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PETITIONER: WORKMEN OF COCHIN PORT TRUST

       Vs.

RESPONDENT: BOARD OF TRUSTEES OF THE COCHIN PORT TRUST & ANR.

DATE OF JUDGMENT05/05/1978

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. SINGH, JASWANT PATHAK, R.S.

CITATION:  1978 AIR 1283            1978 SCR  (3) 971  1978 SCC  (3) 119  CITATOR INFO :  R          1981 SC 960  (10,18,19)  F          1986 SC1780  (6)  R          1989 SC1764  (23)  RF         1991 SC1309  (3)

ACT: Res judicata, applicability of-Special Leave Petition  under Art.  136  of the Constitution challenging the Award of  the Labour Court was dismissed without giving any reason-Whether the dismissal of the special leave petition bars the  filing of a fresh Writ Petition, on almost all grounds, in the High Court  under Art. 226-Civil Procedure Code (Act 5, 1908,  S. 11)-Application of principle of res judicata, explained.

HEADNOTE: Out  of  17 categories of Junior Executives in  the  Traffic Department  of the respondent Port Trust, except  categories XVI-Labour   Supervisors  Grade-11  and   categories   XVII- Markers/Sorters/Checkers  rest  were on  non-roster  system. When  the workmen belonging to the non-roster were asked  to work  on  a Sunday they were given a day off  on  any  other working  day and were also paid half an extra  day’s  wages. On  the other hand workmen belonging to categories  XVI  and XVII  had  been put on roster system, under  which  whenever they  were made to work on a Sunday on rotation,  they  were given another day off in a week but they were not paid extra wages  for  half  a  day as were  given  to  the  non-roster workmen.  An Industrial dispute was therefore raised in  the form  viz., "Whether the demand for changing the Roster  off system  to  giving Sundays’ off as the weekly  day  rest  in respect  of Grade-11 Supervisors, and Markers,  Sorters  and Checkers is justified ?" The Industrial Tribunal decided the reference   in  favour  of  the  workmen.    The   employer, thereafter,  filed a special leave petition No. 451 of  1970 in  this Court to challenge the award of the  Tribunal,  but the  same  was dismissed on 18-3-70, after  perusal  of  the papers and hearing the counsel.  As no reason for  dismissal was  given in the order, the respondent employers,  filed  a writ petition in the High Court on 28-3-70.  The High  Court allowed  the  writ petition, and quashed the  Award  of  the Tribunal.   The High Court was of the view that : (1)  there

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was  no  unfair discrimination adopted  by  the  Management. While   the   non-roster  staff  were   given   half-a-day’s additional wages as also compensating holiday for working on their  weekly holiday, the roster staff were paid one  day’s additional wages as also compensating holiday for working on their  weekly holiday, the only difference being that  while Sunday is always the weekly holiday for the non-roster staff the  weekly  holiday for the roster staff  changes  once  in every three months according to the roster;  (2)   as    the question  of  wages was not referred to  the  Tribunal,  its Award     was  clearly  in excess of jurisdiction;  and  (3) dismissal of the special leave     petition  by the  Supreme Court  did not operate as res judicata in the  entertainment of the writ petition. Dismissing the appeal by certificate, the Court HELD  :  (1) The Judgment of the High Court is  correct  and sustainable in law.[1976 H] (2)  The  scope of the proceeding under Art. 136  is  wider, than  that of a writ petition., The dismissal of  a  special leave  petition under Art. 136 does not necessarily bar  the entertainment of a writ petition under Art. 226.  The effect of  non-speaking  order of dismissal without  anything  more indicating  the grounds or reasons of its dismissal must  by necessary  implication be taken to have decided that it  was not  a fit case where special leave should be  granted.   It may  be due to several reasons.  It may be one or more.   It may  also  be that the merits of the award were  taken  into consideration  and this Court felt that it did  not  require any  interference.   But since the order is not  a  speaking order it is difficult to accept the argument that it must be deemed  to  have  necessarily  decided  implicitly  all  the questions in relation to the merits of the award.   Whatever can  be  held to have been decided expressly  implicitly  or even  constructively  while  dismissing  the  special  leave petition Cannot be reopened. [977 E-G] 972 State of U.P. v. Nawab Hussain, [1977] 3 S.C.R. 428 applied; Management  of Western India Match Co. Ltd., Madras  v.  The Industrial Tribunal, Madras & Anr., AIR 1958 Mad. 398;  S.I. Emmatty,  Proprietor  Jai Hind Motor  Service  Ernakulam  v. Venkitaswami  Haridas Naiduar & Ors., AIR 1959 Kerala,  291; Haridas  Malkar  & Ors. v. Jay Engineering Works,  [1975]  2 LL.J.26;  explained  and  differed from; Bansi  &  Anr.  vs. Additional  Director,  Consolidation of Holdings,  Rohtak  & Ors., AIR 1967 Pb. 28 approved. (3)  But,  dismissal of a writ petition in limine by a  non- speaking  order, even with one word order "dismissed"  could certainly create a bar in the entertainment of another  writ petition filed by the same party as the same cause of action as  it must necessarily be taken to have  decided  impliedly that  this  is  not  a fit one  for  exercise  of  the  writ jurisdiction  of  the High Court.  If the writ  petition  is dismissed  after  contest by a speaking order  obviously  it will operate as res judicata in any other proceedings,  such as of suit, Art. 32 or Art. 136 directed from the same order or  decision.   If  the  writ petition  is  dismissed  by  a speaking  order  either at the threshold or  after  contest, say, only on the ground of laches or the availability of  an alternative  remedy, then another remedy open in law  either by  way of suit or other proceedings obviously will  not  be barred  on  the principle of res judicata.   A  second  writ petition  on  the same cause of action either filed  in  the same  High  Court  or in another will  not  be  maintainable because the dismissal of one petition will operate as a  bar in the entertainment of another writ petition. 1978 A-C, 979

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B] Daryao & Ors., v. The State of U.P. & Ors. [1962] 1 SCR 574; P. D. Sharma V.     State  Bank of India, [1968] 3  SCR  91, referred to. (4)  The  doctrine of res judicata codified in s. 11 of  the Code  of Civil Procedure is not exhaustive.   Principles  of not  only  of direct res judicata, but of  constructive  res judicata engrafted in Explanation IV to s. 11 are applied in many  other  situations,  besides civil suits.   If  by  any judgment or order any matter in issue has been directly  and explicitly decided the decision operates as res judicata and bars  the  trial  of  an identical  issue  in  a  subsequent proceeding  between the same parties.  The principle of  res judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it, that  is it  must  be  deemed to have  been  necessarily  decided  by implication; then also the principle of res judicata on that issue  is directly applicable.  When any matter which  might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a  matter in  the eye of law, to avoid multiplicity of litigation  and to  bring  about  finality  in it is  deemed  to  have  been constructively  in    issue  and,  therefore,  is  taken  as decided. [977 A-D] (5)  The   technical  rule  of  res  judicata,  although   a wholesome  rule based on public policy cannot  be  stretched too  far to bar the trial of identical issues in a  separate proceeding merely on an uncertain assumption that the issues must  have  been  decided.  It is not  safe  to  extend  the principle of res judicata to such, an extent so as to  found it  in a mere guess work. in the instant case, the Award  of the  Tribunal no doubt was challenged in the  special  leave petition  filed  in this Court on almost all  grounds  which were    in the subsequent proceedings agitated in  the  High Court,  and there is no question of applying the  principles of constructive res judicata. [977 D, G-H] (6)  The relief granted by the Tribunal was beyond the scope of the reference : [981 F] (a)  The  Tribunal did not find that the roster  system  was not  necessary for the successful working of the port  work. No discrimination could be found in the roster off system as such; [981 A-B] (b)  The error of law apparent on the face of the Award  was that  if  the  Roster  off  system  was  necessary  for  the supervisory  staff  and  the age  labour,  then  the  Roster category of workmen was a class by ’itself and 97 3 equating  such workmen with other categories of the  workmen who  were  very  seldom  required to  work  on  Sundays  was obviously   a  wrong  application  of  the   principles   of discrimination.  In substance and in effect the Award  went beyond the scope of reference although in form in which  the final order was made it did not do so; [981 B-C] (c)  The  Tribunal exceeded its jurisdiction in saying  that categories  XVI and VII of the workmen could always be  made to work on Sundays but they should be given half day’s wages besides  a  day  off for working on  Sundays.   This  is  an entirely  different  kind  of  relief  which  the   Tribunal purported  to  grant,  and it was not within  the  terms  of reference; and [981 C-D] (d)  On the findings of the Tribunal the point of  reference ought to have been answered by saying merely that the demand for  changing  the Roster-off system in respect of  the  two categories  of the workmen was justified or  not  justified; [982 D]

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JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 462 of 1971. From the Judgment and Order dated the 4th September, 1970 of the Kerala High Court in Original Petition No. 1902 of 1970. T.   S. Krishnamoorthy, N. Sudhakaran and Krishna Pillai for the Appellant. G.   B.  Pai, O. C. Mathur, K. J. John and P. K. Kurian  for Respondent No. 1. K.   Ram Kumar and P. K. Pillai for Intervener (Cochin  Port Porterage staff Assn.). Ex-parte for respondent No. 2. The Judgment of the Court was delivered by UNTWALIA,  J. This appeal by certificate from  the  judgment and order of the Kerala High Court has been preferred by the workmen  of  the Cochin Port Trust.  The employers  are  the Board  of Trustees of the Cochin Port Trust, respondent  no. 1  (hereinafter  to be referred to as the  respondent).   An industrial dispute between the appellants and the respondent was referred by the Central Government to Central Government Industrial  Tribunal No. 2, respondent no. 2.  The  Tribunal gave  an award in favour of the workmen but it has been  set aside by the High Court on the application of the respondent filed under Article 226 of the Constitution of India. According  to  the Union which  represented  the  appellant- workmen,  the  Traffic  Department  of  the  Port  Trust  is comprised  of and assisted by several categories  of  junior executives for the day to day performance of the shift  work of the Cochin Port.  Out of the seventeen categories of such junior executives, the first fifteen enumerated in the award from the statement of claim of the Union get Sunday off as a weekly holiday.  When the workmen out of the said categories are asked and made to work on a Sunday, they are given a day off  on any other working day and are also paid  extra  half day’s  wages.   On  the  other  hand  category  xvi--"Labour Supervisors     Grade     II"     and     category     xvii- "Markers/Sorters/Checkers" have been put on roster 97 4 off system. that is to say, these two categories of  workmen are ’made to work on Sundays by rotation and get another day off  in the week but they do not get extra wages for half  a day  as are given to the other fifteen categories.   On  the raising  of  an industrial dispute, it Was referred  to  the Tribunal in the following terms :-               "Whether  the demand for changing the  "roster               off" system to giving Sunday off as the weekly               day of rest in respect of Gr.  II  supervisors               and   Markers,   Sorters  and   Checkers,   is               justified" The Tribunal decided the reference in favour of the workmen. On behalf of the employers, the Port Trust, the stand  taken was  that work in the Port has got to be carried on all  the days of the week including Sunday as the cargo has got to be loaded  and  unloaded in and from the ship on every  day  of the, week.  Porterage labour i.e. Porters and others has got to  be engaged on each day of the week to do the said  work. The  roster  off  categories  of  workers  are,   therefore, necessary  to be en-aged by rotation on Sundays also.   They have to work in batches on the roster off system  changeable in  three  months.  In other words, some of the  roster  off category  of  workmen roughly speaking 1/3rd  of  the  total number of 152 get Sunday off in a particular period of three months  and the rest get a weekly day off on some other  day

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of  the  week.  After three months, another batch  is  given Sunday  off, and so on and so forth, by rotation.  Very  few workmen out of the total of about 650 of the non-roster  off categories  are  required  to  work  on  Sundays  as  it  is generally  not necessary to engage them on Sundays  for  the Port  work.  Their nature, of work is such  that  ordinarily and  generally  they get Sunday off.  If, however,  some  of them are asked to work on a Sunday, then they get a day  off on any other day of the week and are paid half a day’s extra wages  also.  In the case of the roster off workmen it  also sometime  happens  that even on their weekly  holiday  in  a particular  period of three months, they are asked to  work. In that event, they are not only given a day off on  another day  of the week but an extra wage for full one day is  paid to them. Oral  and  documentary evidence was adduced by  the  parties before  the  Tribunal.   The stand taken on  behalf  of  the employers  was  that  if  the  roster  off  system  was  not continued  the  work  in  the Cochin  Port  of  loading  and unloading  of  cargo will get dislocated if  not  altogether stopped.   The employers have got the right to  arrange  and carry  on  their  affairs  in  the  best  interests  of  the industry.   By putting certain categories of workmen on  the roster  off  system,  no discrimination is  shown  to  them. While  the  stand taken on behalf of the  workmen  was  that there  would be no, dislocation or stoppage of work even  if the  roster  off  system is  discontinued  because  the  two categories  of workmen working on this system can always  be booked for working on Sundays on terms made available to the similar  kind of workmen in the other categories.  Since  in their  case  it is not so done, they are debarred  of  their half day’s extra wages and thus are unjustly discriminated. 975 The  Tribunal  formulated  the points  of  decision  in  the following terms               (i)   Whether Roster off system in respect  of               Grade        II        Supervisors         and               Markers/Sorters/Checkers       should       be               discontinued ?               (ii)  Whether   Grade   II   Supervisors   and               Markers/Sorters/ Checkers should be given half               day’s  additional wages and another  day  off,               for working on Sunday ?               (iii)   Whether the demand of these  employees               is justified ?               The findings of the Tribunal are :-               (i)   "If   other   Supervisory   staff   i.e.               categories of workers 1 to 15 mentioned in Ex.               1/W  is  not on Roster off system  why  should               Grade  II  supervisors (Category No.  16)  and               Markers/Sorters/Checkers (Category No. 17)  be               only  on Roster off system.  If they only  are               continued  on  Roster  off  system,  it  would               amount to unfair discrimination."               (2)   "It is true that this staff gets one day               off  according to turn for working  on  Sunday               but  they  do not get  half  day’s  additional               wages  for  working on Sunday.  On  the  other               hand,  the other supervisory staff, if  booked               for work on Sunday, get additional half  day’s               wages and some other day off.  To this  extent               there is discrimination in respect of Grade II               Supervisors  and Markers/Sorters/Checkers  who               belong to Supervisory cadre."

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             (3)   The  Port  Trust  did  not  adduce   any               documentary   evidence   to  show   that   the               Supervisory staff in similar industries is put               on  Roster  off  system  although  the  Deputy               Traffic  Manager  examined on  behalf  of  the               Trust said so in his oral evidence.               (4)   "I am of the view that Roster off system               of      Grade     II      Supervisors      and               Markers/Sorters/Checkers       should       be               discontinued   that  they  should   be   given               additional half day’s wages and other day  off               for  working on Sundays and that their  demand               for  discontinuing  the Roster off  system  is               just  and  fair.   The  same  deserves  to  be               accepted. The  employers had filed special leave petition No.  451  of 1970  in this Court to challenge the award of  the  Tribunal but the same was dismissed on 18-3-1970 after perusal of the papers  and  hearing the counsel.  As. usual no  reason  for dismissal   was   given  in  the  order.    The   employers, thereafter, filed a Writ Petition in the Court on March  28, 1970.   This  has  been  allowed  and  the  award  has  been quashed.. The High Court has given the view 976 .lm15 (1)  "The  evidence on both sides is that while  the  roster staff work at the same strength on Sundays as on week  days, so  far  as  the  non-roster staff  are  concerned,  only  a skeleton  staff work on Sundays.  That being so, we fail  to see  how  any unfair, discrimination is involved  in  giving Sunday  as the weekly holiday for the non-roster  staff  and one  day of the week by rotation as the weekly  holiday  for the roster staff.  How the work of an establishment is to be carried  out,  how  the  holidays  are  to,  be  fixed,  are essentially   for   the   management   to determine   and interference is permissible only if this power is  exercised in an unreasonable or unfair manner." (2)  "That Tribunal also seems to have forgotten that  while the non-roster staff are given half-a-day’s additional wages as  also a compensating holiday for working on their  weekly holiday,  the  roster staff are paid  one  day’s  additional wages  as also a compensating holiday for working  on  their weekly holiday.  The only difference is that while Sunday is always  the  weekly holiday for the  non-roster  staff,  the weekly  holiday for the roster staff changes once  in  every three months according to the roster." (3)  "This  is, in effect, retaining the roster  system  for the weekly day off and compelling the Port to pay additional wages for working on Sundays.  The question of wages was not referred  to the Tribunal and its award seems to be  clearly in excess of jurisdiction." (4)  Dismissal of the special leave petition by the  Supreme Court  did not operate as res judicata in the  entertainment of the Writ Petition. Mr.  T. S. Krishnamurthy appearing in support of the  appeal submitted :- (1)  That  the  High Court has  erroneously  over-ruled  the point of res judicata urged on behalf of the appellants. (2)  That  the  award of the Tribunal was just,  proper  and valid.  It was neither beyond the scope of the reference nor did it suffer from any infirmity of law apparent on the face of  the  record  to enable the High Court  to  upset  it  in exercise  of its writ jurisdiction under Article 226 of  the Constitution. In our opinion, none of the contentions raised on behalf  of

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the appellants is correct and fit to be accepted.  Mr. G. B. Pai  appearing for the respondent rightly pointed  out  that the judgment of the High Court is correct and sustainable in law. 977 It  is  well  known that the doctrine  of  res  judicata  is codified in section 11 of the Code of Civil Procedure but it is not exhaustive.  Section 11 generally comes into play  in relation  to civil suits.  But apart from the  codified  law the  doctrine  of  res  judicata or  the  principle  of  res judicata has been applied since long in various other  kinds of  proceedings and situations by Courts in  England,  India and other countries.  The rule of constructive res  judicata is engrafted in Explanation IV of section 1 1 of the Code of Civil Procedure and in many other situations also principles not  only  of direct res judicata but  of  constructive  res judicata are also applied.  If by any judgment or order  any matter in issue has been directly and explicity decided  the decision  operates as res judicata and bars the trial of  an identical issue in a subsequent proceeding between the  same parties.  The principle of res judicata also comes into play when  by the judgment and order a decision of  a  particular issue is implicit in it, that is, it must be deemed to  have been  necessarily  decided  by implication;  then  also  the principle  of  res  judicata  on  that  issue  is   directly applicable.   When any matter which might and ought to  have been  made  a  ground  of defence  or  attack  in  a  former proceeding  but was not so made, then such a matter  in  the eye of law, to-avoid multiplicity of litigation and to bring about  finality in it is deemed to have been  constructively in issue and, therefore, is taken as decided. In  the instant case the award of the Tribunal,  no  doubt, was challenged in the special leave petition filed in  this, Court,  on almost all grounds which were in  the  subsequent writ  proceeding  agitated in the High Court.  There  is  no question,   therefore,   of  applying  the   principles   of constructive  res judicata in this case.  What is,  however, to be seen is whether from the order dismissing the  special leave  petition  in limine it can be inferred that  all  the matters agitated in the said petition were either explicitly or implicitly decided against the respondent.   Indisputably nothing was expressly decided.  The effect of a non-speaking order  of  dismissal without anything  more  indicating  the grounds  or  reasons  of its dismissal  must,  by  necessary implication, be taken to have decided that it was not a  fit case  where special leave should be granted.  It may be  due to several reasons.  It may be one or more.  It may also  be that  the merits of the award were taken into  consideration and  this Court felt that it did not require  any  interfer- ence.   But  since the order is not a  speaking  order,  one finds  it  difficult to accept the argument put  forward  on behalf  of  the appellants that it must be  deemed  to  have necessarily decided implicitly all the questions in relation to  the  merits  of  the award.   A  writ  proceeding  is  a different  proceeding.   Whatever can be held to  have  been decided  expressly, implicitly or even constructively  while dismissing  the special leave petition cannot  be  reopened. But the technical rule of res judicata, although a wholesome rule  based upon public policy, cannot be stretched too  far to bar the trial of identical issues in a separate have been decided.   It  is not safe to, extend the principle  of  res judicata to such an extent so as to found it on mere,  guess work.   To  illustrate  our  view point,  we)  may  take  an example.   Suppose a writ petition is filed in a High  Court for grant of a writ of Certiorari to challenge

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978 some  order  or decision on several ’grounds.  If  the  Writ Petition  is  dismissed after contest by  a  speaking  order obviously  if  will  operate as res judicata  in  any  other proceeding,  such  as, of suit, Article 32  or  Article  136 directed  from  the  same order or decision.   If  the  Writ Petition  is  dismissed by a speaking order  either  at  the threshold  or  after  contest, say, only on  the  ground  of laches  or the availability of an alternative  remedy,  then another  remedy  open in law either by way of  suit  or  any other  proceeding  obviously  will  not  be  barred  on  the principle  of  res  judicata.   Of  course,  a  second  writ petition  on  the same cause of action either filed  in  the same  High  Court  or in another will  not  be  maintainable because the dismissal of one petition will operate as a  bar in  the entertainment of another writ  petition.   Similarly even  if one writ petition is dismissed in limine by a  non- speaking  one word order ’dismissed’, another writ  petition would  not be maintainable because even the one word  order, as  we  have indicated above, must necessarily be  taken  to have  decided impliedly that the case’ is not a fit one  for exercise  of  the  writ  jurisdiction  of  the  High  Court. Another  writ petition from the same order or decision  will not lie.  But the position is substantially different when a writ petition is dismissed either at the threshold or  after contest without expressing any opinion on the merits of  the matter, then no merit can be deemed to have been necessarily and impliedly decided and any other remedy of suit or  other proceeding  will  not  be barred on  the  principle  of  res judicata. There  are several decisions of this Court dealing with  the doctrine  and principles of res judicata.  We may  refer  to only  a few.  In Daryao and others v. The State of U.P.  and others(1) Gajendragadkar J., delivering the judgment of this Court  elaborately  discussed the rule of res  judicata  and ultimately  held that where the High Court dismisses a  writ petition  after  hearing  the matter on the  merits  on  the ground that no fundamental right was proved or contravened a subsequent petition to the Supreme Court under Article 32 on the  same facts and for the same reliefs filed by  the  same party  would  be  barred by the general  principles  of  res judicata.  At page 591 says the learned Judge :-               " In such a case the point to consider  always               would  be what is the nature of  the  decision               pronounced    by   a   Court   of    competent               jurisdiction and what is its effect." This passage lends support to the principles of res judicata enunciated  by  us  above.  In Daryao’s  case  ’(supra)  the conclusions are stated at page 592.  Two situations, namely, (1)  disposal of the writ application on merits and (2)  its dismissal  not on merits but on the ground of Laches of  the party or the availability of an alternative remedy,  enabled us  to state what we have said above.  The, dismissal  of  a writ petition in limine with a reasoned order may or may not constitute  a It will depend upon the nature of  the  order. "If  the petition is dismissed in limine", says the  learned Judge, "without passing a (1)  [1962] 1 S.C.R. 574. 979 speaking  order  then such dismissal cannot  be  treated  as creating  a  bar  of res judicata.  It is  true  that  prima facie,  dismissal in limine even without passing a  speaking order  in  that behalf may strongly suggest that  the  Court took the view that there was no substance in the petition at all; but in the absence. of a speaking order it would not be

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easy to decide what factors weighed in the mind of the Court and  that makes it difficult and unsafe to hold that such  a summary  dismissal  is  a dismissal on merits  and  as  such constitutes a bar of res judicata against a similar petition filed under Art. 32." We have thought it proper to elucidate this  aspect  of the matter a bit further to  indicate  that dismissal  of  a writ petition in limine by a  non  speaking order  could certainly create a bar in the entertainment  of another  writ petition filed by the same party on  the  same cause of action. This decision was followed in P. D. Sharma v. State Bank  of India(1), wherein it was held that the summary dismissal  of a  writ petition under Article 226 challenging the order  of the  Labour  Court  was no bar to the  entertainment  of  an appeal  under Article 136 from the same order of the  Labour Court.  Hegde J has stated at page 94 thus :-               "From  the order of the High Court it  is  not               possible  to  find out the reason  or  reasons               that  persuaded it to reject  the  appellant’s               petition.  An appeal under Art. 136 against an               order can succeed even if no case is made  out               to issue a writ of certiorari." Mr.  Krishnamurthy  rightly  pointed  out  that  the   lines extracted  above indicate that the scope of  the  proceeding under Art. 136 was wider than that of a writ petition.   But he was not right in saying that dismissal of a special leave petition   under   Art.  136  must  necessarily-   bar   the entertainment  of  a  writ petition under Art.  226.   In  a recent  decision of this Court in State of Uttar Pradesh  v. Nawab  Hussain(2)  Shinghal J., delivering the  judgment  on behalf  of the Court applied the principles of  constructive res judicata and held that a suit to challenge the order  of dismissal from service after dismissal of the writ  petition on  merits  was not maintainable although a  new  ground  of attack was made out in the suit which had not been taken  in the  writ petition.  This was so on the application  of  the principle  of constructive res judicata.  It will be  useful to quote a passage from page 431 which runs as follows :-               "Reference  in this connection may be made  to               Ex  Parte  Thompson-6 Q.B. 720.  There  A.  J.               Stephens  moved  for a rule calling  upon  the               authorities  concerned  to show  cause  why  a               mandamus should not issue.  He obtained a rule               nisi,  but  it was discharged as  it  did  not               appear  that  there had been a  demand  and  a               refusal.   He applied again saying that  there               had  been a demand and a refusal  since  then.               Lord  Denman C.J., observed that  as  Stephens               was making an               (1)   [1968] 3 S.C.R. 91.               (2)   [1977] 3 S.C.R. 428.               980               application which had already been refused, on               fresh  materials, he could not have "the  same               application  repeated  from time to  time"  as               they had "often refused rules" on that ground.               The  same  view has been taken in  England  in               respect  of renewed petition  for  certiorari,               quo warranto and prohibition, and, as we shall               show,  that  is  also  the  position  in  this               country." The  above passage amply supports the view expressed  by  us above.   We, have thought it proper to give some  additional reasons to cuff out the identical principle. We  may now advert very briefly to some of the decisions  of

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the  High  Court  cited at the Bar.  In  The  Management  of Western  India  Match  Co. Ltd., Madras  v.  The  Industrial Tribunal, Madras and another(1) it was pointed out, at  page 403  but in our opinion, in some what too broad a term  that :-               "The right to apply for leave to appeal to the               Supreme   Court   under  Art.   136   of   the               Constitution  if it could be called a  "right"               at all cannot be equated to a right to appeal.               Obviously  a  High  Court  cannot  refuse   to               entertain an application under Art. 226 of the               Constitution on the ground that the  aggrieved               party could move the Supreme Court under  Art.               136  of  the Constitution.  That  the  Supreme               Court  declined to exercise its discretion  in               favour of the petitioner by granting the leave               asked  for cannot, in our opinion, affect  the               jurisdiction  vested in the High  Court  under               Art. 226 of the Constitution." The  law  so broadly stated is not quite  accurate  although substantially  it is correct to the extent we  have  pointed out above.  A learned single Judge of the Kerala High  Court followed  the  aforesaid Bench decision of the  Madras  High Court  in S. I. Emmatty, Proprietor Jai Hind Motor  Service, Ernakulam  v. Venkitaswami Naidu and others(2) In Bansi  and another  v. Additional Director, Consolidation of  Holdings, Rohtak and others(3) it was held that when a petition  under Art.  226 of the Constitution has been dismissed in  limine, it cannot again be revived by the same petitioner by another petition  on  substantially the same  allegations.   It  has further  been rightly pointed out that such a  dismissal  in limine  not  on merits but for laches or on  the  ground  of availability  of  alternative remedy does not bar  a  second petition under Art. 32, and we may add, any other proceeding available  in law.  For the reasons stated in our  judgment, we approve of his decision.  The appellants placed  reliance upon  the  decision of the Calcutta High  Court  in  Haridas Malakar  and  others v. Jay Engineering  Works  (4)  wherein following the decision of the Madras High Court in the  case of  Western  India Match Co. the learned Judge has  said  at page  29 that he respectfully agreed with the view  of  the, learn- (1)  A.I.R. 1958, Madras, 398. (2)  A.I.R. 1959, Kerala 291. (3)  A.I.R. 1967, Punjab, 28. (4)  [1975] 2 Labour Law Journal, 26. 981 ed Judges of the Madras High Court.  We have already pointed out the inaccuracy in the broad statement of the law in  the Madras  decision.   In  any  event  it  does  not  help  the appellants at all. Coming  to the merits of the award made by the  Tribunal  it would  suffice to point out that the Tribunal did  not  find that Roster off system was not necessary for the  successful working of the Port work as deposed to by the Deputy Traffic Manager of the Port Trust.  No discrimination could be found in  the  Roster  off system as such.  It was  found  in  the matter  of  non-payment of extra half a  day’s  wages.   The error  of law apparent on the face of the award was that  if Roster  off system was necessary for the  Supervisory  staff and  the porterage labour, then the Roster category  of  the workmen was a class by itself and equating such workmen with other  categories  of  the  workmen  who  were  very  seldom required   to  work  on  Sundays  was  obviously   a   wrong application  of  the’  principles  of  discrimination.    In

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substance  and in effect the award went beyond the scope  of reference although in form in which the final order was made it did not do so.  The Tribunal exceeded its jurisdiction in saying that categories xvi and xvii of the workmen could  be always  made  to work on Sundays but they  should  be  given additional half day’s wages besides a day off for working on Sundays.  This is an entirely different kind of relief which the  Tribunal  purported to grant.  It was  not  within  the terms of the reference.  On the findings of the Tribunal the point  of  reference ought to have been answered  by  saying merely that the demand for changing the Roster off system in respect  of the two categories of the workmen was  justified or  not justified.  We would, however, like to observe  that it may be open to the workmen to raise an industrial dispute demanding  half day’s extra wages on account of their  being asked  to  work on Sundays on the basis of  the  Roster  off system.  Even though the system may not be unjustified,  yet it  may  be possible for the workmen to  press  and  justify their  demand  of extra half day’s wages.  Giving  them  one day’s full wages when, per chance, they are asked to work on their  off day may not be a compensation fit to  be  equated with the said demand.  This is not a matter on which we  are called  upon  to express any opinion as to  whether  such  a demand  would  be justified or not or whether it  should  be acceeded to.  But what we want to emphasize here is that the relief  granted by the Tribunal was beyond the scope of  the reference. For the reasons stated above, we dismiss this appeal but  in the circumstances make no order as to costs. S.R. Appeal dismissed. 982