Holding

A non‑speaking dismissal of a Special Leave Petition does not preclude the party from invoking the High Court’s writ jurisdiction under Article 226, and the doctrine of election is inapplicable.

Issues considered

Does the dismissal of a Special Leave Petition by a non‑speaking order bar the petitioner from filing a writ petition under Article 226 of the Constitution?
The doctrine of election: can a party be precluded from seeking relief in a different forum after an unsuccessful SLP?
Does a non‑speaking order of dismissal give rise to res judicata or constructive res judicata in subsequent proceedings?
Can the High Court exercise its discretionary jurisdiction to refuse a writ petition solely on the basis of the SLP dismissal?

Legislation cited

Code of Civil Procedure, 1908s. Section 115
Constitution of Indias. Article 136, s. Article 226

Subjects

Special Leave PetitionArticle 226Doctrine of electionRes judicataWrit jurisdictionNon‑speaking orderLabour Court awardHigh Court discretion

Judgment

•

A

INDIAN OIL CORPORATION LTD.
v.
STATE OF BIHAR & pRS.
B
AUGUST 13, 1986

[V. BALAKRISHNA ERADI ANDM.M. DUTT, JJ.]

Constitution of India, 1950- •

Art. 226-Writ Petition-Refusal to co_nsider on merits solely on
c
ground that a special leave petition had been dismissed by a non-
speaking order-Validity of.

Art. 136-Special Leave Petition-Grant of-Dismissal by a non-
.... speaking order-Effect of. D

The appellant's special leave petition against the award of the
Labour Court dated March I I, 1983 granting r~lief to its employee-
respondent No. 3, was dismissed by a non-speaking order. In the said
proceedings, respondent No. 3 had also been represented by a counsel.
Thereafter, the appellant approached the High Court by preferring a E
writ petition unde~ Art. 226 of the Constitution seeking to quash the
.,.. aforesaid award of the Labour Court. The High Court admitted the
writ petltion and granted interim stay of enforcement of the award.

The third respondent unsuccessfully challenged the aforesaid in-
terim order by a special leave petition. Subsequently when the main F
writ petition came up for final hearing before the Division Bench of the
· High Court, the third respondent again raised_ a preliminary objection
as to the maintainability of the writ petition. The High Court upheld the •
preliminary objection and dismissed the writ petition holding (i) that
the dismissal in limine by the Supreme Court of the special leave peti-
tion filed by the appellant against the award by the non-speaking order G
precluded the appellant from challenging the said award before the
High Court; (ii) that the doctrine of election was applicable to the case
and the appellant having chosen the remedy of approaching the
superior court and failed in that attempt, he could not thereafter resort
to the alternative remedy of approaching the High Court for relief
"-. under Article 226 of the Constitution; and (iii) that the writ jurisdiction H

553

•
554 SUPREME COURT REPORTS . 11986] 3 S.C.R.

A of the High Court under Art. 226 of the Constitution being essentially·
discretionary in nature, it will be a sound exercise of the court's discre-
tion to refuse relief in such a situation.

Allowing the appeal and remanding the case to the High Court for
disposal on merits,
B
HELO: 1.(1) The view taken by the High Court was not right and
that the High Court should have gone into the merits of the writ petition
without dismissing it on the preliminary ground. The dismissal by
Supreme Court of the special leave petition of the appellant by a non-
speaking order did not operate as a bar against the appellant In the
c matter of challenging the impugned award of the Labour Court by
resort to proceedings before the High Court under Art. 226 of the
constitution. [560D·E]
'
1.(ii) The effect of the-non-speaking order of dismissal of a special
leave petition without anything more indicating the grounds or reasons
D
of its dismissal must, by necessary implication, be taken to be that the
Supreme Court had decided only that it was not a fit case where special
leave should be granted. Questions which can be said to have been
decided by this Court expressly, implicitly or even constructively while
dismissing the special leave petition cannot, of course, be re-opened in a
subsequent writ proceeding before the High Court. But neither on the
E
principle of re~ judicata nor on any principle of public policy analogous
thereto, would the order of this court dismissing the special leave peti·
tion operate to bar the trial of identical issues in a separate proceeding
namely, the writ proceeding before the High Court merely on the basis
of an uncertain assumption tbaf the issues must have been decided by
this Court at least by implication. It is not correct or safe to extend the - ~
F
principle of res judicata or constructive res judicata to such an extent so
as to found it on mere guesswork. [558C-G]

Workmen of Cochin Port Trust v. Board of Trustees of the
Cochin Port Trust and Another, 11978] 3 SCC 119 and Ahmedabad
Manufacturing & Calico Printing Company Ltd. v. Workmen and Anr,
G
11981] 3 SCR213, relied upon ..

Wilson v. Colchester Justices, (1985}-Vol. 2-AII England Law
Reports at page 97, referred to.

2. It is not the policy of the Supreme Court to entertain special
H
INDIAN OIL CORPN LTD v. STATE OF BIHAR 555

leave petitions and grant leave under Art. 136 of the Constitution save A
in those cases where some substantial question of law of general or
public importance is involved and there is manifest injustice resulting
from the impugned order or judgment. Moreover, having regard to the
very heavy backlog of work in the Supreme Court and the necessity to
restrict the intake of fresh cases by strictly following the criteria afore-
8
mentioned, it has very often been the practice of the Supreme Court not
to grant special leave except where the party cannot claim effective
• relief by approaching the concerned High Court under Art. 226 of the
Constitution. In such cases also special leave petitions are quite often
dismissed only by passing a non-speaking order and it would wor.k
extreme hardship and injustice if the High Court were to close its doors
to the petitioner and refuse him relief under Art. 226 of the Constitution c
on the sole ground of dismissal of special leave petition. [559A-E]

Workmen of Cochin Port Trust v. Board of Trustees of the
Cochin Port Trust and Another, (1978] 3 SCC 119 and Ahmedabad
Manufacturing & Calico Printing Company Ltd. v. Workmen and Anr,
D
(1981] 3 SCR213, followed.

3. The doctri.ne of election referred to by the High Court has no
application at all to the present situation. [560F]

Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat,
E
[1970 I 1 SCR 322, distinguished.

4. The grant of leave under Art. 226 of the Constitution is un-
doubtedly in the discretion of the High Court but the exercise of that
1 discretionary jurisdiction is to be guided by established legal principles.
r It will not be a sound exercise of that discretion to refuse to consider a
F
writ petition on its merits solely on the ground that a special leave
petition filed by the petitioner in the Supreme Court had been dismissed
by a non-speaking order. [561A-B]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 12~7
(NL) of 1985
G
From the Judgment and Order dated 24th January, 1985 of tile
Patna High Court ,in Civil Writ Jurisdiction No. 5877 of 1983.

M.K. Banerjee, Sol. Genl, D.N. Misra. B.D. Barucha arid A.M.
Dittia for the Appellant. H
\,

556 SUPREME COURT REPORTS [1986] 3 S.C.R.

A M.K. Ramamurthy and Mrs. Gyan Sudha Mishra for the Res-
pondents.

The Judgment of the Court was delivered by

B BALAKRISHNA ERADI, J. The short question that arises for
decision in this appeal by special leave is whether the dismissal in
limine of a Special Leave Petition filed before this Court by a party
challenging the award of a Labour Court would preclude the said party
from subsequently approaching the High Court under" Article 226 of
the Constitution seeking to set aside the said award.

c J:;laving regard to the nature of the question arising for determi-
nation, it is not necessary for us to set out in detail the facts of the case
and a brief narration thereof would suffice. Respondent No. 3 was
appointed in 1963 as a s·ales Officer in the service of the appellant-
The Indian Oil Corporation. He was dismissed from service in 1969 on
0 charges of misconduct but was subsequently reinstated under orders of
the Labour Court, Patna before which an industrial.dispute had been
raised. During the period when Respondent No. 4 was out of employ-
ment consequent on his dismissal, some of his juniors had been promo-
ted to higher posts. Subsequent to his reintstatement, Respondent
No. 3 claimed that he was entitled to be given promotion with effect
from the date on which his juniors were promoted and also to be given
E
the higher pay scale of Rs.1025-1625 from such date. This claim was
not accepted by the appellant and that again gave rise to another
industrial dispute. The State Government of Bihar referred the said
dispute to the Labour Court, Patna on September 26, 1980. The Lab-
out Court by its award dated March 11, 1983 held that Respondent No. '
F
3 was entitled to be paid salary in the scale of Rs.1025-1625 with effect
from December 30, 1970, that being the date on which his juniors were
promoted to that scale. It further directed that the 3rd Respondent
1
should be promoted from grade 'B' to grade 'C' and should also be
given the benefit of revision in the pay scales of those grades.

Aggrieved by the said award, the appellant moved this Court
G
under Article 136 of the Constitution by filing Special Leave Petition
No. 9147 of 1983. Respondent No. 3 had filed a caveat before this
Court and he was represented by Counsel at the time when the special
leave petition was heard. This Court on September 9, 1983 dismissed
the special leave petition by a non-speaking order, which was in the
H following terms:
INDIAN OIL CORPN LTD v. STATE OF BIHAR [ERADI, J.] 557

"The special leave petition is dismissed." A

Thereafter the appellant approached the High Court of Patna by
preferring a writ petition under Article 226 of the Constitution seeking
to quash the aforesaid award of the Labour Court dated March 11,
1983. The High Court by its order dated January 31, 1984 admitted the B
writ petition and ·granted interim stay of enforcement of the award.
Thereupon the 3rd Respondent came up to this Court challenging the
order of the High Court admitting the writ petition and granting in-
terim stay of the award. The principal contention taken in the special
leave petition was that in view of the order of this Court dated Septem-
ber 9, 1983 dismissing the special leave petition (S.L.P. No. 2770of1984)
filed by the appellant against the award of the Labour Court, it was not c
legally open to the appellant, thereafter, to approach to the High
Court under Article 226 of the Constitution challenging the very same
award. This Court after hearing both sides, dismissed the special leave
petition filed by the 3rd Respondent by the following order dated
August 17, 1984:- D
"Special Leave Petition is dismissed. We hope that the
High Court will dispose of the writ petition as expeditiously
as possible preferably within four months from today. In
the meantime the respondents will deposit in the High
Court a further sum of Rs.10,000 (apart from Rs.5,000
E
which has already been deposited towards the cost of the
petitioner) within two weeks from today, which amount the
petitioner will be at liberty to withdraw in case the Writ

~--
Petition will not be disposed of within four months from
today."
F
Subsequently, when the writ petition came up for final hearing
t_ before a Division Bench of the High Court, the 3rd Respondent again
urged the aforesaid contention as a preliminary objection to the
maintainability of the writ petition. That contention was upheld by the
Division Bench which took the view that the dismissal in /imine by this
Court of the special leave petition filed by the appellant against the
award by the non-speaking order reproduced above precluded the G
appellant from challenging the said award before the High Court un-
der Article 226 of the Constitution. In the opinion of the High Court
the doctrine of election was applicable to the case and the appellant
having chosen the remedy of approaching a superior Court and failed
in that attempt, he could not thereafter resort to the alternative re-
H
558 SUPREME COURT REPORTS 119861 3 S.C. R.

A medy of approaching the High Court for relief under Article 226 of the
Constitution. Another reason stated by the High Court is that the writ
jurisdiction of the High Court under Article 226 of the Constitution
being essentially discretionary in nature, it will be a sound exercise of
the Court's discretion to refuse relief in such a situation. On the basis
of the aforesaid reasoning the High Court dismissed the writ petition
B
filed by the appellant without going into the merits of the case. The
appellant challenges the correctness of the decision so rendered by the )I
High Court.

We are clearly of opinion that the view taken by the High Court
was not right and that the High Court should have gone into the merits
c of the writ petition without dismissing it on the preliminary ground. As
observed by this Court in Workmen of Cochin Port Trnst v. Board of
Trustees of the Cochin Port Trust and Another, [1978] 3 S.C.C. 119 the
effect of a non-speaking order of dismissal of a special leave petition
without anything more indicating the grounds or reasons of its dismis-
sal must, by necessary implication, be taken to be that this Court had
D
decided only that it was not a fit case where special leave should be
granted. This conclusion may have been.reached by this Court due to
several reasons. When the order passed by this Court was not a speak-
ing one, it is not correct to assume that this Court had necessarily
decided implicitly all the questions in relation to the merits of the
E
award, which ·was under challenge before this Court in the special leave ·•
petition. A writ proceeding is a wholly different and distinct proceed-
ing. Questions which can be said to have been decided by this Court
expressly, implicitly or even constructively while dismissing the special
leave petition cannot, of course, be re-opened in a subsequent writ
proceeding before the High Court. But neither on the principle of res
judicata nor on any principle of public policy analogous thereto, would
F the order of this Court dismissing the special leave petition operate to
bar the trial of identical issues in a separate proceeding namely, the
writ proceeding before the High Court merely on the baeis of an uncer-
tain assumption that the issue must have been decided by this Court at
least by implication. It is not correct or safe to extend the principle of
res judicata or constructive res judicata to such an extent so as to found
G it on mere guesswork.

This enunciation of the legal position has been reiterated by this
Court in Ahmedabad Manufacturing & Calico Printing Company Ltd.
v. Worf<men and Anr, [1981] 3 S.C.R. 213. The principles laid down in
the two decisions cited above fully govern the present case.
H
INDIAN OIL CORPN LTD v. STATE OF BIHAR [ERADI, J.l 559

It is not the policy of. this Court to entertain special leave peti- A
~ tions and grant leave under Article 136 of the Constitution save in
those cases where some substantial question of Jaw of general or public
importance is involved or there is manifest injustice resulting from the
impugned order or judgment. The dismissal of a special leave petition
in limine by a non-speaking order does not therefore justify any infer- B
ence that by necessary implication the contentions raised in the special
·leave petition on the merits of the case have been' rejected by this
){
Court. It may also be observed that having regard to the very fieavy

,,- backlog of work in this Court and the necessity to restrict the intake of
fresh cases by strictly following the criteria aforementioned, it has very
often been the practice of this Court not to grant special leave except
where the party cannot claim effective relief by approaching the con-
cemed High Court under Article 226 of the Constitution. In such cases
c
also the special leave petitions are quite often dismissed only by pas-
-_,,,.. sing a non~speaking order especially in view of the rulings already
given by this Court in the two decisions afore-cited, that such dismissal
of the special leave petition will not preclude the party from moving
D
the High Court for seeking relief under Article 226 of the Constitu-
tion. In such cases it would work extreme hardship and injustice if the
High Court were to close its doors to the petitioner and refuse him
relief under Article 226 of the Constitution on the sole ground of
dismissal of!'1e special leave petition.

"" In Wil<on v. Co/chester Justices, [1985]-Vol. 2-All England Law
Reports at page 97 the House of Lords had to consider the question
whether the refusal of leave to appeal by the Appeal Committee of the
E

House of Lords would constitute an implied approval of the decision
which had been unsuccessfully sought to be impugned. The following
+- observations of Lord Roskill are apposite in our present context:
F
.-1 "Seemingly the Divisional Court felt that this refusal indi-
cated at least implied approval of the decision which it
had been unsuccessfully sought to impugn. Counsel sur-
prised your Lordships by. saying that this impression was
widespread in the profession. My Lords, if that were so,
G
as my noble and learned friend Lord Diplock remarked
during the argument, the sooner this erroneous impres-
sion is emphatically corrected by your Lordships the bet-
~' ter. There are a multitude of reasons why, in a particular
case, leave to appel may be refused by an Appeal Com-
mittee. I shall not attempt to embark on an exhaustive list H
560 SUPREME COURT REPORTS 11986) 3 S.C.R.

A for it would be impossible to do so. One reason may be
that the particular case raises no question of general prin-
ciple but turns on its own facts. Another may be that the
facts of the particular case are not suitable as a foundation
for determining some question of general principle. Your
Lordships House is only able, in any given year, to hear
B
and determine a limited number of cases and it is impor-
tant for the evolution of the law as a whole that those
cases should be carefully chosen. Conversely the fact that
leave to appeal is given is not of itself an indication that
the judgments below are thought to be wrong. It may well
be that leave is given in order that the relevant law may be
c authoritatively restated in clearer terms. It is not difficult
to find in the books examples of cases where, after leave
to appeal has been refused in one case, another case will
later arise in which leave to appeal has been given as a
result of which the decision against which leave to appeal
was originally refused is shown to have been wrong. But
D that of itself does not mean that the initial refusal of leave
was wrong."

Thus the correct legal position is that the dismissal by this Court
of the Special Leave Petition No. 9147 of 1983 by the non-speaking
order of this Court dated September 9, 1983 did not operate as a bar
E against the appellant in the matter of challenging the impugned award
of the Labour Court by resort to proceedings before the High Court
under Article 226 of the Constitution.
The doctrine of election referred to by the High Court has no
application at all to the present situation and the decision in Shankar i
Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, [1970] 1 S.C.R. -
F
322 is clearly distinguishable. The question that arose in that case was 1
whether a paity who had a choice of resorting to one of two remedies
before the same Court namely, the High Court, could successively
move the High Court under Section 115 of the Civil Procedure Code
and again under Articles 226 and 227 of the Constitution. The question
was answered in the negative for the simple reason that the order
G passed by the High Court under the first proceeding would conclude
the matter inter-parties. In such,a situation the party had to exercise
his choice and elect which remedy he would resort to in the High
Court.

The grant of leave under Article 226 of the Constitution is un-
H
INDIAN OIL CORPN LTD v. STATE OF BIHAR [ERADI. J.] .. 561

-' doutbedly in the discretion of the High Court but the exercise of that \
discretionary jurisdiction is to be guided by established legal princi-
ples. It will not be a sound exercise of that discretion to refuse to
consider a writ petition on its merits solely on the ground ihat a special
leave petition filed by the petitioner in the Supreme Court had been
dismissed by a non-speaking order.
B
Apart from.the above, in the present case there is the additional
fact that after the writ petition was admitted by the High Court the 3rd
~espondent challenged the High Court's order admitting the writ peti-
tion and granting interim stay of the award by filing a special leave
petition in this Court. In that special leave petition the 3rd Respon-
dent had raised the very same objection concerning the maintainability c
of the writ petition in the light of the dismissal of the prior special leave
.petition filed by the appellant. This Court dismissed the special leave
petition and requested 'the High Court to dispose of the writ petition
within four months from the date of the order (17.8.1984). Obviously,
the intention of this Court in passing that order was that the writ
()
petition should be considered and disposed of by the High Court on
the merits within the said period. It is unfortunate that this order has
not been adverted to in the judgment of the High Court now under
appeal.

In the light of the aforesaid discussion, we allow this appeal, set
aside the order of High Court and remand the writ petition to the High E
Court for disposal on the merits. Having regard to the facuhat the
case concerns the service benefits claimed by the 3rd Respondent, the
High Court is requested kl dispose of the ·writ petition as early as
possible. The parties will bear their respective costs.

F
M.L.A. Appeal allowed.