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

2. The appellant is the Ahmedabad Manufacturing and Calico Printing Company Ltd., hereinafter referred to as the Company. It is predominantly ar 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 seveneteen demands raised by the workmen through their unions and on April 12, 1965 the said demands were referred to the Industrial Tribunal under Section 10(2) of the Industrial Disputes Act, 1947, being Ref. (IT) No. 135 of 1965. Before the Tribunal respondents No. 1 who are the workmen were represented by one R.J. Mehta, President of the concerned trade union. The Tribunal took up for consideration 4 demands, viz., demand Nos. 1, 2, 15 and 16 respectively for basic wages and adjustment, dearness allowance, gratuity and retrospective effect of these demands. On November 30, 1971, the Tribunal signed its award and sent a copy thereof to the parties. It was published on January 20, 1972 in the Maharashtra Government Gazette. In the meanwhile, however, on January 19, 1972 the Company filed in the Supreme Court a petition for special leave to appeal under Article 136 against the award and also filed an application for interim stay of the award. On February 1, 1972 the special leave petition and the application for interim stay came up for hearing when the Supreme Court granted an ad, interim stay of the award pending admission of the petition and directed the Company to give notice to respondents No. 1s union. The said union appeared and an affidavit in reply was filed on its behalf in the last week of March 1972. On May 5, 1972 the notice of admission came up for hearing before the Supreme Court when respondents No. 1 appeared through their counsel, and the matter was adjourned till after summer vacation and an interim order was passed by consent for payment of certain amounts per month to the workmen. On August 21, 1972, the petition came up for hearing when respondents No. 1 were also present through their counsel. After some arguments on the merits when it appeared from the observations made by their Lordships that the Court was not inclined to exercise its powers to grant leave to appeal the counsel for the Company sought leave to withdraw the petition. The Supreme Court granted such leave. The order runs:Upon hearing counsel the Court allowed the special leave petition to be withdrawnFour days later, i.e., on August 25, 1972, the Company filed the present petition under Article 226 for setting aside the award on the same grounds. Respondents No. 1 appeared and the said R.J. Mehta filed on their behalf an affidavit in reply dated October 11, 1972 showing cause why the petition should not be granted. On behalf of the Company an affidavit in rejoinder wag filed by one R.C. Trivedi on October 16, 19723. The petition came up for hearing before Mr. Justice Kania when three preliminary objections were raised on behalf of respondents No. 1. In this appeal we are concerned with the first objection only, namely, whether in view of the, special leave petition under Article 136 having been unconditionally withdrawn by the Company, the Court should not exercise its discretion under Article 226 in entertaining the petition but should dismiss the same in limine. Now, the learned Judge determined from the respective affidavits of the parties the circumstances in which the Company unconditionally withdrew its leave application and in view of the same he equated the position arising there from as if its (Companys) petition for special leave has been dismissed by their Lordships of the Supreme Court without a speaking order; he also took into account the fact that the present petition raised the same contentions as were raised in the special leave petition and following a Division Bench decision of this Court in Vasant Vithal False v. Indian Hume Pipe Co. Ltd. [1970] 2 L.L.J. 328. held that in the circumstances of the case it was not a fit case for exercise of Courts discretionary power to grant the writ, and therefore, dismissed the petition in limine. This appeal by the Company is directed against the said order.

Reasoning: 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.