confirmed by the

Industrial  Court was  interlocutory in  nature

and did not decide any controversy. It merely

deferred the decision on the question as to

maintainability  of  claim  along  with  other

issues.  Such order could not be said to be

without jurisdiction so as to interfere with it

in exercise of supervisory jurisdiction under

Article  227  of  the  Constitution.  No  finding

much less categorical finding one way or the

other  had  been  recorded  and  rights  of  the

parties  were  yet  to  be  crystallized  by  the

Court.  It  was  also  observed  that  whether  a

particular  issue  arising  from  the  pleading

between  the  parties  be  tried  as  preliminary

issue or not should be examined by the Court

keeping in view the provisions of Order XIV of

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the Code of Civil Procedure, 1908 (hereinafter

referred to as ‘the Code’). On the facts and in

the circumstances of the case, both the Courts

were right in not deciding the issues as to

jurisdiction  and maintainability  of claim  as

preliminary  issues.  No  interference  was,

therefore,  called for.  Accordingly, the  writ

petition was dismissed.

EARLIER SLP 11. The Company challenged the said order

by filing Special Leave Petition in this Court.

Notice was issued and interim stay of further

proceedings  was  granted  by  this  Court.  The

workmen  appeared.  On  September  1,  2006,  the

matter was placed before the Court. During the

intervening period, however, an Act known as

the  Madhya  Pradesh  Uchcha  Nyayalaya  (Khand

Nyayapeeth  Ko  Appeal)  Adhiniyam,  2005

(‘Adhiniyam’ for short) came into force. This

Court, therefore, held that it was not inclined

to  entertain  Special  Leave  Petition  under

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Article  136  of  the  Constitution  in  view  of

availability  of  intra  court  appeal  (Writ

Appeal)  under the  Adhiniyam and  accordingly,

Special  Leave  Petition  was  dismissed  with

liberty to the Company to approach the High

Court.  Interim  relief  granted  earlier  was,

however, ordered to be continued for a period

of two months. But it was expressly stated by

this Court that the question of maintainability

of intra court appeal would be decided by the

High Court in accordance with law.

ORDER OF DIVISION BENCH 12. In view of the above order passed by

this Court, intra court appeals were filed by

the Company. The Division Bench of the High

Court, as stated above, disposed of the appeals

by an order dated 31st October, 2006. It was

held  by  the  Division  Bench  that  the  writ

petitions  filed  by  the  Company  were  under

Article 227 of the Constitution and the learned

Single  Judge  was  exercising  supervisory

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jurisdiction and intra court appeals were not

maintainable and were liable to be dismissed.

The Division Bench, however, held that since

the  respondent-workmen  had  received  the

benefits under the scheme, pocketed the amount

and approached the Labour Court claiming that

they had not voluntarily accepted the scheme

and  the  benefit  thereunder,  it  would  be

equitable to direct each of the employees who

had filed a petition under Section 31(3) of the

Act to return the benefit so received to the

employer,  subject  to  the  undertaking  by  the

Company  that  in  the  event  the  Labour  Court

allows the claim and grants benefits to the

workmen, the same would be restored to them by

the Company with interest @ 6% per annum.  

13. The workmen are much aggrieved by that

part of the order which directed them to refund

the  amount.  They  filed  review  petitions  but

they were dismissed by the Division Bench on

December 11, 2006. The workmen have, therefore,

approached this Court by filing Special Leave

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Petitions in which notices were issued and the

Company  appeared.  The  Company,  on  the  other

hand,  felt  aggrieved  by  the  order  of  the

Division Bench holding intra court appeal not

maintainable as also by the order passed by the

Labour Court, confirmed by the Industrial Court

and also by the High Court not deciding issues

of  jurisdiction  and  maintainability  of

petitions filed by the employees as preliminary

issues before other issues are taken up for

consideration.  Their  Special  Leave  Petitions

were  also  ordered  to  be  heard  along  with

Special Leave Petitions filed by the workmen

and that is how all the matters are before us.

SUBMISSIONS OF COUNSEL 14. We have heard learned counsel for the

parties.

15. The  learned  counsel  for  the  workmen

vehemently contended that the order passed by

the  Division  Bench  of  the  High  Court  was

without jurisdiction so far as it directed the

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workmen to refund the amount received by them.

The counsel submitted that once the Division

Bench held that intra court appeals were not

maintainable, it had no power to pass any order

directing a party to do or not to do something.

Such  direction  is  without  authority  of  law,

there is total lack of jurisdiction and the

order is  non est. No direction of refund of

amount, therefore, could have been issued by

the  Division  Bench.  On  that  ground  alone,

appeals  filed  by  the  workmen  deserve  to  be

allowed. Alternatively, it was submitted that

once it was the case of the workmen that they

had not accepted the scheme voluntarily, they

were deemed to be continued in employment. If

it is so, they would be entitled to receive

wages. But they were not allowed to join duty

and to work. No payment of wages had been made

to them by the Company. The Company, for that

reason also, cannot ask for repayment of amount

paid to them. At the most, the said amount can

be  adjusted  towards  payment  of  wages.  The

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counsel also submitted that being aggrieved by

the order passed by the Industrial Court, the

Company  filed  a  writ  petition  which  was

withdrawn. No express liberty was granted to

the Company to file fresh petition on the same

cause  of  action.  Thereafter  fresh  petitions

were filed by the Company. Such petitions were

not maintainable and ought not to have been

entertained  by  a  Single  Judge  of  the  High

Court.  They  were  barred  by  the  doctrine  of

constructive res judicata as also on the ground

of abandonment of claim.

16. On merits, it was submitted that the

workmen were not paid the dues which ought to

have been paid to them. A meager amount was

offered  which  was  accepted  by  workmen  under

duress. It was less than the amount required to

be paid under the scheme. The payment was made

in remote past and at this stage, it would be

very difficult for them to refund the amount.

The  High  Court  should  not  have  ordered

repayment  of  the  amount  to  the  Company  and

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ought  to  have  directed  the  Labour  Court  to

proceed  to  decide  the  matter  on  merits  by

expressly  clarifying  that  the  payment  would

abide by the final outcome of the cases before

the Labour Court. On all these grounds, it was

submitted that the order passed by the Division

Bench deserves to be set aside by restoring the

order of the learned Single Judge.

17. The learned counsel for the Company,

on the other hand, supported that part of the

order  of  the  Division  Bench  which  directed

refund of amount by the workmen to the Company.

It was, however, submitted that the Division

Bench  was  not  right  in  not  entertaining,

dealing with and deciding intra court appeals

on  the  ground  that  such  appeals  were  not

maintainable. The counsel submitted that while

deciding the issue as to whether intra court

appeal is or is not maintainable, nomenclature

or reference to a particular Article of the

Constitution  in  the  writ  petition  is  not

material.  Similarly,  observations  of  learned

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Single Judge that he is exercising the power

under  a  particular  provision  of  the

Constitution is also not decisive. The Division

Bench  was  required  to  apply  its  mind

independently  and  to  consider  the  nature  of

controversy  raised  before  the  Single  Judge.

And if it finds that the petition was under

Article 226 of the Constitution, the Division

Bench  was  enjoined  to  entertain  intra-court

appeals  and  to  decide  them  on  merits.  The

counsel  alternatively submitted  that even  if

the Division Bench felt that the writ petitions

were under both the Articles, viz. Article 226

and Article 227 of the Constitution, as per

settled law, no party can be deprived of right

of intra court appeal merely by referring to

the  other  Article  i.e. Article  227  of  the

Constitution, over and above Article 226 of the

Constitution  under  which  such  right  is

available to the party aggrieved by an order

passed by a Single Judge. It was, therefore,

submitted  that  the  appeals  of  the  Company

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should  be  allowed  and  the  matter  may  be

remitted  to  the  Division  Bench  of  the  High

Court so as to enable the Court to decide intra

Court appeals on merits in accordance with law.

18. The  learned  counsel  also  contended

that an objection as to non-maintainability of

writ petitions on the ground of constructive

res judicata/abandonment of claim is not well-

founded. First of all, no such contention was

ever advanced either before the learned Single

Judge or before the Division Bench of the High

Court. It is also not raised in Special Leave

Petitions.  Such  a  plea  has  been  taken  at  a

belated  stage  as  an  ‘afterthought’.  Even

otherwise, the contention is not well-founded

and is totally misconceived.  The Company filed

a  writ  petition  against  more  than  200

employees.  The  Registry  of  the  High  Court

raised an objection as to maintainability of

such petition. The petition was described as

‘defective’  or  under  an  ‘office  objection’

having  ‘logistic  problem’.  The  Company

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considered the point raised by the Office and

withdrew  the  petition  to  file  separate  and

independent  petitions.  Individual  petitions

were  then  filed  which  were  decided  by  the

Court.  The objection against maintainability

of writ petitions has thus no force.  

19.  On merits, the counsel contended that

the  Labour  Court,  Industrial  Court  and  the

learned Single Judge of the High Court were in

error  in  not  deciding  the  issue  as  to

maintainability of claims as preliminary issue.

It was an admitted fact that the scheme was

introduced by the Company, it was accepted by

the workmen and payment was made to them. Once

these  facts  are  admitted,  there  remained  no

relationship of master and servant between the

Company and the workmen. It is not even the

case of the workmen that they have not been

paid. In view of these facts, the Company was

right in requesting the Labour Court to decide

that the question whether claim petitions filed

by the workmen were maintainable. The question

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was pure question of law. It did not require

investigation of facts. The issue, therefore,

ought to have been heard as preliminary issue.

According to the counsel, the fact whether the

claimants  were  workmen  or  not  was  a

‘jurisdictional’  fact.  The  Labour  Court  was

having ‘limited jurisdiction’ under the Act. It

was, therefore, obligatory on the Labour Court

to  decide  whether  the  jurisdictional  or

preliminary  fact  which  could  confer

jurisdiction on the court was present. By not

doing so, it had committed jurisdictional error

which was required to be corrected by the High

Court in certiorari-jurisdiction. But the High

Court  also  committed  the  same  error.  Hence,

this Court may interfere with the said order by

directing the Labour Court to decide issues 4

(a), 4(b) and 4(c) as preliminary issues.  Even

if  intra  court  appeals  are  held  not

maintainable, the Company is before this Court

under Article 136 of the Constitution and an

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appropriate order, therefore, may be made by

the Court.

MAINTAINABILITY OF INTRA COURT APPEAL

20. So  far  as  intra  court  appeals  are

concerned, the learned counsel for the Company

strenuously urged that the Division Bench of

the High Court was in error in holding that

intra court appeals were not maintainable. He

submitted that Adhiniyam conferred such right

on  the  party  aggrieved  by  a  decision  of  a

Single Judge of the High Court. It was also

submitted  that  this  Court  at  the  time  of

hearing  of Special  Leave Petition  considered

the fact that intra court appeal was available

to the aggrieved party under the Adhiniyam and

disposed of Special Leave Petition by giving

liberty  to  the  appellant  to  approach  the

Division Bench of the High Court though notice

was issued and interim relief was also granted

earlier. It was also urged that the petition

filed  by  the  petitioner-appellant  was  under

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Article 226 and Article 227 of the Constitution

and, hence, a right of intra court appeal could

not be taken away. According to the counsel, a

statement by a Single Judge in the judgment

that he was exercising power of superintendence

under Article 227 of the Constitution is not

final and conclusive. It was, therefore, prayed

that the appeals be allowed by remitting all

the matters to the Division Bench of the High

Court to decide them on merits.

21. We are unable to persuade ourselves to

uphold the contention of the learned counsel.

The  Madhya  Pradesh  Uchcha  Nyayalaya  (Khand

Nyayapeeth Ko Appeal) Adhiniyam, 2005 (Act XIV

of 2006) received the assent of the President

on March 28, 2006. The Act was published in the

Madhya Pradesh Gazette (Extraordinary) on April

05, 2006 and was brought into force “on the 1st

day of July, 1981” [sub-section (2) of Section

1]. The Preamble of the Act states that it is

an Act to provide for an appeal from a judgment

or order passed by one Judge of the High Court

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in  exercise  of  original  jurisdiction to  a

Division Bench of the same High Court.

22. Section  2  is  relevant  and  reads  as

under:

2. Appeal  to  the  Division  Bench  of the  High  Court  from  a  Judgment  or order of one Judge of the High Court made  in  exercise  of  original jurisdiction.—(1) An appeal shall lie from a Judgment or order passed by one Judge of the High Court in exercise of original  jurisdiction  under  Article 226 of the Constitution of India, to a Division  Bench  comprising  of  two judges of the same High Court:

Provided that no such appeal shall lie against  an  interlocutory  order  or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. (2) An  appeal  under  sub-section  (1) shall be filed within 45 days from the date  of  order  passed  by  a  single Judge:

Provided  that  any  appeal  may  be admitted  after  the  prescribed  period of  45  days,  if  the  petitioner satisfies the Division Bench that he had  sufficient  cause  for  not preferring  the  appeal  within  such period.

Explanation.—The  fact  that  the petitioner  was  misled  by  any  order, practice or judgment of the High Court

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in  ascertaining  or  computing  the prescribed  period  may  be  sufficient cause within the meaning of this sub- section.

(3)  An  appeal  under  sub-section  (1) shall be filed, heard and decided in accordance with the procedure as may be prescribed by the High Court.

23. Section  3 enables the High Court to

make  Rules  under  the  Act  for  carrying  out

purposes  of  the  Act.  Section  4  repeals  the

Madhya Pradesh Uchcha Nyayalaya (Letters Patent

Appeals Samapthi) Adhiniyam, 1981.  

24. Bare  reading  of  sub-section  (1)  of

Section 2 of the Act, quoted above, leaves no

room for doubt that it allows a party aggrieved

by a decision of a Single Judge of the High

Court to appeal to a Division Bench of the High

Court if a Single Judge has rendered a judgment

or  passed  an  order  in  exercise  of  original

jurisdiction  under  Article  226  of  the

Constitution.  Proviso  to  sub-section  (1)

expressly declares that no such appeal shall

lie  against  an  order  passed  in  exercise  of

26

supervisory jurisdiction under Article 227 of

the Constitution.  

25. It  is, therefore, clear that if the

order is passed by a Single Judge of the High

Court  in  exercise  of  original  jurisdiction

under Article 226 of the Constitution, an intra

court appeal would lie. If, on the other hand,

a  Single  Judge  exercises  power  of

superintendence  under  Article  227  of  the

Constitution, intra court appeal would not be

competent.

26. Precisely, this was the position under

different Letters Patents. For instance, Clause

15 of the Letters Patent as applicable to High

Courts  of  Calcutta,  Madras  and  Bombay

(Chartered High Courts), conferred such right

of Letters Patent Appeal.  It read as under:

15.  Appeal  to  the  High  Court  from Judges of the Court.—And We do further ordain that an appeal shall lie to the said  High  Court  of  Judicature  at Bombay from the judgment (not being a judgment  passed  in  the  exercise  of appellate jurisdiction in respect of a decree or order made in the exercise

27

of appellate jurisdiction by a Court subject to the superintendence of the said  High  Court,  and  not  being  an order  made  in  the  exercise  of revisional jurisdiction and not being a sentence or order passed or made in the  exercise  of  the  power  of superintendence  under  the  provisions of  Section 107 of the Government of India  Act  or  in  the  exercise  of criminal jurisdiction) of one Judge of the said High Court or one Judge of any  Division  Court,  pursuant  to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie  to  the  said  High  Court  from  a judgment of one Judge of the said High Court  or  one  Judge  of  any  Division Court, pursuant to Section 108 of the Government  of  India  Act  made  on  or after  the first day of February One thousand nine hundred and twenty-nine in  the  exercise  of  appellate jurisdiction in respect of a decree or order  made  in  the  exercise  of appellate  jurisdiction  by  a  Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the  right  of  appeal  from  other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors in Our  or  Their  Privy  Council,  as hereinafter provided.

27. The  said clause (Clause 15) came up

for consideration before this Court in several

28

cases.  We  may,  however,  refer  to  only  one

leading judgment on the point in Umaji Keshao

Meshram  &  Ors.  V.  Radhikabai,  Widow  of

Anandrao Banapurkar & Anr., 1986 Supp SCC 401.

In that case, proceedings had been initiated

under the Bombay Tenancy and Agricultural Lands

(Vidarbha  Region)  Act,  1958.   A  person

aggrieved  by  an  order  passed  by  Appellate

Authority  under  the  Act  preferred  revision

before the Revenue Tribunal which was allowed.

The order of the Tribunal was challenged in a

writ  petition  under  Article  227  of  the

Constitution before the High Court of Bombay

(Nagpur Bench).  A Single Judge allowed the

petition.  The order passed by the Single Judge

was then challenged by the aggrieved party by

filing Letter Patent Appeal before the Division

Bench under Clause 15 of the Letters Patent.

The Division Bench of the High Court dismissed

the  appeal  as  not  maintainable.  The  said

decision  was  challenged  by  the  appellant  in

this Court.  

29

28. This  Court  observed  that  the  High

Court of Judicature at Bombay was established

by Letters Patent dated June 26, 1862 issued by

the  British  Crown  pursuant  to  the  authority

conferred on it by the Indian High Courts Act,

1861 (24 and 25 Vict., c. 104). The Letters

Patent  also  conferred  right  to  institute  an

appeal to the Division Bench of the High Court

against  the  ‘judgment’  rendered  by  a  Single

Judge of the same court in certain cases.  

29. Considering the history, tradition and

development of Letters Patent amended from time

to time, the Government of India Acts, 1915 and

1935 and the provisions of the Constitution,

this Court ruled that in case a Single Judge of

the High Court has given a judgment or passed

an  order  in  exercise  of  jurisdiction  under

Article  226  of  the  Constitution,  remedy  of

Letters  Patent  Appeal  is  available  to  the

aggrieved party. Madon, J. who delivered the

judgment  for  the  Court  proceeded  to  observe

that when the facts justify the party to invoke

30

Article 226 or 227 of the Constitution and he

chooses to institute a petition under both the

Articles, he should not be deprived of right of

appeal available under Clause 15 of the Letters

Patent.  

30. His Lordship stated:

“Petitions are at times filed both under Articles 226 and 227 of the Constitution.  The  case  of  Hari Vishnu Kamath v. Syed Ahmad Ishaque and  Ors. (1955)  1  SCR  1104  :  AIR 1955 SC 233, before this Court was of  such  a  type.  Rule  18  provides that where such petitions are filed against orders of the tribunals or authorities specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against decrees or orders of  courts  specified  in  that  Rule, they  shall  be  heard  and  finally disposed of by a Single Judge. The question is whether an appeal would lie from the decision of the Single Judge  in  such  a  case.  In  our opinion, where the facts justify a party  in  filing  an  application either under Article 226 or 227 of the  Constitution,  and  the  party chooses  to  file  his  application under  both  these  Articles,  in fairness and justice to such party and in order not to deprive him of the  valuable  right  of  appeal  the Court ought to treat the application as being made under Article 226, and if in deciding the matter, in the

31

final  order  the  Court  gives ancillary  directions  which  may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of  the  Letters  Patent  where  the substantial part of the order sought to  be  appealed  against  is  under Article 226”.

       (emphasis supplied)

31. (We  may  observe  at  this  stage  that

Chinnappa Reddy, J. expressed his inability to

opine on the issue being ‘unfamiliar’ with the

history, tradition and the law of the city of

Bombay).

32. In our judgment, the learned counsel

for the appellant is right in submitting that

nomenclature of the proceeding or reference to

a particular Article of the Constitution is not

final  or  conclusive.  He  is  also  right  in

submitting  that  an  observation  by  a  Single

Judge as to how he had dealt with the matter is

also not decisive. If it were so, a petition

strictly falling under Article 226 simpliciter

can be disposed of by a Single Judge observing

that he is exercising power of superintendence

32

under Article 227 of the Constitution. Can such

statement by a Single Judge take away from the

party aggrieved a right of appeal against the

judgment  if  otherwise  the  petition  is  under

Article 226 of the Constitution and subject to

an intra court/Letters Patent Appeal? The reply

unquestionably is in the negative [see Pepsi

Foods  Ltd.  &  Anr.  v.  Special  Judicial

Magistrate & Ors., (1998) 5 SCC 749]. 33. In our considered opinion, however, on

the  facts  and  in  the  circumstances  of  the

present case, the petitions instituted by the

Company and decided by a Single Judge of the

High Court could not be said to be  original

proceeding under  Article  226  of  the

Constitution. We are clearly of the view that

the  learned  Single  Judge  had  decided  the

petitions  in  exercise  of  power  of

superintendence  under  Article  227  of  the

Constitution.

34. We have already referred to the facts

of  the  case.  According  to  the  Company,

33

voluntary  retirement  was  accepted  by  the

employees.  They  thereafter  challenged  the

action on the ground that the acceptance was

not voluntary but they were compelled to opt

for the scheme and were paid some amount which

was not in consonance with law and the action

of  not  allowing  them  to  continue  in  the

employment  amounted to  removal from  service.

They, therefore, approached Labour Court for an

appropriate  relief.  The  Labour  Court

entertained complaints and issued notice. The

Company  appeared  and  raised  preliminary

objections. Issues were framed and a prayer was

made by the Company to decide ‘issues of law’

as preliminary issues which prayer was rejected

by  the  Labour  Court.  The  Company  approached

Industrial Court which also did not interfere

with the order of the Labour Court. That order

was again challenged by the Company by filing

petitions in the High Court and the learned

Single  Judge  dismissed  the  petitions.   In

view of the aforesaid facts, we have no doubt

34

that  the  learned  Single  Judge  was

exercising  power  of  superintendence  over  a

Court/Tribunal subordinate to it under Article

227 of the Constitution. Obviously, a remedy of

intra  court  appeal  was  not  available.  We,

therefore,  hold  that  the  Division  Bench  was

right  in  coming  to  the  conclusion  that

intra  court  appeals  filed  by  the  Company

were  not  maintainable.  We  see  no

infirmity  in  that  part  of  the  order.  The

contention  of  the  appellant  Company  is,

therefore, rejected.

MAINTAINABILITY OF WRIT PETITIONS 35. It was urged on behalf of the workmen

that the writ petitions filed by the Company

for  quashing  and  setting  aside  the  orders

passed by the Labour Court and confirmed by the

Industrial  Court were  barred by  constructive

res judicata as also under Order XXIII, Rule 4

of the Code. The argument proceeds thus: The

Company filed a Writ Petition No. 3471 of 2005

35

under Article 227 of the Constitution in the

High Court for quashing and setting aside an

order dated March 14, 2005 passed by the Labour

Court and an order dated August 8, 2005 passed

by the Industrial Court. On December 14, 2005,

the Company withdrew the petition. It, however,

filed fresh petition in respect of the same

cause of action. No permission or leave of the

Court was sought, nor it was granted by the

Court when the writ petition was withdrawn to

file  fresh  petition  by  the  petitioner  in

respect  of  the  same  cause  of  action.  Fresh

petitions were, therefore, not maintainable. 36. The learned counsel for the Company,

however, submitted that the objection raised by

the workmen is not well-founded. Firstly, it

was urged that no such contention was raised by

the  workmen  in  reply  to  the  writ  petitions

filed by the Company, nor it was taken before

the learned Single Judge at the time of hearing

of petitions. Nor such argument was raised in

this Court when earlier Special Leave Petition

36

was filed by the Company in this Court. It was

also not taken when the Company filed intra

court appeals before the Division Bench of the

High  Court  after  disposal  of  Special  Leave

Petition by this Court. Even in Special Leave

Petition filed in this Court by the workmen, no

such point has been raised. A question whether

a petition is barred by res judicata or under

Rule 4 of Order XXIII of the Code is not a

‘pure’ question of law. It is a question of

fact or at any rate, a mixed question of law

and fact. In absence of pleadings and necessary

materials in support of such plea, petitions

cannot be dismissed on the bald assertion by a

party that they were not maintainable.

37. Let us consider legal position on this

issue.

38. In the leading case of Daryao v. State

of U.P., (1962) 1 SCR 574, a Constitution Bench

of this Court was called upon to decide whether

withdrawal of a writ petition would operate as

res judicata. The Court held that an order of

37

withdrawal  would not  constitute  res  judicata

inasmuch as there is no decision on the merits

by the Court. The Court, however, proceeded to

observe that when a petition is withdrawn by

the party without obtaining liberty from the

Court  to  file  fresh  petition  on  the  same

subject  matter,  as  a  general  rule,  the

petitioner  is  precluded  from  filing  a  fresh

petition or an appeal against such an order

because “he cannot be considered to be a party

aggrieved  by  the  order  passed  by  the  Court

permitting withdrawal of the petition”. 39. In Sarguja Transport Service v. State

Transport Appellate Tribunal,  (1987) 1 SCC 5,

the Appellate Tribunal set aside permit granted

in favour of the petitioner by the Regional

Transport  Authority to  run a  stage-carriage.

The  petitioner  filed  a  writ  petition  under

Article 226 of the Constitution in the High

Court of Madhya Pradesh against the order of

the Tribunal but withdrew it. Then he filed a

fresh  petition.  The  High  Court  dismissed  it

38

holding that after the withdrawal of the first

petition,  the  second  petition  was  not

maintainable.  The  aggrieved  appellant

approached this Court. 40. Dismissing the appeal and considering

the ambit and scope of Order XXIII of the Code

and distinguishing it from the doctrine of res

judicata under Section 11 of the Code, this

Court observed:

“The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a  right  will  loose  it.  In  order  to prevent  a  litigant  from  abusing  the process  of  the  Court  by  instituting suits  again  and  again  on  the  same cause  of  action  without  any  good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in Sub-rule (3) of Rule 1 of Order XXIII. The  principle  underlying  the  above rule is founded on public policy, but it is not the same as the rule of res judicata  contained  in  Section  11  of the Code which provides that no court shall try any suit or issue in which the  matter  directly  or  substantially in  issue  has  been  directly  or substantially  in  issue  in  a  former suit  between  the  same  parties,  or between parties under whom they or any

39

of  them  claim,  litigating  under  the same  title, in a Court competent to try such subsequent suit or the suit in  which  such  issue  has  been subsequently  raised,  and  has  been heard  and  finally  decided  by  such Court.  The  rule  of  res  judicata applies to a case where the suit or an issue  has  already  been  heard  and finally  decided  by  a  Court.  In  the case of abandonment or withdrawal of a suit  without  the  permission  of  the Court to file a fresh suit, there is no prior adjudication of a suit or an issue  is  involved,  yet  the  Code provides,  as  stated  earlier,  that  a second suit will not lie in Sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in Sub-rule (3) in order to prevent the abuse of the process of the Court”.

 (emphasis supplied)

41. In  A.K.  Bhattacharya  v.  Union  of

India,  1991 Supp (2) SCC 109, the petitioner

filed  a  writ  petition  in  the  High  Court  of

Gauhati under Article 226 of the Constitution

seeking  Selection  Grade  in  Tripura  Civil

Service and also promotion to the IAS cadre. A

statement was made by the Advocate General that

the case of the petitioner would be considered

40

for Selection Grade in Tripura Civil Service.

The petitioner, in view of the said statement,

did not press the second relief. Subsequently,

however, the petitioner prayed for that relief

by  filing  a  petition  in  this  Court  under

Article 32 of the Constitution.

42. Dismissing  the  petition,  this  Court

commented:

“He  (petitioner)  cannot,  in  this petition  under  Article  32  of  the Constitution, ask for the same relief which he had himself given up in the High Court”. [see  also  State  of  Gujarat  v. Bhaterdevi Ramnivas Sanwalram,  (2002) 7 SCC 500]

43. In Murtujakhan v. Municipal Corpn. Of

Ahmedabad, (1975) 16 Guj LR 806, a petition was

filed  under  Article  226  of  the  Constitution

challenging the constitutional validity of the

Bombay Town Planning Act, 1954. The respondents

appeared,  filed affidavits  and contested  the

petition  on merits.  Ultimately, however,  the

petition was withdrawn by the petitioner since

the point raised in the petition as to validity

41

of the Act was covered by the decisions of this

Court and as such nothing survived. Then again

a fresh petition was filed by the petitioner

challenging the validity of the Act. 44. Dismissing  the  petition  and  applying

the  general  principle  of  res  judicata,  the

Court observed: “The consequence of the withdrawal of the said writ petition in the eye of law  was  that  it  stood  dismissed  on merits albeit on a concession made by or on behalf of the petitioner to the effect  that  the  question  of  the constitutional validity of the Act was no  longer  open  in  view  of  the decisions  of  the  Supreme  Court.  In other  words,  the  effect  of  the dismissal by withdrawal was that the challenge  of  the  petitioner  to  the actions of the respondents under the Act on the ground that the said Act itself was ultra vires stood concluded by an adverse decision of this Court based on his own concession. …

45. The Court proceeded to state;

[T]he  petitioner  having  himself abandoned  without  reservation  the previous writ proceeding initiated in this  very  Court  with  eyes  open  and after due deliberation cannot now be allowed to pick up the thread after a lapse  of  five  years  and  to  start  a fresh  proceeding  to  re-agitate  the very point which he expressly gave up

42

in the previous proceeding. He had set the  machinery  of  law  in  motion  but solemnly brought it to an abrupt halt, indeed  forsaken  it  in  midstream,  in proclaimed obeisance to the decisions of  the  Supreme  Court.  He  cannot  be permitted  to  resume  it  now  after  a number of years and be heard to say that despite his earlier proclamation, he still wishes to persist in raising the  same  point  in  this  litigation. Courts moved upon a prerogative writ are not the forum to flog a dead horse or to resuscitate a ghost already laid to rest”.   (emphasis supplied)

46. In Bakhtawar Singh & Anr. v. Sada Kaur

& Anr., (1996) 11 SCC 167, this Court observed

that if the plaintiff withdraws the suit and

there is no evidence to show that the suit was

bound to fail by reason of some ‘formal’ defect

or there were sufficient grounds for allowing

the  plaintiff  to  institute  a  fresh  suit  in

respect of the same subject matter and for the

same  relief,  after  the  withdrawal  of  the

earlier suit, the action of filing fresh suit

would be barred under Order XXIII of the Code. 47. In  K.S. Bhoopathy & Ors. V. Kokila &

Ors., (2000) 5 SCC 458, this Court stated that

43

the Court has to discharge the duties mandated

under the provisions of the Code in taking into

consideration  all  relevant  aspects  of  the

matter including the desirability of permitting

the party to start a fresh round of litigation

for the same cause of action. 48. We may also refer to a recent decision

of this Court in Sarva Shramik Sangathan (KV),

Mumbai v. State of Maharashtra & Ors., (2008) 1

SCC 494. In that case, an application under

Section 25-O of the Industrial Disputes Act,

1947 was filed by the employer for closure of

undertaking.  The  application  was,  however,

withdrawn  since  attempts  were  made  for

settlement of the matter. The efforts were not

successful  and  hence,  the  management  filed

fresh  application.  It  was  contended  by  the

Union that since earlier application filed by

the  employer  was  withdrawn,  the  second

application was hit by Order XXIII of the Code.

The  Union  relied  upon  Sarguja  Transport

Service.

44

49. Negativing the contention, holding the

application  maintainable  and  distinguishing

Sarguja Transport Service, this Court held that

the action of the Management of withdrawal of

first petition was bona fide. It was not a case

of  Bench-hunting  with  a  view  to  avoid  an

adverse order likely to be passed against it.

Sarguja  Transport Service  had,  therefore,  no

application.  It  was  also  observed  that

provisions of the Code of Civil Procedure do

not strictly apply to industrial adjudication.

The  second  application  was,  therefore,  held

maintainable. 50. From the above case law, it is clear

that it is open to the petitioner to withdraw a

petition filed by him. Normally, a Court of Law

would  not  prevent  him  from  withdrawing  his

petition. But if such withdrawal is without the

leave  of  the  Court,  it  would  mean  that  the

petitioner is not interested in prosecuting or

continuing the proceedings and he abandons his

claim. In such cases, obviously, public policy

45

requires that he should not start fresh round

of litigation and the Court will not allow him

to re-agitate the claim which he himself had

given up earlier. 51. In  Sarguja  Transport  Service,

extending the principles laid down in  Daryao,

Venkataramiah, J. (as His Lordship then was)

concluded; “[W]e  are  of  the  view  that  the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition  also, not on the ground of res  judicata  but  on  the  ground  of public policy as explained above. It would  also  discourage  the  litigant from  indulging  in  bench-hunting tactics.  In  any  event  there  is  no justifiable reason in such a case to permit  a  petitioner  to  invoke  the extraordinary jurisdiction of the High Court  under  Article  226  of  the Constitution  once  again.  While  the withdrawal of a writ petition filed in a  High  Court  without  permission  to file a fresh writ petition may not bar other  remedies  like  a  suit  or  a petition  under  Article  32  of  the Constitution  of  India  since  such withdrawal  does  not  amount  to  res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the

46

petitioner in respect of the cause of action relied on in the writ petition when  he  withdraws  it  without  such permission”.

 (emphasis supplied)

52. On the facts of the case, however, we

are unable to uphold the argument on behalf of

the workmen that the Company did not want to

prosecute the petitions and had given up its

claim against the order passed by the Labour

Court and confirmed by the Industrial Court.

The record reveals that the Company filed one

writ petition against one employee which was

registered as Writ Petition No. 3060 of 2005.

It  also  filed  another  petition  against  the

remaining employees (236) which was registered

as Writ Petition No. 3471 of 2005. Since the

other petition was against several employees,

the  Registry  of  the  High  Court  raised  an

objection that it was under ‘defect’. It was,

therefore, not placed for admission-hearing. In

an  order,  dated  October  3,  2005,  the  Court

noted that the learned counsel for the Company

47

prayed for time “to remove the defects pointed

by the office”. The prayer was granted. It also

appears that according to the Registry, there

were  practical  difficulties  and  logistic

problems since the petition was against more

than 200 employees. The learned counsel for the

Company, therefore, on December 14, 2005, did

not  ‘press’  the  petition  and  petition  was

accordingly  dismissed  ‘as  not  pressed’.  The

said order was passed on December 14, 2005.

Immediately  thereafter,  in  January,  2006,

separate petitions were filed by the Company

against the workmen. It is thus clear that it

was not a case of abandonment or giving up of

claim by the Company. But, in view of office

objection,  practical  difficulty  and  logistic

problem, the petitioner Company did not proceed

with  an  ‘omnibus’  and  composite  petition

against  several  workmen  and  filed  separate

petitions as suggested by the Registry of the

High Court.

48

53. There is an additional reason also for

coming to this conclusion on the basis of which

it can be said that the Company was prosecuting

the matter and there was no intention to leave

the matter. As is clear, Writ petition No. 3060

of 2005 which was filed against one employee

was  very  much  alive  and  was  never

withdrawn/’note pressed’. If really the Company

wanted  to  give  up  the  claim,  it  would  have

withdrawn that petition as well. Thus, from the

circumstances in their entirety, we hold that

the objection raised by the learned counsel for

the workmen has no force and is rejected.

MAINTAINABILITY OF CLAIM PETITIONS

54. The  learned  counsel  for  the  Company

contended that the courts below committed an

error  in  not  deciding  the  issue  as  to

maintainability  of  claim  petitions  as

preliminary issue and in rejecting the prayer

of  the  Company.  It  was  submitted  that  the

workmen  accepted  the  scheme,  received  the

49

payment  thereunder  and  separated  from  the

Company. The relationship of master and servant

came  to  an  end  on  acceptance  of  voluntary

retirement and payment of dues thereunder. It

was thereafter not open to them to invoke the

provisions  of  the  Act  by  instituting  claim

petitions.  The  relationship  of  master  and

servant is sine qua non or condition precedent

for the exercise of power under the Act by the

Labour  Court.  It  is  thus  a  ‘jurisdictional

fact’ or ‘preliminary fact’ which must exist

before  a  Court  assumes  jurisdiction  to

entertain, deal with and decide the claim.

55. A  ‘jurisdictional  fact’  is  one  on

existence of which depends jurisdiction of a

Court,  Tribunal  or  an  Authority.  If  the

jurisdictional fact does not exist, the Court

or Tribunal cannot act. If an inferior Court or

Tribunal wrongly assumes the existence of such

fact, a writ of certiorari lies. The underlying

principle  is  that  by  erroneously  assuming

existence of jurisdictional fact, a subordinate

50

Court  or  an  inferior  Tribunal  cannot  confer

upon  itself  jurisdiction  which  it  otherwise

does not possess.

56. The  counsel  referred  to  a  recent

decision of this Court in Arun Kumar v. Union

of India,  (2007) 1 SCC 732. Speaking for the

Court, one of us (C.K. Thakker, J.) observed: “A  ‘jurisdictional  fact’  is  a  fact which  must  exist  before  a  Court, Tribunal  or  an  Authority  assumes jurisdiction over a particular matter. A  jurisdictional  fact  is  one  on existence  or  non-existence  of  which depends  jurisdiction  of  a  court,  a tribunal  or an authority. It is the fact  upon  which  an  administrative agency’s power to act depends.  If the jurisdictional  fact  does  not  exist, the court, authority or officer cannot act.  If a Court or authority wrongly assumes  the  existence  of  such  fact, the order can be questioned by a writ of  certiorari.  The  underlying principle  is  that  by  erroneously assuming  existence  of  such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not posses”.   

57. It was further observed:

“The existence of jurisdictional fact is  thus  sine  qua  non or  condition precedent for the exercise of power by a court of limited jurisdiction”.

51

58. Drawing  the  distinction  between

‘jurisdictional fact’ and ‘adjudicatory fact’,

the Court stated:

“[I]t  is  clear  that  existence  of ‘jurisdictional fact’ is sine qua non for  the  exercise  of  power.  If  the jurisdictional  fact  exists,  the authority  can  proceed  with  the  case and  take  an  appropriate  decision  in accordance  with  law.  Once  the authority  has  jurisdiction  in  the matter on existence of ‘jurisdictional fact’,  it  can  decide  the  ‘fact  in issue’ or ‘adjudicatory fact’. A wrong decision  on  ‘fact  in  issue’  or  on ‘adjudicatory fact’ would not make the decision  of  the  authority  without jurisdiction  or  vulnerable  provided essential  or  fundamental  fact  as  to existence of jurisdiction is present”.

59. The principle was reiterated in Carona

Ltd. v. Parvathi Swaminathan & Ors., (2007) 1

SCC 559.

60. The learned counsel for the workmen,

on the other hand, supported the view taken by

the Courts below. He submitted that the issues

sought to be raised by the Company are mixed

issues of law and fact. It is the allegation of

52

the  workmen  that  they  had  not  voluntarily

accepted the scheme but they were compelled to

accept it under duress and coercion. Moreover,

it is their case in the claim petitions that

they were not paid full amount even under the

scheme. They, therefore, did not cease to be

workmen of the Company and the relationship of

master  and  servant  between  the  parties

continued. If it is so, an action not allowing

them to work would amount to termination of

service  or  removal  from  employment.  In  that

eventuality, remedy under Section 31 of the Act

is  available  and  accordingly  they  had  filed

claim petitions. The question will have to be

decided by the Labour Court on the evidence

adduced  by  the  parties  and  the  issue  as  to

maintainability cannot be decided in isolation

and as preliminary issue as suggested by the

Company.

61. It was also submitted that this Court

has held that statutory Tribunals must decide

all  issues  raised  by  the  parties.  This  is

53

particularly  true  to  industrial  disputes.

Strong reliance was placed on  D.P. Maheshwari

v.  Delhi  Administration,  (1983)  4  SCC  293.

Dealing  with  a  similar  argument,  this  Court

said: “There was a time when it was thought prudent  and  wise  policy  to  decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. We think it is better that  tribunals,  particularly  those entrusted  with  the  task  of adjudicating  labour  disputes  Where delay  may  lead  to  misery  and jeopardise  industrial  peace,  should decide  all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts  in  the  exercise  of  their jurisdiction under Article 226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may  be decided by them. Neither the jurisdiction of the High Court under Article  226  of  the  Constitution  nor the jurisdiction of this Court under Article  136  may  be  allowed  to  be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter  from  Court  to  Court  for adjudication  of  peripheral  issues, avoiding decision on issues more vital to them. Article 226 and Article 136 are not meant to be used to break the resistance of workmen in this fashion. Tribunals and Courts who are requested to  decide  preliminary  questions  must

54

therefore ask them selves whether such threshold part-adjudication is really necessary and whether it will not lead to  other  woeful  consequences.  After all  tribunals  like  Industrial Tribunals  are  constituted  to  decide expeditiously  special  kinds  of disputes and their jurisdiction to so decide  is  not  to  be  stifled  by  all manner  of  preliminary  objections journeyings up and down.  It is also worth  while  remembering  that  the nature  of  the  jurisdiction  under Article  226  is  supervisory  and  not appellate while that under Article 136 is primarily supervisory but the Court may  exercise all necessary appellate powers to do substantial justice. In the  exercise  of  such  jurisdiction neither the High Court nor this Court is  required  to  be  too  astute  to interfere  with  the  exercise  of jurisdiction  by special tribunals at interlocutory  stages  and  on preliminary issues”.

 (emphasis supplied)

62. Reference was also made to S.K. Verma

v. Mahesh Chandra & Anr., (1983) 4 SCC 214. In

that  case,  this  Court  commented  that  there

appears  to  be  three  preliminary  objections

which  have  become  quite  the  fashion  to  be

raised by all employees. Firstly, there is no

55

industry.  Secondly,  there  is  no  industrial

dispute. Thirdly, the workman is ‘no workman’. 63. The  attention of the Court was also

invited  to  National  Council  for  Cement  &

Building Materials v. State of Haryana, (1996)

3 SCC 306, wherein the Court deprecated the

practice of the management to raise preliminary

issues with a view to delay adjudication of

industrial disputes. 64. In  our  considered  opinion,  in  the

present case, it cannot be said that the Courts

below have committed any error of jurisdiction

in  not  deciding  the  issue  as  to  the

maintainability  of  claim-petitions  as

preliminary  issue.  It  is  well  settled  that

generally,  all  issues  arising  in  a  suit  or

proceeding  should  be  tried  together  and  a

judgment should be pronounced on those issues. 65. Before  more  than  hundred  years,  the

Privy Council in Tarakant v. Puddomoney, (1866)

10 MIA 476, favoured this approach.

56

66. Speaking  for  the  Judicial  Committee,

Lord Turner stated:

“The  Courts  below,  in  appealable cases, by forbearing from deciding on all  the  issues  joined,  not infrequently oblige this Committee to recommend  that  a  cause  be  remanded which  might  otherwise  be  finally decided on appeal. This is certainly a serious evil to the parties litigant, as  it  may  involve  the  expense  of  a second  appeal  as  well  as  that  of another hearing below.  It is much to be  desired,  therefore,  that  in appealable  cases  the  Courts  below should, as far as may be practicable, pronounce  their  opinions  on  all  the important points”. (emphasis supplied)

67. The  above  principle  has  been

consistently followed. This Court dealing with

the provisions of Order XIV Rule 2 (prior to

the  amendment  Act  of  1976),  in  Major  S.S.

Khanna v. Brigadiar F.J. Dillion, (1964) 4 SCR

409, stated;  “Under Order 14 Rule 2, Code of Civil Procedure,  where  issues  both  of  law and of fact arise in the same suit, and the Court is of opinion that the case  or  any  part  thereof  may  be disposed of on the issues of law only, it shall try those issues first, and for  that  purpose  may,  if  it  thinks

57

fit,  postpone  the  settlement  of  the issues of fact until after the issues of  law  have  been  determined.  The jurisdiction  to  try  issues  of  law apart from the issues of fact may be exercised only where in the opinion of the  Court  the  whole  suit  may  be disposed  of  on  the  issues  of  law alone,  but  the  Code  confers  no jurisdiction upon the Court to try a suit on mixed issues of law and fact as  preliminary  issues.  Normally  all the issues in a suit should be tried by the Court; not to do so, especially when the decision on issues even of law depend upon the decision of issues of fact, would result in a lop-sided trial of the suit”.

 (emphasis supplied)

68. The Law Commission also considered the

question and did not favour the tendency of

deciding  some  issues  as  preliminary  issues.

Dealing with Rule 2 of Order XIV (before the

amendment), the Commission stated;

“This rule has led to one difficulty. Where a case can be disposed of on a preliminary  point  (issue)  of  law, often the courts do not inquire into the merits, with the result that when, on  an appeal against the finding on the preliminary issue the decision of the Court on that issue is reversed, the  case  has  to  be  remanded  to  the Court of first instance for trial on the other issues. This causes delay.

58

It  is  considered  that  this  delay should  be  eliminated,  by  providing that a court must give judgment on all issues,  excepting,  of  course,  where the  Court  finds  that  it  has  no jurisdiction  or  where  the  suit  is barred by any law for the time being in force”.         (emphasis supplied)

69. Apart  from  the  fact  that  the

provisions of Code do not  stricto sensu  apply

to  ‘industrial adjudication’,  even under  the

Code, after the Amendment Act, 1976, the normal

rule is to decide all the issues together in a

civil suit. In the case on hand, the contention

of the workmen is that the acceptance of the

scheme  was  not  with  free  consent,  and  even

otherwise they were not given all the benefits

to which they were entitled under the scheme.

Therefore, they continued to remain employees

of the Company. The Labour Court felt that the

controversy raised by the workmen can only be

decided in the light of the evidence before it.

The said decision has been confirmed by the

Industrial  Court  as  well  as  by  the  learned

59

Single Judge. We find no illegality in this

approach  which  deserves  interference  under

Article 136 of the Constitution. We, therefore,

see  no  substance  in  the  contention  of  the

Company.

OPTION FOR RETIREMENT : WHETHER VOLUNTARY? 70. The  learned  counsel  for  the  Company

contended that the workmen had opted for and

accepted voluntary retirement under the scheme

floated by the employer and had received all

the benefits thereunder. Thereafter it was not

open to them to turn round and challenge the

action of the Company. The workmen cannot ‘blow

hot and cold’, ‘fast and loose’ or ‘approbate

and  reprobate’.  The  counsel,  in  this

connection, referred to a number of decisions

on the general principle of estoppel as also

cases  relating  to  acceptance  of  voluntary

retirement by employees.

71. The  learned  counsel  for  the  workmen

urged that the case of the employees was that

60

they had not opted for the scheme and the ‘so

called’ voluntary retirement is no retirement

in  the  eye  of  law.  The  phrase  ‘voluntary

retirement  scheme’  itself  presupposes  that

acceptance  of retirement  should be  voluntary

and  must  have  been  opted  by  employees  with

‘free consent’. The counsel submitted that the

workmen  never  accepted  the  scheme  with  free

consent but it was thrust upon them and under

compulsion,  duress  and  coercion,  they  were

forced to submit to the illegal action of the

Company. That was the reason for the workmen to

approach  Labour  Court  by  filing  claim

petitions.

72. We  would  have  gone  into  the  larger

question  had  it  been  decided  by  the  Courts

below in the light of the decisions of this

Court.  But  as  stated  above,  in  the  present

appeals, we are not called upon to consider the

merits of the matter. The claim petitions are

pending before the labour Court. The present

proceedings are against interlocutory orders.

61

Any  observation,  one  way  or  the  other,  may

cause prejudice to one or the other party. We,

therefore,  refrain  from  entering  into

allegations and counter-allegations by granting

liberty  to  both  the  parties  to  raise  all

contentions available in law. We also direct

the  Labour  Court  to  consider  the  matter  on

merits  and  pass  an  appropriate  order  in

consonance with law.

ORDER TO REFUND AMOUNT  73. The  learned  counsel  for  the  workmen

contended that the order passed by the Division

Bench of High Court directing refund of amount

received  by  the  workmen  to  the  Company  was

illegal, unlawful and without jurisdiction.  It

was submitted that once the Court held that

intra court appeals instituted by the Company

were  not  maintainable,  it  ought  to  have

dismissed them without passing any order as to

refund.

62

74. The  Division  Bench,  in  paragraph  7,

stated;

“Learned counsel has further submitted that  the  respondent-employee  is estopped from challenging the VRS and seeking reinstatement as the employee has  already  pocketed  the  money  and received  the  other  benefits  in accordance with the said Scheme. Since the employees who have approached the Labour  Court  claiming  that  by deceitful means or coercion, they were made  to  accept  the  voluntary retirement  and  received  the  benefit thereunder, it would be equitable to direct that any employee who wants to maintain a petition under Section 31 (3)  of the M.P.I.R. Act against the said  VRS  and  to  seek  reinstatement, should return the benefits received to the employer, subject to the condition and  undertaking  as  offered  by  the learned  counsel  fort  he  appellant, that  in the event, the Labour Court refund  of  the  amount  and  other benefits  to  the  employee  concerned, the  same  would  be  restored  to  the employee with interest at the rate of six  per  cent  per  annum.  It  is  made clear  that  the  Labour  Court  shall decline  to  proceed  with  the application of the employee who does not refund the amount to the employer as  hereinabove  directed.  The  learned counsel  for  the  respondents  has  no objection  to  the  benefits  being refunded  to  the  employer  during  the pendency of the case before the Labour Court  subject  to  the  result  of  the case”.

63

75. The learned counsel in this connection

referred to a leading decision of this Court in

Kiran Singh v. Chaman Paswan, (1955) 1 SCR 117.

Dealing with the provisions of Code of Civil

Procedure,  1908  and  jurisdiction  of  Civil

Courts, this Court stated; “It  is  fundamental  principle  well established that a decree passed by a court  without  jurisdiction  is  a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even  at  the  stage  of  execution  and even  in  collateral  proceedings.   A defect  of jurisdiction ...strikes on the  very  authority  of  the  court  to pass  any  decree,  and  such  a  defect cannot  be  cured  even  by  consent  of parties.”       (emphasis supplied)

 76. Reference  was also made to a recent

decision of this Court in  Harshad Chiman Lal

Modi v. DLF Universal Ltd. & Anr., (2005) 7 SCC

791.  Referring to Kiran Singh as also several

other decisions, it was held by this Court that

if the Court has no jurisdiction to entertain a

particular  claim  or  matter,  neither

acquiescence nor express consent of the parties

64

can  confer  jurisdiction  upon  it.  An  order

passed by a Court having no jurisdiction is

nullity and  non est.   It was submitted that

even  otherwise  the  learned  Single  Judge  was

right in not issuing an order for refund of

amount.

77. The learned counsel for the Company,

submitted  that  the  direction  of  refund  of

amount is proper, fair and in consonance with

principles  of  justice,  equity  and  good

conscience. If the case of the workmen is that

they had never accepted retirement voluntarily;

that it was imposed upon them under duress and

they  were  forced  to  receive  payment  under

Voluntary  Retirement  Scheme  under  pressure,

compulsion or coercion and were constrained to

approach  Labour  Court  asserting  that  they

continued to be workmen of the Company, it was

expected of them even in absence of any order

or direction to refund the amount received by

them.  They could not have resiled from the

position by retaining the benefits which they

65

never wanted but were thrust upon them against

their will. The workmen could not have best of

both the worlds, i.e. to contend that they are

still workmen of the Company but at the same

time,  they  would  not  part  with  the  amount

received by them for leaving the Company for

ever. The High Court, balancing equity between

the  parties,  issued  direction  to  return  the

amount received under the scheme which calls

for no interference by this Court in exercise

of equitable jurisdiction under Article 136 of

the Constitution.

78. It was also submitted that even if it

is held that Letter Patent Appeals were not

maintainable, the Company has approached this

Court and considering that circumstance also,

the direction may be upheld if the Court is of

the  view  that  Claim  Petitions  filed  by  the

workmen  should  be  considered  on  merits  and

should be decided by Labour Court in accordance

with law. The counsel also submitted that when

the claims were lodged by the workmen, they

66

themselves had stated that they were ready and

willing to refund the amount which they had

received  under  the  ‘purported’  Voluntary

Retirement Scheme. It was, therefore, submitted

that the order as to refund of amount needs no

interference.

79. Since we have held that the decision

of  the  Labour  Court,  confirmed  by  the

Industrial Court as well as by the High Court

in not deciding issues Nos. 4(a), 4(b) and 4(c)

as  preliminary  issues  cannot  be  said  to  be

illegal or contrary to law and those issues

will be decided by the Labour Court along with

other issues on merits, the Labour Court will

consider  whether  the  Company  was  right  in

contending that the workmen accepted retirement

voluntarily  and  there  was  cessation  of

relationship of master and servant between them

and the Claim Petitions were not maintainable.

In the circumstances, it would not be proper

for this Court to express any opinion at this

stage on merits. A short question which remains

67

to be considered is whether on the facts and in

the circumstances of the case, the direction of

the High Court can be said to be unjust, unfair

or unreasonable?

80. Now,  it  is  well  settled  that

jurisdiction of High Courts under Articles 226

and 227 is discretionary and equitable.  Before

more than half a century, the High Court of

Allahabad  in  the  leading  case  of  Jodhey  v.

State, AIR 1952 All 788 observed; “There  are  no  limits,  fetters  or restrictions placed on this power of superintendence in this clause and the purpose of this Article seems to be to make the High Court the custodian of all  justice  within  the  territorial limits of its jurisdiction and to arm it with a weapon that could be wielded for the purpose of seeing that justice is meted out fairly and properly by the bodies mentioned therein.”

 (emphasis supplied)

 81. The  power  of  superintendence  under

Article 227 of the Constitution conferred on

every High Court over all courts and tribunals

throughout the territories in relation to which

68

it  exercises  jurisdiction  is  very  wide  and

discretionary in nature.  It can be exercised

ex debito justitiae, i.e. to meet the ends of

justice.  It is equitable in nature.  While

exercising  supervisory  jurisdiction,  a  High

Court not only acts as a court of law but also

as a court of equity. It is, therefore, power

and also the duty of the Court to ensure that

power of superintendence must ‘advance the ends

of justice and uproot injustice’. 82. In Roshan Deen vs. Preeti Lal,  (2002)

1 SCC 100, dealing with an order passed by the

High  Court  setting  aside  an  order  of

Commissioner for Workmen’s Compensation, this

Court stated; “Time  and  again  this  Court  has reminded that the power conferred on the High Court under Article 226 and 227 of the Constitution is to advance justice and not to thwart it. The very purpose of such constitutional powers being conferred on the High Courts is that  no  man  should  be  subjected  to injustice  by  violating  the  law.  The look  out  of  the  High  Court  is, therefore, not merely to pick out any error of law through an academic angle

69

but  to  see  whether  injustice  has resulted on account of any erroneous interpretation  of  law.  If  justice became the byproduct of an erroneous view  of  law  the  High  Court  is  not expected to erase such justice in the name of correcting the error of law”.

 (emphasis supplied)

83. In  Gadde  Venkateswara  Rao  v. Government of Andhra Pradesh & Ors., (1966) 2

SCR 172, a Primary Health Centre was formerly

inaugurated at village  ‘A’  subject to certain

conditions.  Since those conditions were not

satisfied, it was resolved by Panchayat Samithi

to shift it to village ‘B’.  The Government set

aside the said resolution without giving notice

to  the  Samithi.  Subsequently,  however,  the

Government  reviewed  the  said  order  without

giving  opportunity  of  being  heard  to  the

affected persons.  The action was challenged in

the High Court. The High Court held that the

order passed by the Government on review was

bad. It, however, did not interfere with the

order  on  merits.   In  this  Court  it  was

70

contended that an order passed on review by the

Government was illegal since no opportunity of

hearing was afforded and the High Court was

wrong  in  not  setting  aside  the  said  order.

This Court, however, did not interfere with the

order passed by the High Court observing that

“if the High Court had quashed the order passed

by the Government, it would have restored an

illegal order and would have given the Health

Centre  to  a  village  contrary  to  the  valid

resolutions passed by the Panchayat Samithi”.

In the opinion of this Court, therefore, the

High Court was right in refusing to exercise

discretionary power in the circumstances of the

case. 84. In Commissioner of Income Tax, Madras

v.  Vinod  Kumar  Didwania,  AIR  1987  SC  1260,

certain prohibitory orders under the Income Tax

Act, 1961 were passed against the assessee in

connection with removal of goods.  By filing a

petition under Article 226 of the Constitution,

the assessee challenged the legality of those

71

orders.   He  obtained  ex  parte interim

injunction,  removed the  goods and  thereafter

withdrew the petition. The Revenue challenged

the said action by approaching this Court.  The

Court held that the assessee had abused the

process of law and he could not be allowed to

retain undue benefit received by him.   85. In  Chief  Settlement  Commissioners  v.

Ram Singh,  (1987) 1 SCC 612, this Court held

that an order of allotment of land in excess of

lawful entitlement does not allow such allottee

to insist that excess land should not be taken

away from him. 86. In Mohammad Swalleh v. Third Additonal

District Judge, Meerut,  (1988) 1 SCC 40, an

erroneous order was passed by the Prescribed

Authority  refusing  to  grant  eviction  of  the

tenant  under  the  relevant  law.   It  was  set

aside by the District Court in appeal though no

such appeal was maintainable.  When the matter

reached  this  Court,  the  Court  refused  to

interfere with the order since justice had been

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done “though technically the appellant had a

point that the order of the District Judge was

illegal and improper”. 87. The  learned  counsel  for  the  Company

placed  heavy  reliance  on  Shangrilla  Food

Products Ltd. v. Life Insurance Corporation of

India,  (1996) 5 SCC 54.  In a suit by  A, an

order was passed by the Estate Officer against

B  holding  that  it  was  in  unauthorized

occupation and was liable to be evicted under

the Public Premises (Eviction of Unauthorised

Occupants) Act, 1971.  He also ordered B to pay

damages of Rs. 12 lakhs. An appeal was filed by

B against the order and the Appellate Authority

confirmed  the  order  of  eviction.   The  High

Court, however, felt that an opportunity ought

to have been afforded to B to prove that it was

a  lawful  sub-tenant.  The  matter,  therefore,

required remand. At that stage,  A prayed that

in that case, the matter be remanded as a whole

to be decided afresh considering the question

of  payment  of  rent/damages  also.   The  High

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Court  upheld  the  plea,  negativing  the

contention of B that A had never challenged the

order setting aside the direction as to payment

of damages.  B approached this Court.

88. Dismissing the appeal, confirming the

order  of  the  High  Court  and  adverting  to

substantial justice, this Court stated;

“It  is  well-settled  that  the  High Court in exercise of its jurisdiction under Article 226 of the Constitution can  take  cognizance  of  the  entire facts  and  circumstances  of  the  case and  pass  appropriate  orders  to  give the  parties  complete  and  substantial justice. This jurisdiction of the High Court,  being  extraordinary,  is normally  exercisable  keeping  in  mind the principles of equity. One of the ends  of  the  equity  is  to  promote honesty and fair play. If there be any unfair  advantage  gained  by  a  party priorly,  before  invoking  the jurisdiction  of  the  High  Court,  the court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting  relief.  What  precisely  has been done by the learned Single Judge, is  clear  from  the  above  emphasised words which be re-read with advantage. The question of claim to damages and their  ascertainment  would  only  arise in  the  event  of  the  Life  Insurance Corporation, respondent, succeeding to prove that the appellant Company was an  unlawful  sub-tenant  and  therefore

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in  unauthorised  occupation  of  public premises. If the finding were to go in favour of the appellant Company and it is  proved to be a lawful sub-tenant and  hence  not  an  unauthorised occupant, the direction to adjudge the claim  for  damages  would  be  rendered sterile and otiose. It is only in the event of the appellant Company being held to be an unlawful sub-tenant and hence  an  unauthorised  occupant  that the  claim  for  damages  would  be determinable.  We  see  therefore  no fault in the High Court adopting such course  in  order  to  balance  the equities  between  the  contestants especially when it otherwise had power of  superintendence  under  Article  227 of  the  Constitution  in  addition.  We cannot be oblivious to the fact that when the occupation of the premises in question was a factor in continuation the liability to pay for the use and occupation thereof, be it in the form of  rent  or  damages,  was  also  a continuing  factor.  The  cause  of justice, as viewed by the High Court, did  clearly  warrant  that  both  these questions be viewed inter-dependently. For those who seek equity must bow to equity”.   (emphasis supplied)

89. From  the  above  cases,  it  clearly

transpires that powers under Articles 226 and

227  are  discretionary  and  equitable  and  are

required to be exercised in the larger interest

of justice. While granting relief in favour of

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the applicant, the Court must take into account

balancing interests and equities.  It can mould

relief considering the facts of the case. It

can pass an appropriate order which justice may

demand and equities may project.  As observed

by  this Court  in  Shiv  Shankar Dal  Mills v.

State of Haryana, (1980) 1 SCR 1170, Courts of

equity should go much further both to give and

refuse  relief  in  furtherance  of  public

interest.  Granting or withholding of relief

may properly be dependent upon considerations

of justice, equity and good conscience.   90. In our considered opinion, taking into

account  facts  and  circumstances  in  their

entirety, the order passed and direction issued

by the Division Bench of the High Court was in

furtherance of justice. Not only it has not

resulted in miscarriage of justice, in fact it

has  attempted  to  put  status  quo  ante  by

balancing interests and leaving the matter to

be  decided  by  a  Competent  Authority  in

accordance with law.

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91. Even  otherwise,  according  to  the

workmen,  they  were  compelled  to  accept  the

amount  and  they  received  such  amount  under

coercion and duress. In our considered opinion,

they cannot retain the benefit if they want to

prosecute  Claim Petitions  instituted by  them

with the Labour Court. Hence, the order passed

by the Division Bench of the High Court as to

refund  of  amount  cannot  be  termed  unjust,

inequitable or improper. Hence, even if it is

held that a ‘technical’ contention raised by

the workmen has some force, this Court which

again  exercises  discretionary  and  equitable

jurisdiction  under  Article  136  of  the

Constitution,  will  not  interfere  with  a

direction  which  is  in  consonance  with  the

doctrine of equity.  It has been rightly said

that  a  person  “who  seeks  equity  must  do

equity”.  Here the workmen claim benefits as

workmen of the Company, but they do not want to

part  with  the  benefit  they  have  received

towards  retirement  and  severance  of

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relationship of master and servant. It simply

cannot  be  permitted.  In  our  judgment,

therefore, the final direction issued by the

Division  Bench  needs  no  interference,

particularly  when  the  Company  has  also

approached this Court under Article 136 of the

Constitution.

92. For  the  foregoing  reasons,  in  our

opinion, the order passed by the Division Bench

of the High Court deserves to be confirmed and

is  hereby  confirmed.  The  payment  which  is

required  to  be  made  as  per  the  said  order

should be made by the applicants intending to

prosecute their claims before the Labour Court,

Mandsour. In view of the fact, however, that

the said period is by now over, ends of justice

would be served if we extend the time so as to

enable the applicants to refund the amount. We,

therefore, extend the time up to December 31,

2008 to make such payment.  We may, however,

clarify  that  Claim  Petitions  will  not  be

proceeded with till such payment is made.  If

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the  payment  is  not  made  within  the  period

stipulated above, the Claim Petitions of those

applicants will automatically stand dismissed.

The  Labour  Court  will  take  up  the  claim

petitions after December 31, 2008.

93. Before parting with the matter, we may

clarify that we have not expressed any opinion

on the merits of the case one way or the other.

And as and when the matter will come up before

the Labour Court, Mandsour, (if the conditions

referred to above have been complied with and

refund of payment is made), the Labour Court

will consider the Claim Petitions on their own

merits  without  being  influenced  by  any

observations  made  in  this  judgment.  All

contentions  of  all  parties  including  the

contention as to maintainability or otherwise

of Claim Petitions are kept open. Civil Appeals

stand disposed of accordingly. On the facts and

in  the  circumstances  of  the  case,  however,

there  shall  be  no  order  as  to  costs  all

throughout.

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…………………………………………………J. (C.K. THAKKER)

…………………………………………………J. (D.K. JAIN)

NEW DELHI, JULY 08, 2008.    

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