# [1978] 3 S.C.R. 971

- **Citation:** [1978] 3 S.C.R. 971
- **Court:** Supreme Court of India
- **Decided:** 1978-05-05
- **Case number:** special leave petition No.· 451 of 1970
- **Bench:** N. L. Untwalia, Jaswant Singh, R. S. Pathak
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1978-3-s-c-r-971-7474
- **Pages:** 11

## Headnote

A
R(!s judicofa, applicability of-Special Leave Petition under Art. 136 of the
B
Constitution challenging the Award of the Labour Court was dis111issed witho11t
giving any reason-Whether the dismissal c1 the special lea1·e petition bars
the filing of a fresh Writ Petition, on alinost all Rrounds, in the Hfr:d1 Court
undcl' Art. 226-Cii·il Procedure Cede (Act 5, 1908, S. 11)-Application of
"'
principle of res judicata, explained.
•
)
Out of 17 categories of Junior Executives in the Traffic Department of the
respondent Port Trust, except categories XVI-Labour Supervisors
Grade~ll
and categories XVII-Markers/Sorters /Checkers rest were on non~roster system.
When the workmen belonging to the non-roster were asked to v,1ork
on a Sunday they \Vere given a cfay off on any other working day and were
also paid half an extra day's wages.
On the other hand \Vorkmen
belonging
to categories XVI and XVII had
been put on roster system. under
\Vhich
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 \Vere given to the non-roster workn1en.
An Industrial
dispute
was
therefore raised in the forn1 viz., "Whether the demand for
changing the
Roster off system to giving Sundays· off as the weekly day rest in respect ot
Grade-JI 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 dism.issed
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 emf1loyers, filed'
a writ petition in the High Court on 28-3-70. The High Court kllowed thd
writ petition and quashe.d the Award of the Tribunal.
The High Court was.
of the view that : (1) ,.there 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 V.'ages as also compensating holiday·
for working on their v;eekly holiday, the only difference .being that while
~unday is always the weekly holiday for the non-roster staff the weekly holiday for the roster staff chan&es once in every three months according
10 the
Toster;
(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 Tes judicata· in the
entertainment of the writ petition.
, Dismissing the appeal by certificate, the Court
HELD : (I) The Judgment of the High Court is correct and suotaihabk in
law. [976 H]
c
D
F
"
(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
G
not nc1tessarily 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 !peaking order it is difficult to accept the ·argument that it must
.be deemed to have necessarily decided implicitly all the· questions in relation
H
. to. the.: n1ctits of the a\vard.
Whatever can be held to
h<•ve
been
decided
.express.ly,. implicitly or even constructively while dismissing the special leave
petition cannot be reopened.
[977 E-G]
E
G
H
972
SUPREME COURT REPORTS
[ 1978] 3 s.c.R.
State of U.P. v. Nawab Hussai11, [19771 3

## Text

-
WORKMEN OF COCHIN PORT TRUST
vi
!)fl
BOARD OF TRUSTEES OF THE COCHIN PORT TRUST & ANR.
May 5, 1978
[N. L. UNTWALIA, JASWANT SINGH AND R. S. PATHAK, JJ.]
A
R(!s judicofa, applicability of-Special Leave Petition under Art. 136 of the
B
Constitution challenging the Award of the Labour Court was dis111issed witho11t
giving any reason-Whether the dismissal c1 the special lea1·e petition bars
the filing of a fresh Writ Petition, on alinost all Rrounds, in the Hfr:d1 Court
undcl' Art. 226-Cii·il Procedure Cede (Act 5, 1908, S. 11)-Application of
"'
principle of res judicata, explained.
•
)
Out of 17 categories of Junior Executives in the Traffic Department of the
respondent Port Trust, except categories XVI-Labour Supervisors
Grade~ll
and categories XVII-Markers/Sorters /Checkers rest were on non~roster system.
When the workmen belonging to the non-roster were asked to v,1ork
on a Sunday they \Vere given a cfay off on any other working day and were
also paid half an extra day's wages.
On the other hand \Vorkmen
belonging
to categories XVI and XVII had
been put on roster system. under
\Vhich
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 \Vere given to the non-roster workn1en.
An Industrial
dispute
was
therefore raised in the forn1 viz., "Whether the demand for
changing the
Roster off system to giving Sundays· off as the weekly day rest in respect ot
Grade-JI 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 dism.issed
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 emf1loyers, filed'
a writ petition in the High Court on 28-3-70. The High Court kllowed thd
writ petition and quashe.d the Award of the Tribunal.
The High Court was.
of the view that : (1) ,.there 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 V.'ages as also compensating holiday·
for working on their v;eekly holiday, the only difference .being that while
~unday is always the weekly holiday for the non-roster staff the weekly holiday for the roster staff chan&es once in every three months according
10 the
Toster;
(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 Tes judicata· in the
entertainment of the writ petition.
, Dismissing the appeal by certificate, the Court
HELD : (I) The Judgment of the High Court is correct and suotaihabk in
law. [976 H]
c
D
F
"
(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
G
not nc1tessarily 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 !peaking order it is difficult to accept the ·argument that it must
.be deemed to have necessarily decided implicitly all the· questions in relation
H
. to. the.: n1ctits of the a\vard.
Whatever can be held to
h<•ve
been
decided
.express.ly,. implicitly or even constructively while dismissing the special leave
petition cannot be reopened.
[977 E-G]
E
G
H
972
SUPREME COURT REPORTS
[ 1978] 3 s.c.R.
State of U.P. v. Nawab Hussai11, [19771 3 S.C.R. 428 applied; Ma11a.reme11t
of Western I1ulia Match Co. Ltd., Madras v. The Industrial Tribunal, Matlras
& Anr., AIR 1958 Mad. 398; S.J. Emn1atty, Proprietor Jai Hind Motor Service
Ernakulam v. Venkitaswa1ni Haridas Naiduar & Ors., AIR 1959 Kerata 291;
Haridas Ma/kar & Ors. v. Jay E11gi11eering Works, [19751 2 LL.J.26; expl~ined
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 ]aches or the availability of an alterWiative
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 judic«"ta.
A
second writ petition on the same cause of action either filed in tile same
High Court or in another v.1ill not be maintainable because the dismissal· of
one petition will operate as a bar in the entertainment of another writ petiti011.
[978 A-C, 979 Bl
D"ryao & Ors., v. The State of U.P. & Ors. [1962] I SCR 574; P. D. Sharma
v. State Ba11k 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 jruiicata,
but of constructive res j11dic(_JJa engrafted in Explanation JV to
s. 11
are
applied in many other situations, besides civil suits.
If by any judgment or
order any n1atter 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 itnp\icit 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 ISO
made, then such a matter in the eye of law, ~o avoid multiplicity of litiga~
tion and to bring about finality in it is deemed to have been constructively in
issue and. therefore, is t?Jken as decided.
[977 A~D]
(5) The technical rule of res j11dicata, 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 gro.unds which were
•
~
l.
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 tho roster off system as such: [981 A-Bl
(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
porterage
labour, then the Roster category of workmen was
a
class by itse1f and
-
WORKMEN v. COCHIN PORT TRUSTEES (Untwalia, J.)
973
equaU.g such workmen with other categories o~ the workmen who ?'er~ •ery
A
seldom required to work on Sundays was obviously a wrong application of
the principles of discrimination.
In substance and in effect the
Award went
beyeJ'Ml the scope of reference although in form in which the final order was
made it did not do so; [981 B-CJ
(c) The Tribunal exceeded its jurisdiction in saying that categories XVI
and VU of the workmen could always be made to work on · Sundays but
they s11ould be. given half day's wage_s besides a day off for
workini on
B
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 DJ
•
CIVIL APPELLATE JURISDICTION : Civil Ai;peal No. 462 of 1971 . c
•
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, 0. C. Mathur, K. J. John and P. K. Kurian for ResponD
dent 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
E
UNTIV ALIA, 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 ref.erred
to as the respondent). An industrial dispute between the appellants
F
and the respondent was referred by the Central Government to Central
/4
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 Artide 226 of the Constitution of India .
•
According to the Union which represented the appellant-workmen,
G
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 cate~
gories 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 ont 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
H
the other hand category xvi-"Labour Supervisors Grade II" and
category xvii-"Markers/Sorters/Checkers" have been put on roster
97 4
SUPREME COURT REPORTS
[1978) 3 S.C.R.
A · elf 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 w<Is Teferred to the Tribunal in the following terms :-
B
c
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F
G
H
"Wl\ether the demand for changing the
"roster
off"
system to giving Sunday off as the weekly day of rest in
respect of Gr. II sup~rvisors and Markers, Sorters and Checkers, is justified ?"
The Tribunal decided the reference in favour of the workmen.
On
behalf of the employers, the Port Trnst, 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 engaged by rotation on Sundays also.
They have to work in
batches on the roster off system changeable in
three
months.
Jn
other words, some of the roster off category of workmen
roughly
speaking I/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 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 tbe 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 an<l 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 <?n
their affairs in the best interests of the industry.
By putting certam
categories of workmen on the roster off system, no discrimination is
shown to them.
While the stand taken on behalf of tlie
workmen
was that there would be no dislocation or stoppage of work even if
t!:e 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 discrimii:atcd.
)
/ t -
•
•
•
•
'
•
-
•
WORKMEN v. COCHIN PORT TRUSTEES (Untwalia, J.)
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 dlscontinued ?
A
(ii) Whether Grade II Supervisors and Markers/Sorters/
B
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 snpervisors (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 tum for working on Sunday but they do not get
half day's additional wages for working on Sunday.
On the other band, 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."
(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 dismisse~ on 18-3-1970 after perusal of the papers and hearing the counsel.
As nsual 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 :-
c
D
E
F
G
H
976
B
c
D
SUPREME COURT REPORTS
[1978] 3 s.c.Jt.
( 1) "The evidence on both sides is that while the roster
staff work at tbe same strength oil 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 noliday.
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 ~eems to be clearly in excess of jurisdiction."
( 4) Dismissal of the special leave petition by the Supreme
Court did not operate as res iudicata in the entertainment of the Writ Petition.
F
Mr. T. S. Krishnamurthy appearing in support of the appeal subH
mitted:-
( 1) That the High Court has erroneously over-ruled the
point of res iud;cata 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 the
itppellants 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.
,_
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---.--.-,, '_,,,-·· -...
. ---
- WORKMEN v. COCHIN PORT TRUSTEES (Untwalia, /.)
977
It· is well-known that the doctrine of res judicdta is codified in
•ection 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 11 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 anir 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 sub,;equent proceeding between tbe same parties. The principle
of res jmlicata also comes into play when by the judgment and order
a decisiorr 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 <tr attack in a former proceeding but was not so made, then
such a matter in the eye 0£ 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 th1: instant case the award of the Tribunal, no doubt, was challenged in the special leave petition filed in this Court, on almostall
grounds which were in the ~ubsequent 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 i:; whether from the order dismissing the special leave petition
in Iimine it can be inferred that all the matters_ agitated in the said
- petition 'Vere 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 wher~ special leave
should be_ granted. It may be due to several reasons. It may be
one er more. It may also be that the merits of the award were ta1Cen
into consideration and this Court felt that it did not require any 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, implicitly 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 upon public policy, cannot
B
c
D
E
F
G
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 - -H
to such an extent so as to found it on mere guess work. To illustrate
our view point, weJ may take an example. ·Suppose a writ petition is
filed in a High Court for grant of a writ of Certiorari to challenge
A
B
c
D
E
F
G
H
978
SUPR:iME COURT REPORTS
[1978] 3 S.C.R.
some order or decision on several grounds. If the Writ Petition is
dismissed after contest by a speaking order obviously it 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 !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 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 threshhold 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 othersC1) 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 m~rits 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 snpport 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 dismiss_al not on merits but on the ground
of !aches 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] I S.CR. 574.
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WORKMEN v. COCHIN PORT TRUSTEES (Untwalia, J.)
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
evea 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 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.
A
B
This decision was followed in P. D. Sharma v. State Bank of
C
India(') 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.
Hcgde J has stated at page
94 thus:-
"From the order of the High Court it is not possible to
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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. 1 36 must necessarily. bar
the entertainment of a writ petition under Art. 226.
In a recent dcc;-
sion of this Court in State of Uttar
Pradesh v. Nawah
Hussain(')
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 o( 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 ~ made to Ex Parle
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
(I) [1968] 3 S.C.R. 91.
(2) [1977] 3 S.C.R. 428.
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SUPREME COURT REPORTS
[1978] 3 S.C.R.
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 cull out
the identical principle.
We may now advert very briefly to some of the decisions of the
High Court cited at the Bar. In The Management of Western India
Match Co. Ltd., Madras v. The Industrial Tribunal, Madras ·and
mwther(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, Ernaku/am v. Venkitaswami Naidu and others(2 )
Jn Bansi and another v. Additional Director, Co11so/idatio11 of Holdings, Rohtak and others(') it was held that when a petition under
Art. 226 of the Constitution bas been dismissed in limine, it cannot
agaiu 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 !aches 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 Jaw.
For the reasons stated in our judgment, we approve of
this decision.
The appellants placed reliance upou the decision of
the Calcutta High Court iu 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 be respectfully agreed with the view of the IearnH
(I) A.l.R. 1958, Madras, 398.
(2) A.l.R. 1959, Kerala 291.
(3) A.l.R. 1967, Punjab, 28.
(4) [1975] 2 Labour Law Journal, 26.
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WORKMEN v. COCHIN PORT TRUSTEES (Untwalia, J.)
981
eel 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.
A
Coming to the merits of the award made by the Tribunal it would
suffice to point out that the Tribunal did not fiud that Roster off system was not necessary for the successful working of the Port work as
deposed to by the Deputy Traffic 'Manager of tbe 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
Ifand 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.
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
lAo. want to emphasize here is that the relief granted by the Tribunal was
, ,..,.,.. beyond the scope of the referenec.
,
For the reasons stated above, we dismiss this appeal but in
the
circumstances make no order as to costs.
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Appeal dismissed,
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