Holding

Permission to withdraw a special leave petition cannot be equated with an order of dismissal, and therefore does not preclude a fresh petition under Article 226.

Summary

The Industrial Tribunal awarded a decision against Ahmedabad Manufacturing & Calico Printing Co. Ltd., which the company challenged by filing a special leave petition under Article 136 of the Constitution. The company later withdrew that petition, and four days thereafter filed a writ petition under Article 226 in the Bombay High Court on the same facts and grounds. The High Court dismissed the writ petition, equating the withdrawal of the special leave petition with a dismissal and relying on Vasant Vithal Palse. The Supreme Court held that permission to withdraw a special leave petition is not the same as a dismissal and therefore does not bar a fresh petition under Article 226. Consequently, the High Court’s dismissal was set aside and the matter remitted for consideration on its merits.

Issues considered

Whether an unconditional withdrawal of a special leave petition amounts to its dismissal.
Whether such withdrawal bars the filing of a fresh petition under Article 226 of the Constitution on the same facts and grounds.
Whether the High Court exercised proper discretion in dismissing the writ petition in limine on the ground of withdrawal.

Legislation cited

Industrial Disputes Act, 1947s. 10(2)

Subjects

industrial disputespecial leave petitionwithdrawaldismissalres judicataArticle 226Article 136High Court discretionwrit petition

Judgment

213

AHMEDABAD MANUFACTURING & CALICO A
PRINTING CO. LTD.
v.
WORKMEN & ANR.

March 12, 1981
B
[ A.D. KOSHAL AND R.B. MISRA, JJ. ]

Special leave petition allowed to be withdrawn unconditionally-Whether
amounts to a dismissal and,..therefore, a bar to entertain a fresh petition under
Article 226 of the Constitution on the same/acts and grounds taken in the special
leave petition.
c
The Industrial Tribunal, Ahmedabad, on a dispute referred to it under
section 10(2) of the Industrial Disputes Act, 1947 took up for consideration four
demands for basic wages and adjustment, dearness allowance, gratuity and retros:
pectivity of the demands of the workmen. The Tribunal gave its award on 30th
of November 1971 which was published on 20th January, 1972 in the Maharashtra
Government Gazette.
D
The appellant company, feeling aggrieved by the award, filed in the
Supreme Court a petition for spedal leave to appeal under Article 136 of the
Constitution. Pursuant to a notice, the respondent workmen put in appearance
and filed a counter affidavit. After some arguments the appellant Company at
its request was permitted to withdraw the leave petition as per the order of the
Court dated 21st of August, 1972 which reads : "Upon hearing counsel the Court
allowed the special leave petition to be withdrawn". Four days thereafter the E
company filed a petition under Article 226 of the Constitution before the High
Court challenging the award. The petition was virtually based on the same
facts and grounds as were taken in the special leave petition before the Supreme
Court. The learned single Judge who heard the petition determined the circum-
stances on the basis of the respective affidavits filed by the parties in which the
comoany unconditionally withdrew its special leave petition and in view
of those circumtsances equated the withdrawal of the leave petition with the F
dismissal of the same. Relying on Vasant Vithal Palse and Ors. v. The Indian
Hume Pipe Co. Ltd. and Anr. [1970] 2 LLJ 328, a decision .of that court, the
learned Judge dismissed the writ petition in fimine. A Letters Patent Appeal
against the said order of dismissal also met the same fate. However, a petition
under Article 133 of the Constitution for a certificate of fitness to appeal to the
Supreme Court was accepted by the said Division Bench and a certificate was
granted and hence the appeal. G
Allowing the appeal, the Court

HELD : I. Permission to withdraw a special leave petition cannot be
equated with an order of dismissal. If a non-speaking order of dismissal can-
not operate as res judicata for entertaining a fresh writ petition on the same H
facts and grounds taken in the special leave petition, an order permitting the with-
drawal of the writ petition for the same reason cannot so operate. [219B,222C-D)
214 SUPREME COURT REPORTS [1981] 3 S.C.R.

A Workmen of Cochin Port Trust v. Board of Trustees of Cochin Port Trust
and Anr., [1978]13 SCR 971, followed.

Punjab Beverages Pvt. Ltd. v. Suresh Chand and Anr., [1978] 3 SCR 370; "f
Hoshnak Singh v. Union of India and Ors., [1979] 3 SCR 399; Daryao and Ors. v.
The State of U.P. and Ors., [1962] I SCR 574, discussed.

B Vasant Vithal Palse and Ors, vThe Indian Hume Pipe Co. Ltd. and Anr.,
[1970] 2 LLJ 328; Management of Western India Match Co. Ltd., Madras v.
The Industrial Tribunul, Madras and Anr. A.LR. 1958 Mad. 398, distinguished.

2. The order of a court has to be read as it is. If the Supreme Court
intended to dismiss the petition at the threshold. it could liave said so explicitly.
In the absence of any indication in the order itself, it will not be proper to enter
c into the arena of conjecture and to come to a conclusion on the basis of extra-
neous evidence that the Supreme Court intended to reject the leave petition. If
the Order of the Supreme Court is read as it is there is not the slightest doubt
that the Supreme Court had. allowed the company to withdraw the leave petition,
in the instant case. The approach of the High Court in having perused the
affidavits filed by the parties to know the circumstances under which the leave
petition was withdrawn is not correct. [217 C-D]
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1678 of
1973.

From the Judgment and Order dated 4.7.1973 of the Bombay
High Court in Appeal No. 142/72.
E •
F. S. Noriman, Y. S. Chitde, 0. C. Mathur, K. J. John, Sri
Narain, Narayan B. Shetya and M. Mudgal for the Appellant.

P. D. Damania, B. R. Aganvala and P. G. Gokhale for Respon-
dents 1-2.

F M. K. Ramamurthy and Jatinder Sharma for Respondent 3.

Janardhan Sharma for the Interveners.

The Judgment of the Court was delivered by

G MISRA, J. The present appeal by certificate is directed
against the judgment dated 4th of July, , 1973 of the High Court of
Bombay in a Letters Patent Appeal arising out of a petition under
Article 226 of the Constitution.

The facts leading up to this appeal lie in a narrow compass.
H The appellant-the Ahmedabad Manufacturing and Calico Printing
Co. Ltd. (hereinafter. called the Company)-is predominantly a
textile manufacturer but has also factories in Bombay manufacturing
CALICO PRINTING v. WORKMEM (Misra, J.) 215

heavy chemicals and engages about 750 workmen in three such A
factories. A dispute arose between the Company and the said
workmen in respect of seventeen demands raised by them through
their union. The disoute was referred to the Industrial Tribunal
under section 10(2) of the Industrial Disputes Act, 1947. Out of
the demands of the workmen the Tribunal took up for consideration
only four demands, that is, demands Nos. l, 2, 15 and 16 respecti- B
vely for basic wages and adjustment, dearness allowance, gratuity
and retrospective effect of the demands. The Tribunal gave its
award on 30th of November 1971 and sent a copy thereof to the
parties. The award was published on 20th of January, 1972 in the
Maharashtra Government Gazette. Under the rules it was to be
effective after one month of its publication in the Gazette. c
The Company, feeling aggrieved by the award, filed with this
Court a petition for special leave to appeal under Article 136 of the
Constitution (the leave petition, for short). Pursuant to a notice,
the respondent union put in appearance and filed a counter affidavit.
It appears that after some arguments the appellant chose to with- D
draw the leave petition. As much turns upon the order .of this
Court dated 21st of August, 1972 permitting withdrawal, it would be
appropriate to quote the same :

"Upon hearing counsel the Court allowed the special·
leave petition to be withdrawn." E
Four days thereafter the Company filed a petition under
Article 226 of the Constitution before the High Court challenging
the award. That petition was virtually based on the same facts and
l grounds as were taken in the leave petition before this Court.
The respondent union appeared and filed a counter affidavit urging F
that the petition be dismissed in limine. A rejoinder affidavit was
filed on behalf of the Company.

On the date of hearing three preliminary objections were
raised on behalf of the union respondent. In the present appeal we
are, however, concerned only with one of them, namely, that the
G
High Court should not exercise discretion in granting relief to the
Company under Article 226 of the Constitution, after the withdrawal
of the leave position unconditionally.

This objection prevailed with the High Court. The learned H
Single Judge determined the circumstances on the basis of the
respective affidavits filed by the parties, in which the Company
216 SUPREME COURT REPORTS [1981] 3 S.C.R

A unconditionally withdrew its leave petition and in view of those
circumstances he equated the withdrawal of the leave petition with
the dismissal of the same. Relying on Vasant Vithal Palse and Ors. v.
The Indian Hume Pipe Co. Ltd. and Anr.(1) he held that it was not a
fit case for exercise of the Court's discretionary power to admit the
writ petition and accordingly dismissed the same in limine.
B
The Company filed a Letters Patent Appeal but the Division
Bench dismissed the same and confirmed the order of the learned
Single Judge. The preliminary objection which weighed with the
High Court was repeated on behalf of the union respondent before
the Division Bench in appeal with two contentions : (!) the uncon-
c ditional withdrawal by the Company of its leave petition in the
circumstances found by the learned Single Judge is a bar to the
competence of the Court to entertain the petition under Article 226
of the Constitution. In other words, the High Court has no juris-
diction to grant rule nisi under Article 226 in view of the withdrawal
of the petition under Article 136 of the Constitution; (2) The learned
D Single Judge has rightly dismissed the petition in limine under Article
226 of the Constitution in the exercise of his discretion on the
ground that the leave petition based on the same contention was
unconditionally withdrawn. Although the Division Bench discussed
the first contention but refused to decide it as it was taken for the
first time before it in appeal. The second contention was, however,
E accepted by the Division Bench. The High Court did not consider
the other cases cited on behalf of the Company as it thought that
the point in question was concluded by a Division Bench of that
Court in Vasant Vithal Palse's case (supra). The Company there-
after moved a petition under Article 133 of the Constitution for a
certificate of fitness to appeal to the Supreme Court which was
F granted by the High Court and this is how the present appeal comes )
before us.

Two questions arise for consideration in this appeal :(I) Whether
unconditional withdrawal of the leave petition would amount to its
dismissal ? (2) If so, what would be its impact on the petition
G under article 226 of the Constituti0n ?

It was contended for the appellant that the order of this
Court permitting the appellant to withdraw the leave petition
H should be read as it is and that so read the order only means that

(I) [1970] 2 L.L.J. 328.
CALICO PRINTING V. WORKMEN (Misra, J.) 217

the Company had withdrawn the leave petition. It was urged that A
the mere fact that the appellant chose to withdraw the leave petition
after some arguments will not alter the nature of the order and
that by no stretch of imagination can it be said that the leave
petition had been dismissed by this Court. It may be, it was argued
that the Company chose to withdraw the leave petition on the
ground that this Court was not favourably inclined to grant it or B-
that the Company chose to avail of a better remedy before the
High Court under Article 226 of the Constitution, which had a
wider scope.

The High Court perused the affidavits filed by the parties to
know the circumstances under which the leave petition was with- c
drawn, but in our opinion that is not a correct approach. The
order of a Court has to be read as it is. If this Court intended to
dismiss the petition at the threshold, it could have said so explicitly.
In the absence of any indication in the order itself, it will not be pro-
per to enter into the arena of conjecture and to come to a conclu-
sion on the basis of extraneous evidence that this Court intended to D
rejeet the leave petition. If the Order of this Court is read as it is
there is not the slightest doubt that this Court had allowed the
Company to withdraw the leave petition, and if that be so, it would
be idle to argue that the leave petition had been dismissed at the
threshold.
E

Reliance was placed on behalf of the appellant on Workmen
of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust
& Anr.(1) In that case a special leave petition had been dismissed
in limine with a non-speaking order. This Court dealing with the
impact of that order observed as follows : F

"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 subse-
quent proceeding between the same parties. The principle of
G
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 impli-
cation; then also the principle of res }udicata on that issue is
directly applicable."
H
(!) (1978] 3 S.C.R. 971.
218 SUPREME COURT REPORTS [1981] 3 S.C.R,

A Then the Court proceeded to consider whether the .matter in issue
has been either explicitly or implicitly decided. Dealing· with that
aspect of the matter the Court further observed :

"Indisputably nothing was expressly decided. The effect
of a non-speaking order of dismissal without anything more
B 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 con-
sideration and this Court felt that it did not require any
c interference. But since the order is not a speaking order, one
finds it difficult to accept the argument put forward on behalf
of the appellants that it must be deemed to have necessarily
decided implicitly all the questions in .relation to the merits of
the award. A writ proceeding is a different proceeding.
Whatever can be held to have been decided expressly, impli-
D citly or even constructively while dismissing the special leave
petition cannot be re-opened. But the technical rule of res
judicata, although a wholesome rule based. on public policy,
cannot be stretched too far to bar the trial of identical issues
in a separate proceeding merely on an uncertain assumption
that the issues must have been decided. It is not safe to
E extend the principle of res judicata to such an extent so as to
found it on mere guesswork .... If the writ petition is dismissed
by a speaking order either at the threshold or after contest,
·say, only on the ground of !aches 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
F barred on the principle of res judicata. Of course, a second )
writ petition on the same cause of action either filed in the
same High Court or in another will not be maintainable
because the dismissal of one petition will operate as a bar in
the entertainment of another writ petition. Similarly even if
one writ petition is dismissed in limine by a non-speaking order
G '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
H decision. will not lie. But the position is substantially different
when a writ petition is dismissed either at the threshold or
CALICO PRINTING v. WORKMEN (Misra, J.) 219

after contest without expressing any opinion on the merits of A
the matter; then no merit can be deemed to have been necess·
arily and impliedly decided and any other remedy of suit or
other proceeding will not be barred on the principle of res
judicata."

If a non-speaking order of dismissal cannot operate as res judicata, B
an order permitting the withdrawal of the leave petition for the same
reason cannot so operate. The case in hand stands on a still better
footing than the case of Workmen of Cochin Port Trust (supra).

Next reliance was placed on Punjab Beverages Pvt. Ltd. v.
Suresh Chand & Anr.(1) In that case one of the contentions raised
was that no application for approval was made by the appellant to
c
the Industrial Tribunal and that there was thus contravention of
section 3J (2) (b) of the Industrial Disputes Act, 1947. An appli-
cation for approval was in fact made under section 33 (2) (b), but
that was withdrawn and the argument advanced was that the with-
drawal was tantamount to refusal of approval, that the ban imposed D
by section 33 (2) (b), therefore, continued to operate and that the
order of dismissal passed by the appellant was void and inoperative.
The contention was, however, repelled and this Court observed :
I

"Where, however, the application for approval under
section 33 (2) (b) is withdrawn by the employer and there is E
no decision on it on rrierits, it is difficult to see how it can be
said that the approval has been refused by the Tribunal. The
Tribunal having had no occasion to consider the application
on merits there can be no question of the Tribunal refusing
approval to the employer. It cannot be said that where the
application for approval is withdrawn, there is a decision by F
the Tribunal to refuse to lift the ban. The withdrawal of the
application for approval stands on the same footing as if no
application under section 33 (2) (b) has been made at all."

In Hoshnak Singh v. Union of India & Ors.(2j an earlier petition G
was dismissed by a non-speaking one word order ·dismissed'. A
second petition after pursuing the alternative remedy was filed. A
question arose whether the same would be barred by the principles
analogous to res judicata. This Court held that the second petition
would not be so barred because the cause of action was entirely
H
(I) [1978] 3 S C.R. 370.
(2) [1979] 3 S.C.R. 399.
220 SUPREME COURT REPORTS [1981] 3 S.C.R.

A different and the dismissal could not stand in the way of the peti-
tioner invoking the jurisdiction of the High Court under Article 226
of the Constitution.

Reliance was next placed on Daryao & Ors. v. The State of
U.P. & Ors.(1) In that case the previous petition for a writ filed by
B the petitioner before the High Court was withdrawn. The High
Court, therefore, dismissed the said petition with the expre~s obser-
vation that the merits had not been considered by the High Court
in dismissing it and that, therefore, no order as to costs was passed.
It was held by this Court that the order dismissing the writ petition
as withdrawn could not constitute a bar of res judicata.
c ·.-A.
Counsel for the respondent union has contended that the order
of rejection may be either explicit or implicit and that it can be
shown from the circumstances of the present case that the leave
petition was withdrawn only after full arguments when the appellant
found that this Court was not favourably inclined to grant it, In
D
these circumstances it is argued that the order of withdrawal would
amount to the dismissal of the leave petition and that in this view
of the matter the High Court in the sound exercise of its discretion
was justified in dismissing the writ petition in limine. In support of
this contention the learned counsel relied upon Shankar Ramchandra
Abhyankar v. Krishnaji Dattatreya Bapat .(2) In that case the respondent
E
first filed a revision under section 115 of the Code of Civil Proce-
dure. The revision was, however, dismissed. Thereupon the res-
pondent moved a petition under Articles 226 and 227 of the Consti-·
tution challenging the same order of the appellate court. The High
Court held that in spite of the dismissal of the revision petition, it
F could interfere under Articles 226 and 227 of the Constitution on a
proper case being made out. This Court, however, reversed the J
order of the High Court holding that even on the assumption that
the order of the appellate court had not merged in the order of the
Single Judge who had disposed of the revision petition, a writ peti-
tion ought not to have been entertained by the High Court when the
G respondent had already chosen the remedy under section 115 of the
Code of Civil Procedure and that if there are two modes of invoking
the jurisdiction of the High Court and one of those modes has been
chosen and exhausted it would not be proper and sound exercise of
discretion to grant relief in the other set of proceedings in respect of
H
(1) [1962] l S.C.R. 574.
(2) [1970] 1 S.C.R. 322.
CALICO PRINTING v. WORKMEN (Misra, J.) 221

the same order of the subordinate court. The facts of that case are A
materially different from those of the case in hand and that case is
not of much assistance in solving the problem before us.

Jn Vasant Vithal Palse's case (supra} the trade union filed an
application for special leave to appeal to this Court and the same
was rejected. Thereafter the individual workmen filed a petition B
under Article 226 of the Constitution challenging the award without
disclosing the fact that application for special leave made to the
Supreme Court by the trade union had been rejected. The writ
petition was dismissed on the grounds : (I) that the material facts
had been concealed, and (2) that the leave petition filed by the trade
union had been dismissed by the Supreme Court. That case is also c
distinguishable on facts, firstly because there is no concealment of
facts in the present case, and, secondly, the Supreme Court in that
case had dismissed the application for special leave. In the cas.e in
hand the petition has only been permitted to be withdrawn. It is
on the basis of that decision that the High Court had dismissed
the petition in limi11e. D
Next, reliance was placed on A. M. Allison v. B. L. Sen.(') This
Court dealing with the writ of certiorari observed as follows :

"A writ of certiorari cannot be issued as a matter of
course. The High Court is entitled to refuse the writ if it is
satisfied that there was no failure of justice. The Supreme E
Court declines to interfere, in appeal, with the discretion of
the High Court unless it is satisfied that the justice of the case
requires such interference."

There is no quarrel with the proposition that a writ of certiorari
is not issued as a matter of course and that the petitioner has to F
satisfy the Court that his rights have been infringed ·so that there
has been failure of justice. In the instant case the appellant chose
to file a petition for leave to appeal to the Supreme Court but
eventually withdrew the petition and thereafter invoked the juris-
diction of the High Court under Article 226 of the Constitution and
the High Court in its discretion chose to dismiss the writ petition G
in !imine only on the ground that the petitioner had moved an
application for special leave before the Supreme Court and withdrew
the same unconditionally. In view of the law laid down by this
Court in a recent decision in the case of Workmen of Cochin Port
Trust (supra) the decision in Aflison's case has lost its efficacy. H
(I) [1957] S.C.R. 359.
222 SUPREME COURT REPORTS [1981] 3 S.C.R.

A In the Management of Western India Match Co. Ltd., Madras
v. The Industrial Tribunal, Madras & Am.,(1) the Supreme Court
had declined to exercise its discretion in favour of the petitioner
by grantiug leave unc'.er Article 136 of the Constitution against an
award of the Industrial Tribunal without giving any reasons. The
Madras High Court held that in the circumstances of the case it
B would not be a proper exercise of its discretion in admitting the
writ petition despite the evidence that the Industrial Tribunal failed
to give opportunity to the petitioner to produce evidence and thus
violated a principle of natural justice, when the Supreme Court had
dismissed the leave petition against the award. In that case the
Supreme Court had dismissed the leave petition. The facts were
c thus materially different from the facts of the present appeal.
Besides, this Court has taken a different view in the recent case of
Workmen of Cochin Port Trust (supra),

After having analysed the various cases cited, we are of the
view that permission to withdraw a leave petition cannot be
D equated with an order of its dismissal. We ,also come to the con-
clusion that in the circumstances of the case the High Court has
not exercised a proper and sound discretion in dismissing the writ
petition in limine on the sole ground that the application for special
leave on the same facts and grounds had been withdrawn uncon-
ditionally.
E
We accordingly allow the appeal and set aside the impuged
order and the order of the learned Single Judge dated 9th November,
1972 in writ petition No. 583 of 1972 and send the case back to him
for considering the writ petition on merits. There is, however, no
order as to costs.
F
S.R. Appeal allowed.

(1) A.LR. 1958 Mad. 398.