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

1. The present appeal by certificate is directed against t he judgment dated 4th of July, 1973 of the High Court of Bombay in a Letters Patent Appeal arising out of a petition under Article 226 of the Constitution.2. The facts leading up to this appeal lie in a narrow compass. TheAhmedabad Manufacturing and Calico Printing Co. Ltd. (hereinafter called thepredominantly a textile manufacturer but has also factories in Bombay manufacturing heavy chemicals and engages about 750 workmen in three such factories. A dispute arose between the Company and the said workmen in respect of seventeen demands raised by them through their union. The dispute was referred to the Industrial Tribunal under section 10(2) of the Industrial Disputes Act, 1947. Out of t he demands of the workmen the Tribunal took up for consideration only four demands, that is, demands Nos. 1, 2, 15 and 16 respectively for basic wages and adjustment, dearness allowance, gratuity and retrospective effect of the demands. The Tribunal gave its award on 30th of November 1971 and sent a copy thereof to the parties. The award was published on 20th of January, 1972 in the Maharashtra Government Gazette. Under the rules it was to be effective after one month of its publication in the Gazette.3. The Company, feeling aggrieved by the award, filed with this Court a petition for special leave to appeal under Article 136 of the Constitution (the leave petition, for short). Pursuant to a notice, the respondent union put in appearance and filed a counter affidavit. It appears that after some arguments the appellant chose to withdraw the leave petition. As much turns upon the order of this Court dated 21st of August, 1972 permitting withdrawal, it would be appropriate to quote thehearing counsel the Court allowed the special leave petition to be withdrawn.Four days thereafter the Company filed a petition under Article 226 of the Constitution before the High Court challenging the award. That petition was virtually based on the same facts and grounds as were taken in the leave petition before this Court. The respondent union appeared and filed a counter affidavit urging that the petition be dismissed in limine. A rejoinder affidavit was filed on behalf of the Company.5. On the date of hearing three preliminary objections were raised on behalf of the union respondent. In the present appeal we are, however, concerned only with one o f them, namely, that the High Court should not exercise discretion in granting relief to the Company under Article 226 of the Constitution, after the withdrawal of the leave position unconditionally.6. This objection prevailed with the Hi gh Court. The learned Single Judge determined the circumstances on the basis of the respective affidavits filed by the parties, in which the Company unconditionally withdrew its leave petition and in view of those circumstances he equated th e withdrawal of the leave petition with the dismissal of the same. Relying on Vasant Vithal Palse and Ors. v. The Indian Hume Pipe Co. Ltd. and Anr. he held that it was not a fit case for exercise of the Courts discretionary power to admit the writ petition and accordingly dismissed the same in limine.7. The Company filed a Letters Patent Appeal but the Division Bench dismissed the same and confirmed the order of the learned Single Judge. The preliminary objection which weighed with the High Court was repeated on behalf of the union respondent before the Division Bench in appeal with two contentions: (1) the unconditional withdrawal by the company of its leave petition in the circumstances found by the learned Single Judge is a bar to the competence of the Court to entertain the petition under Article 226 of the Constitution. In other words, the High Court has no jurisdiction to grant rule nisi under Article 226 in view of the withdrawal of the petition under A rticle 136 of the Constitution; (2) The learned Single Judge has rightly dismissed the petition in limine under Article 226 of the Constitution in the exercise of his discretion on the ground that the leave petition based on the same content ion was unconditionally withdrawn. Although the Division Bench discussed the first contention but refused to decide it as it was taken for the first time before it in appeal. The second contention was, however, accepted by the Division Bench. The High Court did not consider the other cases cited on behalf of the Company as it thought that the point in question was concluded by a Division Bench of that Court in Vasant Vithal Palses case (supra). The Company thereafter moved a petition under Article 133 of the Constitution for a certificate of fitness to appeal to the Supreme Court which was granted by the High Court and this is how the present appeal comes before us.Two questions arise for consideration in this appealWhether unconditional withdrawal of the leave petition would amount to its dismissal ?(2) If so, what would be its impact on the petition under article 226 of the Constitution?

Reasoning:
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