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CASE NO.: Appeal (civil)  5458 of 2007

PETITIONER: Sarva Shramik Sanghatana (K.V) Mumbai

RESPONDENT: State of Maharashtra and others

DATE OF JUDGMENT: 28/11/2007

BENCH: C. K. Thakker & Markandey Katju

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO 5458 OF 2007 [Arising out of Special Leave Petition (Civil) No. 15199/2007]

MARKANDEY KATJU, J.

1.      Leave granted.

2.      This appeal has been filed against the impugned judgment dated  16.8.2007 passed by the High Court of Bombay in Writ Petition No. 1240 of  2007. 3.      Heard learned counsel for the parties and perused the record.

4.      Respondent No. 3, Century Industries Textiles Limited, is a company  registered under the Indian Companies Act, 1956.  It had about 7500  employees in its textile mill at Mumbai which suffered heavy loss due to  high increase in the cost of production and competition both in the domestic  as well as international market.  With the object to reduce its operational  cost, agreements dated 6.7.2004 and 5.9.2005 were entered into by the  company with its recognized union for reducing the workforce through an  offer of Voluntary Retirement Scheme (hereinafter in short ’VRS’).   However, there was hardly any success in this exercise, and only about 800  employees opted for the VRS which left with 6700 employees still on its  roll.  Finally, a highly upgraded VRS was offered to the employees  unilaterally by the respondent-company on 13.11.2006 which offer was valid  till 12.12.2006.  There was an overwhelming response to the said VRS and  more than 6300 employees opted for the new VRS, and were accordingly  relieved from service on payment of VRS benefits and all other legal dues.  Only about 275 employees did not accept the abovementioned VRS and 230  of these were the petitioners before the High Court.

5.      The respondent-company further alleged that its manufacturing  activities in its textile mill came to an end on 13.12.2006 since it was left  with only 275 workers.  All supervisors and departmental heads had left  after taking the VRS.  In these circumstances, the respondent-company was  constrained to file an application seeking permission for closure under  Section 25-O of the Industrial Disputes Act (hereinafter in short ’the Act’)  vide application dated 13.2.2007.

6.      Before the aforesaid application under Section 25-O could be decided,  the respondent-company received a letter dated 5.4.2007 from the Deputy  Commissioner of Labour, Mumbai, a copy of which is Annexure P-1 to this  appeal.  This letter states that as per the directions of the Hon’ble Minister  for Labour, Maharashtra Government, a meeting has been convened for  discussing the matter in dispute at 11.00A.M. on 9.4.2007 in the Chambers

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of the Hon’ble Minister in Vidhan Bhavan.

7.      In response, the respondent-company wrote a letter to the Hon’ble  Minister for Labour dated 11.4.2007 stating that it was willing to discuss the  matter in dispute and would attend the meeting.  However, in the same letter  dated 11.4.2007 the respondent-company also mentioned that under Section  25-O(3) of the Industrial Disputes Act, an application under Section 25-O(1)  has to be decided within 60 days, otherwise it would be deemed to have been  allowed.  Since the application was made on 13.2.2007, the 60 days’  limitation was shortly about to expire and then the application would be  deemed to have been allowed.  However, in order to create a conducive  atmosphere for discussing the problems of the remaining employees who  had not taken VRS, the respondent-company was withdrawing its  application under Section 25-O(1), but reserving its right to move fresh  application under Section 25-O as and when necessary.  Accordingly, the  Commissioner of Labour, Mumbai by his order dated 12.4.2007 allowed the  respondent-company to withdraw its application under Section 25-O (1).   The respondent-company alleged that it could have very easily pretended to  discuss the matter with the workers’ Union and bided its time till 13.4.2007  and then claimed the benefit of deemed grant of permission for closure.  But,  instead of doing so, the respondent-company decided to bona fide explore  the possibility of an overall settlement with the remaining employees.  Since  that could not have been done within the remaining 4 days, the respondent- company withdrew its application under Section 25-O(1) so that an attempt  for settlement could be made.  Thus, the respondent-company alleged that its  conduct was bona fide in seeking withdrawal of its closure application.

8.      It appears, however, that the effort for an amicable settlement failed.   Hence the respondent-company filed fresh application under Section 25- O(1) on 11.5.2007 before the Commissioner of Labour, Mumbai.

9.      The appellant, which represents the workmen concerned, opposed the  very entertainment of the second closure application under Section 25-O on  the ground that the first application was withdrawn but without liberty from  the concerned authority to file a fresh application.   The appellant filed a writ  petition under Article 226 of the Constitution before the Bombay High Court  praying that the Deputy Commissioner of Labour should be directed not to  take any further proceedings in relation to the closure application dated  11.5.2007 under Section 25-O.  Since that writ petition was dismissed, hence  this appeal by way of Special Leave Petition.  

10.     Learned counsel for the appellant has strongly relied on the decision  of this Court in Sarguja Transport Service vs. State Transport Appellate  Tribunal, Gwalior and others AIR 1987 SC 88.  He has submitted that in  that decision this Court has laid down that if a writ petition filed in a High  Court is withdrawn without permission to file a fresh writ petition, a second  writ petition for the same relief is barred.  Learned counsel for the appellant  submitted that in the order of the Labour Commissioner dated 12.4.2007, a  copy of which is Annexure P-4 to this appeal, it is only mentioned that the  applicant company is allowed to withdraw its application under Section 25- O(1) seeking permission for closure of its textile mill, but there is no  mention in the said order that the Company is given liberty or permission to  file a fresh application under Section 25-O(1).  Accordingly, he submitted  that the decision of Sarguja Transport case (supra) squarely applies to the  present case.  He submitted that although the decision in Sarguja Transport  case (supra) related to a writ petition, the ratio of that decision was based on  public policy, and hence it was also application to proceedings under Section  25-O of the Industrial Disputes Act.  

11.     We have carefully examined the decision of the Sarguja Transport  Service case (supra).  In the said decision it is mentioned in paragraph 8 as  follows:

"It is common knowledge that very often after a writ  petition is heard for some time when the petitioner or his

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counsel finds that the Court is not likely to pass an order  admitting the petition, request is made by the petitioner  or by his counsel, to permit the petitioner to withdraw the  writ petition without seeking permission to institute a  fresh writ petition.  A Court which is unwilling to admit  the petition would not ordinarily grant liberty to file a  fresh petition while it may just agree to permit the  withdrawal of the petition."

12.     In paragraph 9 of the said decision, it is also mentioned as follows:

"But we are of the view that the principle underlying R.1  of O. XXIII of the Code should be extended in the  interest 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.                

13.     We are of the opinion that the decision in Sarguja Transport case  (supra) has to be understood in the light of the observations in paragraphs 8  & 9 therein, which have been quoted above.  The said decision was given on  the basis of public policy that, if while hearing the first writ petition the  Bench is inclined to dismiss it, and the learned counsel withdraws the  petition so that he could file a second writ petition before what he regards as  a more suitable or convenient bench, then if he withdraws it he should not be  allowed to file a second writ petition unless liberty is given to do so.   In  other words, bench-hunting should not be permitted.

14.     It often happens that during the hearing of a petition the Court makes  oral observations indicating that it is inclined to dismiss the petition.  At this  stage the counsel may seek withdrawal of his petition without getting a  verdict on the merits, with the intention of filing a fresh petition before a  more convenient bench.  It was this malpractice which was sought to be  discouraged by the decision in Sarguja Transport case (supra).

15.     On the subject of precedents Lord Halsbury, L.C., said in Quinn v.  Leathem, 1901 AC 495:

"Now before discussing the case of  Allen v. Flood  (1898) AC 1 and what was decided therein, there are two   observations of a general character which I wish to make,  and one is to repeat what I have very often said before,  that every judgment must be read as applicable to the  particular facts proved, or assumed to be proved, since  the generality of the expressions which may be found  there are not intended to be expositions of the whole law,  but are governed and qualified by the particular  facts of  the case in which such expressions are to be found. The  other  is that a case is only an authority for  what it  actually decides.  I entirely deny that it can be quoted for  a proposition that may seem to follow logically from it.   Such a mode of reasoning assumes that the law is  necessarily a logical Code, whereas every lawyer must  acknowledge that the law is not always logical at all."

We entirely agree with the above observations.

16.     In Ambica Quarry Works vs. State of Gujarat  &  others  (1987) 1  SCC 213  (vide paragraph 18) this Court observed:-

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"The ratio of any decision must be understood in the  background of the facts of that case.  It has been said a  long time ago that a case is only an authority for what it  actually decides, and not what logically follows from it." 17.     In Bhavnagar University vs. Palitana Sugar Mills Pvt. Ltd (2003)  2 SCC 111 (vide paragraph 59), this Court observed:-

"It is well settled that a little difference in facts or  additional facts may make a lot of difference in the  precedential value of a decision."

18.     As held in Bharat Petroleum Corporation Ltd. & another vs.  N.R.Vairamani & another (AIR 2004 SC 4778), a decision cannot be  relied on without disclosing the factual situation.  In the same Judgment this  Court also observed:-

"Courts should not place reliance on decisions without  discussing as to how the factual situation fits in with the  fact situation of the decision on which reliance is placed.   Observations of Courts are neither to be read as Euclid‘s  theorems nor as provisions of the statute and that too  taken out of the context.  These observations must be  read in the context in which they appear to have been  stated.  Judgments of Courts are not to be construed as  statutes. To interpret words, phrases and provisions of a  statute, it may become necessary for judges to embark  into lengthy discussions but the discussion is meant to  explain and not to define. Judges interpret statutes, they  do not interpret judgments.  They interpret words of  statutes; their words are not to be interpreted as statutes.

In London Graving Dock Co. Ltd.  vs. Horton (1951 AC  737 at page 761), Lord Mac Dermot observed:

"The matter cannot, of course, be settled merely  by treating the ipsissima vertra of Willes, J. as  though they were part of an Act of Parliament and  applying the rules of interpretation appropriate  thereto.  This is not to detract from the great  weight to be given to the language actually used by  that most distinguished judge."

In Home Office vs. Dorset Yacht Co. (1970 (2) All ER  294) Lord Reid said, "Lord Atkin‘s speech \005.  is not to  be treated as if it was a statute definition; it will require  qualification in new circumstances." Megarry, J. in  (1971)1 WLR 1062 observed:

"One must not, of course, construe even a reserved  judgment of Russell L. J. as if it were an Act of  Parliament."  

And, in Herrington v. British Railways Board (1972  (2) WLR 537) Lord Morris said:

"There is always peril in treating the words of a  speech or judgment as though they are words in a  legislative enactment, and it is to be remembered  that judicial utterances are made in the setting of  the facts of a particular case."

Circumstantial flexibility, one additional or

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different fact may make a world of difference between  conclusions in two cases.  Disposal of cases by blindly  placing reliance on a decision is not proper.  The  following words of Lord Denning in the matter of  applying precedents have become locus classicus:  

"Each case depends on its own facts and a close  similarity between one case and another is not  enough because even a single significant detail  may alter the entire aspect, in deciding such cases,  one should avoid the temptation to decide cases (as  said by Cardozo, J. ) by matching the colour of one  case against the colour of another. To decide  therefore, on which side of the line a case falls, the  broad resemblance to another case is not at all  decisive."                                             ***         ***         ***   

"Precedent should be followed only so far as it  marks the path of justice, but you must cut the  dead wood and trim off the side branches else you  will find yourself lost in thickets and branches.   My plea is to keep the path of justice clear of  obstructions which could impede it."   

19.     We have referred to the aforesaid decisions and the principles laid  down therein, because often decisions are cited for a proposition without  reading the entire decision and the reasoning contained therein.   In our  opinion, the decision of this Court in Sarguja Transport case (supra)  cannot be treated as a Euclid’s formula.   

20.     In the present case, we are satisfied that the application for withdrawal  of the first petition under Section 25-O(1) was made bona fide because the  respondent-company had received a letter from the Deputy Labour  Commissioner on 5.4.2007 calling for a meeting of the parties so that an  effort could be made for an amicable settlement.  In fact, the respondent- company could have waited for the expiry of 60 days from the date of filing  of its application under Section 25-O(1), on the expiry of which the  application would have deemed to have been allowed under Section 25- O(3).   The fact that it did not do so, and instead applied for withdrawal of its  application under Section 25-O(1), shows its bona fide.  The respondent- company was trying for an amicable settlement, and this was clearly bona  fide, and it was not a case of bench hunting when it found that an adverse  order was likely to be passed against it.  Hence, Sarguja Transport case  (supra) is clearly distinguishable, and will only apply where the first petition  was withdrawn in order to do bench hunting or for some other mala fide  purpose.   

21.     We agree with the learned counsel for the appellant that although the  Code of Civil Procedure does not strictly apply to proceedings under Section  25-O(1) of the Industrial Disputes Act, or other judicial or quasi-judicial  proceedings under in any other Act, some of the general principles in the  CPC may be applicable.  For instance, even if Section 11 of the CPC  does  not in terms strictly apply because both the proceedings may not be suits, the  general principle of res judicata may apply vide Pondicherry Khadi &  Village Industries Board vs. P. Kulothangan and another 2004 (1) SCC  68.   However, this does not mean that all provisions in the CPC will strictly  apply to proceedings which are not suits.

22.     Learned counsel for the appellant has relied on an observation in the  decision of this Court in U.P. State Brassware Corporation Ltd. vs. Uday  Narain Pandey 2006(1) SCC 479, in paragraph 38 of which it is stated:

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"Order 7 Rule 7 of the Code of Civil Procedure confers  powers upon the court to mould relief in a given  situation.  The provisions of the Code of Civil Procedure  are applicable to the proceedings under the Industrial  Disputes Act.    

23.     It may be noted that the observation in the aforesaid decision that the  provisions of the CPC are applicable to proceedings under the Industrial  Disputes Act was made in the context of Order 7 Rule 7 of the Code of Civil  Procedure which confers powers upon the court to mould relief in a given  situation.  Hence, the aforesaid observation must be read in its proper  context, and it cannot be interpreted to mean that all the provisions of the  CPC will strictly apply to proceedings under the Industrial Disputes Act.

24.     No doubt, Order XXIII Rule Rule 1(4) CPC states that where the  plaintiff withdraws a suit without permission of the court, he is precluded  from instituting any fresh suit in respect of the same subject matter.   However, in our opinion, this provision will apply only to suits.  An  application under Section 25-O(1) is not a suit, and hence, the said provision  will not apply to such an application.

25.     Learned counsel for the appellant has relied upon Section 25-O (5) of  the Act which states :

"An order of the State Government granting or refusing  to grant permission shall, subject to the provisions of  sub-section (6), be final and binding on all the parties and  shall remain in force for one year from the date of such  order."   

26.     Leaned counsel submitted that the order of the Labour Commissioner  dated 12.4.2007 allowing the respondent-company to withdraw its closure  application dated 1.2.2007 should be deemed to be an order refusing to grant  permission, and hence a fresh application under Section 25-O(1) could not  be filed before the expiry of one year from the date of the said order.  We do  not agree.  In our opinion, Section 25-O(5) only applies when an order is  passed on merits either granting or refusing to grant permission for closure.    Since in the present case no order on merits was passed, but only an order  permitting  withdrawal  of  the  closure   application  was  passed, Section  25-O(5) has no application.   

27.     For the reasons given above this appeal fails and is hereby dismissed.  There shall be no order as to costs.

28.     Since it has been alleged by the respondent-company that it is  suffering a liability of Rs. 2.84 lakhs per day although the Mill is lying  closed and the concerned workers are getting wages for doing nothing for a  long time, we direct that the petitioner’s application dated 11.5.2007 be  decided very expeditiously by the concerned authority in accordance with  law, preferably within a period of two months of production of copy of this  order to it.