Case: The Ahmedabad Manufacturers &amp; Calico Vs. The Workmen

Article 226 challenging the award without disclosing the fact that the earlier application for leave by the Trade Union was rejected. Mr. Justice Abhyankar who delivered the judgment held that the petitioners were guilty of suppressing the fact of the earlier application for special leave having been rejected by the Supreme Court. He further held following the Western India Match Co.s case that in view of the refusal by the Supreme Court to grant special leave it was not a case in which Court should be inclined to adjudicate the merits of the award but that in exercise of its discretion the Court should refuse to issue the writ. The Division Bench, therefore, dismissed the petition on both the above grounds. 17. In our opinion, the ratio of the Indian Hume Pipe Co.s case, so far as the exercise of discretionary power under Article 226 is concerned, is applicable to the facts of the present case and Kania J. was, with respect, right in considering himself bound by it. Mr. Sorabjee, however, has assailed this authority. He urges that the decision in this case was given per incuriam because the question was not raised whether the Court in exercise of its discretion should refuse the writ without going into the merits of the case, but it was assumed that the Court had such discretion. He pointed out that an authority will be binding on a point only if the point was raised and considered and relied upon a decision of this Court in Parappa Ningappa v. Mallappa Kallappa (1955) 58 Bom. L.R. 404, F.B. and an English case in Morelle Ld. v. Wakeling. [1955] L.R. 2 Q.B. 379, at p. 406 He also contended that the ratio of the decision in Western India Match Co. s case is erroneous as it does not take into account the position that though a refusal by the Supreme Court to grant leave under Article 136 does not operate as res judicata so far as a writ application under Article 226 is concerned, still the High Court in exercise of its discretionary power under Article 226 will refuse to issue the writ on that ground without going into the merits of the case. He next tried to argue that the attention of the Division Bench was not drawn to the Supreme Court eases cited above in regard to exercise of discretionary power where alternative remedy is available or gross delay occurs. 18. In our view, there is no force in the above contentions. The question whether in the exercise of its discretionary jurisdiction under Article 226 the Court should refuse to grant a writ without going into merits was specifically raised in India Hume Pipe Co.s case. A perusal of the judgment leaves no doubt on this point. In para. 3 of the judgment at p. 329 are set out the preliminary objections raised by the respondent-Company, including the following: that the petition was in any case no longer tenable in view of the highest Court in the land having refused to exercise its discretionary jurisdiction in entertaining an appeal against the award. Further in para, 6 Abhyankar J. observed (p. 330) : We also are unable to hold that we should entertain this petition now and adjtudicate it on merits when the Supreme Court has thought fit not to admit the petition for special leave-- HINDI 19. The learned Judge then proceeded to quote a passage from the above Madras case in regard to the propriety or desirability of entertaining the petition and concluded as follows (p. 331) : Thus, in our opinion, this is not a petition which could have been entertained or in any case these are not the circumstances in which we should be inclined to adjudicate on the merits of the award in view of the petition filed on behalf of the Union which represented the petitioners also was filed before the Supreme Court and was rejected. (HINDI) From the above passages it is quite clear that the question of exercise of discretionary power under Article 226 to refuse a writ without going into the merits was specifically raised and considered and was answered in the affirmative. It may be that in that case there was not as elaborate or as full an argument on the question as we had before us in the instant case. But this might have been due to the fact that in the Madras case which was followed by this Court, principle of natural justice was violated and the case called for issue of a writ of certiorari and yet the Court in the exercise of its discretion refused to quash the award on the sole ground that Companys application for special leave under Article 136 was rejected by the Supreme Court. In any case the fact that the matter was not fully argued does not affect the binding nature of the precedent provided the point was raised and decided by the Court. 20. Lastly, the ratio of eases relating to exercise of discretionary power in cases where alternative remedy exists or gross delay occurs is not binding in the present case where we have to consider the effect of rejection by the Supreme Court of an application for special leave as it involves different consideration of finality of litigation. It may be relevant here to point out that it is not always the case that before dismissing the writ petition in exercise of its discretionary jurisdiction under Article 226 the merits also must be considered; for instance the Court, in the exercise of its discretion will dismiss the writ petition in limine on ground of suppression of any fact relating to the petition without going into the merits of the case. 21. In our opinion, the decision in Indian Hume Pipe Co.s case was not given per incuriam and the same is binding upon us. We, therefore, hold that the learned Judge has properly exercised his discretion in refusing to issue the writ.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]10. Now, the first point about the competence of the Court to entertain the petition is admittedly raised by respondents No. 1 for the first time before us. Moreover, after hearing the parties we have come to the conclusion that the other point must be answered against the Company. We therefore do not consider it necessary to decide the first question and we express no opinion on the same17. In our opinion, the ratio of the Indian Hume Pipe Co.s case, so far as the exercise of discretionary power under Article 226 is concerned, is applicable to the facts of the present case and Kania J. was, with respect, right in considering himself bound by it. Mr. Sorabjee, however, has assailed this authority. He urges that the decision in this case was given per incuriam because the question was not raised whether the Court in exercise of its discretion should refuse the writ without going into the merits of the case, but it was assumed that the Court had such discretion. He pointed out that an authority will be binding on a point only if the point was raised and considered and relied upon a decision of this Court in Parappa Ningappa v. Mallappa Kallappa (1955) 58 Bom. L.R. 404, F.B. and an English case in Morelle Ld. v. Wakeling. [1955] L.R. 2 Q.B. 379, at p. 406 He also contended that the ratio of the decision in Western India Match Co. s case is erroneous as it does not take into account the position that though a refusal by the Supreme Court to grant leave under Article 136 does not operate as res judicata so far as a writ application under Article 226 is concerned, still the High Court in exercise of its discretionary power under Article 226 will refuse to issue the writ on that ground without going into the merits of the case. He next tried to argue that the attention of the Division Bench was not drawn to the Supreme Court eases cited above in regard to exercise of discretionary power where alternative remedy is available or gross delay occurs18. In our view, there is no force in the above contentions. The question whether in the exercise of its discretionary jurisdiction under Article 226 the Court should refuse to grant a writ without going into merits was specifically raised in India Hume Pipe Co.s case. A perusal of the judgment leaves no doubt on this point. In para. 3 of the judgment at p. 329 are set out the preliminary objections raised by the, including the following: that the petition was in any case no longer tenable in view of the highest Court in the land having refused to exercise its discretionary jurisdiction in entertaining an appeal against the award. Further in para, 6 Abhyankar J. observed (p. 330) :19. The learned Judge then proceeded to quote a passage from the above Madras case in regard to the propriety or desirability of entertaining the petition and concluded as follows (p. 331) :From the above passages it is quite clear that the question of exercise of discretionary power under Article 226 to refuse a writ without going into the merits was specifically raised and considered and was answered in the affirmative. It may be that in that case there was not as elaborate or as full an argument on the question as we had before us in the instant case. But this might have been due to the fact that in the Madras case which was followed by this Court, principle of natural justice was violated and the case called for issue of a writ of certiorari and yet the Court in the exercise of its discretion refused to quash the award on the sole ground that Companys application for special leave under Article 136 was rejected by the Supreme Court. In any case the fact that the matter was not fully argued does not affect the binding nature of the precedent provided the point was raised and decided by the Court20. Lastly, the ratio of eases relating to exercise of discretionary power in cases where alternative remedy exists or gross delay occurs is not binding in the present case where we have to consider the effect of rejection by the Supreme Court of an application for special leave as it involves different consideration of finality of litigation. It may be relevant here to point out that it is not always the case that before dismissing the writ petition in exercise of its discretionary jurisdiction under Article 226 the merits also must be considered; for instance the Court, in the exercise of its discretion will dismiss the writ petition in limine on ground of suppression of any fact relating to the petition without going into the merits of the case21. In our opinion, the decision in Indian Hume Pipe Co.s case was not given per incuriam and the same is binding upon us. We, therefore, hold that the learned Judge has properly exercised his discretion in refusing to issue the writ.