Case: Ahmedabad Manufacturing &amp; Calico Printing Co. Ltd Vs. Workmen &amp; Anr

Court that the order dismissing the writ petition as withdrawn could not constitute a bar of res judicata.13. 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explicit or implicit and that it can be shown from the circumstances of the present case that the leave petition was withdrawn only after full arguments when t he appellant found that this Court was not favourably inclined to grant it. In 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. In that case the respondent first filed a revision under section 115 of the Code of Civil Procedure. The revision was, however, dismissed. Thereupon the respondent moved a petition under Articles 226 and 227 of the Constitution challenging the same order of the appellate court. The High Court held that in spite of the dismissal of the revision petition, it could interfere under Articles 226 and 227 of the Constitution on a proper case being made out. This Court, however, reversed the 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 petition ought not to have been entertained by the High Court when the 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 the same order of the subordinate court. The facts of that case are materially different from those of the case in hand and that case is not of much assistance in solving the problem before us.In Vasant Vithal Palses 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 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: (1) 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 distinguishable on facts, firstly because there is no concealment of facts in the pr esent case, and, secondly, the Supreme Court in that case had dismissed the application for special leave. In the case 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 limine.14. 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 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."15. 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 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 jurisdiction of the High Court under Article 226 of the Constitution and the High Court in its discretion chose to dismiss the writ petition in limine 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 Allisons case has lost its efficacy.In the Management of Western India Match Co. Ltd., Madras v. The Industrial Tribunal, Madras &Anr., the Supreme Court had declined to exercise its discretion in favour of the petitioner by granting leave under 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 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 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),16. After having analysed the various cases cited, we are of the view that permission to withdraw a leave petition cannot be equated with an order of its dismissal. We also come to the conclusion 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 unconditionally.17.

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

Explanation:
1[ds]It was contended for the appellant that the order of this Court permitting the appellant to withdraw the leave petition should be read as it is and that so read the order only means that the Company had withdrawn the leave petition. It was urged that 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 le ave petition on the ground that this Court was not favourably inclined to grant it or that the Company chose to avail of a better remedy before the High Court under Article 226 of the Constitution, which had a widerHigh Court held that in spite of the dismissal of the revision petition, it could interfere under Articles 226 and 227 of the Constitution on a proper case being made out. This Court, however, reversed the 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 petition ought not to have been entertained by the High Court when the 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 the same order of the subordinate court. The facts of that case are materially different from those of the case in hand and that case is not of much assistance in solving the problem before us.In Vasant Vithal Palses 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 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: (1) 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 distinguishable on facts, firstly because there is no concealment of facts in the pr esent case, and, secondly, the Supreme Court in that case had dismissed the application for special leave. In the case 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 inis no quarrel with the proposition that a writ of certiorari is not issued as a matter of course and that the petitioner has to 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 jurisdiction of the High Court under Article 226 of the Constitution and the High Court in its discretion chose to dismiss the writ petition in limine 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 Allisons case has lost itshaving analysed the various cases cited, we are of the view that permission to withdraw a leave petition cannot be equated with an order of its dismissal. We also come to the conclusion 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 withdrawnthat case the respondent first filed a revision under section 115 of the Code of Civil Procedure. The revision was, however, dismissed. Thereupon the respondent moved a petition under Articles 226 and 227 of the Constitution challenging the same order of the appellate court.The High Courtheld that in spite of the dismissal of the revision petition, it could interfere under Articles 226 and 227 of the Constitution on a proper case being made out. This Court, however, reversed the 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 petition ought not to have been entertained by the High Court when the 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 the same order of the subordinate court. The facts of that case are materially different from those of the case in hand and that case is not of much assistance in solving the problem before us.In Vasant Vithal Palses 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 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: (1) 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 distinguishable on facts, firstly because there is no concealment of facts in the pr esent case, and, secondly, the Supreme Court in that case had dismissed the application for special leave. In the case 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 inCourt dealing with the writ of certiorari observed aswrit of certiorari cannot be issued as a matter of course.The High Courtis entitled to refuse the writ if it is satisfied that there was no failure of justice. The Supreme 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.s no quarrel with the proposition that a writ of certiorari is not issued as a matter of course and that the petitioner has to 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 jurisdiction of the High Court under Article 226 of the Constitution and the High Court in its discretion chose to dismiss the writ petition in limine 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 Allisons case has lost itsefficacy.In the Management of Western India Match Co. Ltd., Madras v. The Industrial Tribunal, Madras &Anr., the Supreme Court had declined to exercise its discretion in favour of the petitioner by granting leave under 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 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 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 Trustng analysed the various cases cited, we are of the view that permission to withdraw a leave petition cannot be equated with an order of its dismissal. We also come to the conclusion 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