: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2670 OF 2008 Dalal Brothers Freight Forwarders Private Limited, A Private Limited Company incorporated under the Companies Act, 1956 having it’s Registered Office at 14, Krishna Niwas, 2nd Floor, 281, Shahid Bhagat Singh Road, Fort, Mumbai-400 001. ....Petitioner V/s. 1) The Transport And Dock Workers Union on behalf of its members Kiritkumar M. Gandhi, Suresh Jadhav and Narendra U. Mehta having is office at P.D’Mello Bhavan, P. D’Mello Road, Carnac Bunder, Mumbai-400 038. 2) The Hon’ble Presiding Officer, Central Government Industrial Tribunal No.2, Shramaraksha Bhavan, Shiv Shrishti Road, Sion, Mumbai-400 022. 3) The Regional Labour Commissioner, Central Government Industrial Tribunal No.2, Shramaraksha Bhavan, Shiv Shrishti Road, Sion, Mumbai-400 022. ....Respondents Mr.J.P. Cama, Senior Counsel with Mr.Rohan Cama and Mr.Yusuf Iqbal i/b Yusuf & Associates for the Petitioner. Mr.S.M. Dharap with Mr.Neel Helekar for the Respondents. CORAM : S.J. VAZIFDAR, J. DATED : 10TH FEBRUARY, 2009. ORAL JUDGMENT :- 1. The Writ Petition is allowed to be amended in : 2 : terms of the draft tendered in Court and marked "X". The amendments to be carried out within two weeks from today. 2. Even assuming that I have the jurisdiction to entertain this Writ Petition, I am not inclined to exercise any discretion under Article 226 of the Constitution of India. 3(A). Admittedly, Writ Petition No.2070 of 2007 identical to this Writ Petition was filed by the same Petitioner in this Court. (B). By an order dated 1.10.2007, the learned Judge directed the Petitioner to deposit 50% of back wages as per the order impugned in the Writ Petition, failing which the Petition was directed to stand dismissed for non-prosecution without further reference to the Court. By an order dated 29.10.2007, the time to deposit the said amount was extended upto 19.11.2007. (C). The Petitioner challenged the said orders by filing Appeal No.8 of 2008 (The appeal was lodged on 14.11.2007 but numbered only later). There was no stay to the order dated 1.10.2007 in the said appeal. : 3 : (D). During the pendency of the Appeal, the Writ Petition itself came up for final hearing. By an order dated 19.11.2007, the learned Judge held that on account of non-compliance of the conditional order dated 1.10.2007, the Petition stood dismissed. (E). Appeal No.8 of 2008 was disposed of by an order dated 5.5.2008. The Division Bench dismissed the Appeal as the Writ Petition itself stood dismissed as held in the said order dated 17.11.2007 and the Appeal was filed from the earlier interim orders dated 1.10.2007 and 29.10.2007. 4. The Petitioner thereafter challenged the said order dated 17.11.2007 by filing Appeal No.279 of 2008. The appeal was dismissed by an order dated 8.7.2008 on the ground that the Petitioner had failed to comply with the order dated 1.10.2007 read with the order dated 29.10.2007. 5. Having failed in the said Writ Petition at every stage, the Petitioner has filed this Writ Petition which admittedly is identical in every respect. 6. Mr.Cama submitted that the conditional order in the earlier Writ Petition could not be complied : 4 : with as the Petitioner was at that time facing financial difficulties. He submitted that the earlier Writ Petition and the orders passed therein do not bar the jurisdiction of this Court to try this Writ Petition. 7. Mr.Cama, submitted that an application for extension of time to deposit the amount had in fact been made when the order dated 19.11.2007 was passed. The order however does not record the same. Mr.Cama submits that the Petitioner is now ready to comply with the order dated 1.10.2007 by furnishing a bank guarantee or furnishing any other security to the satisfaction of the Prothonotary and Senior Master. Any application for the same ought to be made in that Writ Petition and certainly not in this fresh Writ Petition. 8. The Petitioner cannot be permitted to overcome the consequence of non-compliance of an order by filing another Writ Petition. An exercise of discretion on the part of this Court to entertain a fresh Writ Petition in these circumstances would, apart from anything else indicate a disregard for the orders of a Court of co-ordinate jurisdiction. In the present case, even the Division Bench had confirmed the dismissal of the Writ Petition on that ground. : 5 : . Exercise of discretion in the Petitioner’s favour in these circumstances would lead to a logical absurdity if for instance an order similar to the one dated 1.10.2007 were to be passed again in this Writ Petition and the Petitioner fails to deposit the amount leading to the dismissal of the Writ Petition, the Petitioner could file yet another Writ Petition. This could go on ad-infinitum. 9. Mr.Cama relied upon a judgment of this Court in the case of Air Corporations Employees Union & Anr. v. D.C. Vyas & Ors, AIR 1962, BOM. 274. Paragraph 34 reads as under :- "34. There is no substance in the second objection, as the petition which was filed on the original side was not dismissed on merits. Permission was sought for the withdrawal of that petition in view of the note recorded by the Law Minister on the 1st September, 1960 and the petition was eventually dismissed for non-prosecution on the 7th September. The earlier petition not having been decided on merits, the dismissal thereof cannot operate a bar to the present petition." . In this case, the Petition was dismissed for non-prosecution on the application for withdrawal made in view of the note recorded by the Law Minister. In the present case, it is not so. The learned Judge who passed the order dated 1.10.2007 placed a condition : 6 : and provided the consequence of the non-compliance thereof. 10. Mr.Cama, then relied upon the judgment of the Supreme Court in the case of B. Prabhakar Rao & Ors. v. State of Andhra Pradesh & Co. 1985 Supp(1) SCC 432. Paragraph 29 of the judgment of Chinnappa Reddy, J. was relied upon. An earlier Writ Petition was dismissed in limine and not in the circumstances in which the present Writ Petition was dismissed. It is also not clear whether the earlier Writ Petition was filed by the same Petitioner. It is pertinent to note further that it was specifically observed that such a dismissal may inhibit the discretion of the Court though it would not bar the jurisdiction of the Court. As I stated earlier, in view of the facts of the present case, I am not even inclined to exercise my discretion assuming that I have the jurisdiction to entertain the Writ Petition. . Mr.Cama then relied upon paragraphs 6 and 7 of the judgment of Khalid, J. It is pertinent to note that His Lordship expressly stated in paragraph 7 that the important facts in that case had persuaded him to agree with the main judgment and to err on the side of justice more than that of law, invoking the benevolent jurisdiction under Article 142(1) of the Constitution : 7 : of India. The High Court does not have power under Article 142. 11. In the circumstances, the Writ Petition is dismissed with costs fixed at Rs.3000/- to be paid within four weeks from today.