-

WORKMEN OF COCHIN PORT TRUST

vi

!)fl

BOARD OF TRUSTEES OF THE COCHIN PORT TRUST & ANR.

May 5, 1978

[N. L. UNTWALIA, JASWANT SINGH AND R. S. PATHAK, JJ.]

A

R(!s judicofa, applicability of-Special Leave Petition under Art. 136 of the B

Constitution challenging the Award of the Labour Court was dis111issed witho11t

giving any reason-Whether the dismissal c1 the special lea1·e petition bars

the filing of a fresh Writ Petition, on alinost all Rrounds, in the Hfr:d1 Court

undcl' Art. 226-Cii·il Procedure Cede (Act 5, 1908, S. 11)-Application of

"' principle of res judicata, explained.

•

)

Out of 17 categories of Junior Executives in the Traffic Department of the

respondent Port Trust, except categories XVI-Labour Supervisors Grade~ll

and categories XVII-Markers/Sorters /Checkers rest were on non~roster sys­

tem. When the workmen belonging to the non-roster were asked to v,1ork

on a Sunday they \Vere given a cfay off on any other working day and were

also paid half an extra day's wages. On the other hand \Vorkmen belonging

to categories XVI and XVII had been put on roster system. under \Vhich

whenever they were made to work on a Sunday on rotation, they were given

another day off in a week but they were not paid extra wages for half a

day

as

\Vere given to the non-roster workn1en. An Industrial dispute was

therefore raised in the forn1 viz., "Whether the demand for changing the

Roster off system to giving Sundays· off as the weekly day rest in respect ot

Grade-JI Supervisors, and Markers, Sorters and Checkers is justified ?'' The

Industrial Tribunal decided the reference in favour of the workmen. The

employer, thereafter, filed a special leave petition No.· 451 of 1970 in this

Court to challenge the award of the Tribunal, but the same was dism.issed

on

18-3-70, after perusal of the papers and hearing the

·counsel. As no.

reason for dismissal was given in the order, the respondent emf1loyers, filed'

a writ petition in the High Court on 28-3-70. The High Court kllowed thd

writ petition and quashe.d the Award of the Tribunal. The High Court was.

of the view that : (1) ,.there was no unfair discrimination adopted by the·

Management. While the"non-roster staff were given half-a-day's additional'

wages as also compensating holiday for working on their· weekly holiday, the

roster. staff were paid one -day's additional V.'ages as also compensating holiday·

for working on their v;eekly holiday, the only difference .being that while

~unday is always the weekly holiday for the non-roster staff the weekly holi­

day for the roster staff chan&es once in every three months according 10 the

Toster; (2) as the question of wages was not referred to the Tribunal, its

Award was clearly in excess

of jurisdiction; and (3) dismissal of the special

leave petition by the Supreme Court did not operate

as

Tes judicata· in the

entertainment of the writ petition.

, Dismissing the appeal by certificate, the Court

HELD : (I) The Judgment of the High Court is correct and suotaihabk in

law. [976 H]

c

D

F

" (2) The scope of the proceeding under Art. 136 is wider, than that of

a writ petition., .The dismissal of a special leave petition under Art 136 does G

not nc1tessarily bar the entertainment of a writ petition under Art. 226. The

effect-of non-speaking order of dismissal without anything more indicating

the grounds

or reasons of its dismissal must by necessary implication be

taken to have decided that

it

was not a fit case where special leave should

be granted.

It

may, be due to several-reasons. It may be one or more.

It may also be that the merits of the award were taken into consideration ..

and this Court felt that it did not require any interference. But since the

order

is not a

!peaking order it is difficult to accept the ·argument that it must

.be deemed to have necessarily decided implicitly all the· questions in relation H

. to. the.: n1ctits of the a\vard. Whatever can be held to h<•ve been decided

.express.ly,. implicitly or even constructively while dismissing the special leave

petition cannot be reopened. [977 E-G]

E

G

H

972 SUPREME COURT REPORTS [ 1978] 3 s.c.R.

State of U.P. v. Nawab Hussai11, [19771 3 S.C.R. 428 applied; Ma11a.reme11t

of Western I1ulia Match Co. Ltd., Madras v. The Industrial Tribunal, Matlras

& Anr., AIR 1958 Mad. 398; S.J. Emn1atty, Proprietor Jai Hind Motor Service

Ernakulam v. Venkitaswa1ni Haridas Naiduar & Ors., AIR 1959 Kerata 291;

Haridas Ma/kar & Ors. v. Jay E11gi11eering Works, [19751 2 LL.J.26; expl~ined

and differed from; Bansi & Anr. vs. Additional Director, Consolidation Of

Holdings, Rohtak & Ors., AIR 1967 Pb. 28 approved.

(3) But, dismissal of a writ petition in limine by a non-speaking order,

even

with one word order

"dismissed" could certainly create a bar in· the

entertainment of another writ petition filed by the same party as the same

cause

of action as it must necessarily be taken to have decided

impliedly

that this is not a fit one for exercise of the writ jurisdiction of the High

Court. If the writ petition is dismissed after contest by a speaking order

obviously it will operate as res judicata in any other proceedings, such as of

suit, Art. 32 or Art. 136 directed from the same order or decision. If the

writ petition

is dismissed by a speaking order either at the threshold or after contest, say, only on the ground of ]aches or the availability of an alterWiative

remedy, then another remedy open in law either by way of suit or other

proceedings obviously will not be barred on the principle of res judic«"ta. A

second writ petition on the same cause of action either filed

in

tile same

High Court or in another v.

1ill not be maintainable because the dismissal· of

one petition will operate as a bar in the entertainment of another writ peti­

ti011. [978 A-C, 979 Bl

D"ryao & Ors., v. The State of U.P. & Ors. [1962] I SCR 574; P. D. Sharma

v. State Ba11k of India, [1968] 3 SCR 91, referred to.

( 4) The doctrine of res judicata codified in s. 11 of the Code of Civil

Procedure is not exhaustive. Principles of not only of direct res jruiicata,

but of constructive res j11dic(_JJa engrafted in Explanation JV to s. 11 are

applied

in many other situations, besides civil suits. If by any judgment or

order any n1atter in issue has been directly and explicitly decided the decision

operates as res judicata and bars the trial of an identical issue in a

subsequent

proceeding between the same parties. The principle of res judicata also

comes into play when by the judgment and order

a decision of a particular

issue

is

itnp\icit in it, that is it must be deemed to have been necessarily

decided by implication; then also the principle

of res judicata on that issue

is directly applicable. When any matter which might and ought to have been

made a ground of defence

or attack in a former proceeding but was not

ISO

made, then such a matter in the eye of law, ~o avoid multiplicity of litiga~

tion and to bring about finality in it is deemed to have been constructively in

issue and. therefore, is t?Jken as decided. [977 A~D]

(5) The technical rule of res j11dicata, although a wholesome rule based

on public policy cannot be stretched too far to

bar the trial of identical

issues in a separate proceeding merely

on

an uncertain assumption that the -·~

issues must have been decided. It is not safe to extend the principle of ,..,.__

res judicata to such _ an extent so as to found it in a mere guess work. In

the instant case, the Award of the Tribunal no doubt was challenged in the

special leave petition filed in this Court on almost all gro.unds which were

•

~

l.

in the subsequent proceedings agitated in the High Court, and -there is no •

question of applying the principles of constructive res judicata. [977 D, G~H]

(6) The relief granted by the Tribunal was beyond the scope of the

reference :

[981

,F]

(a) The Tribunal did not find that the roster system was not necessary

for the successful working of the port work. No discrimination could. be

found in tho roster off system as such: [981 A-Bl

(b) The error of law apparent on the face of the Award was that if the

Roster off system was· necessary for the supervisory staff and the porterage

labour, then the Roster category of workmen was a class by itse1f and

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WORKMEN v. COCHIN PORT TRUSTEES (Untwalia, J.) 973

equaU.g such workmen with other categories o~ the workmen who ?'er~ •ery

A

seldom required to work on Sundays was obviously a wrong application of

the principles of discrimination. In substance and in effect the Award went

beyeJ'Ml the scope of reference although in form in which the final order was

made it did not do so; [981 B-CJ

(c) The Tribunal exceeded its jurisdiction in saying that categories XVI

and VU of the workmen could always be made to work on · Sundays but

they s11ould be. given half day's wage_s besides a day off for workini on B

Sundays. This is an entirely different kind of relief which the Tribunal

purported to grant, and it was not within the terms of reference; ·and [981 C-D]

'

(d) On the findings of the Tribunal the point of reference· ought to have

'

been answered by saying merely that the demand for changing the Roster-

'

off system in respect of the two categories of the workmen was justified or

-

not justified; [982 DJ

• CIVIL APPELLATE JURISDICTION : Civil Ai;peal No. 462 of 1971 . c

•

From the Judgment and Order dated the 4th September, 1970 of

the Kerala High Court in Original Petition No. 1902 of 1970 .

• T. S. Krishnamoorthy, N. Sudhakaran and Krishna Pillai for the

Appellant.

G. B. Pai, 0. C. Mathur, K. J. John and P. K. Kurian for Respon-

D

dent No. 1.

K. Ram Kumar and P. K. Pillai for Intervener (Cochin Port Porter-

age staff Assn.).

Ex-parte for respondent No.

2.

The Judgment of the Court was delivered by

E

UNTIV ALIA, J. This appeal by certificate from the judgment and

order of the Kerala High Court has been preferred by the workmen

•

of the Cochin Port Trust. The employers are the Board of Trustees

of the Cochin Port Trust, respondent no. 1 (hereinafter to be ref.erred

to as the respondent). An industrial dispute between the appellants

F

and the respondent was referred by the Central Government to Central

/4

Government Industrial Tribunal No. 2, respondent no. 2. The Tri-

bunal gave an award in favour of the workmen but it has been set

aside by the High Court

on the application of the respondent filed

under Artide 226 of the Constitution of India . •

According to the Union which represented the appellant-workmen,

G

the Traffic Department of the· Port Trust is comprised of and assisted

by several categories of junior executives for the day

to day perform-

ance of the

shift work of the Cochin Port. Out of the seventeen cate~

gories of such junior executives, the first fifteen enumerated in the

award from the statement of claim of the Union get Sunday off as

a weekly holiday. When the workmen ont of the said categories are

asked and made to work

on a

Sunday, they are given a day off on any

other working day and are also paid extra half day's wages. On

H

the other hand category xvi-"Labour Supervisors Grade II" and

category xvii-"Markers/Sorters/Checkers" have been put on roster

97 4 SUPREME COURT REPORTS [1978) 3 S.C.R.

A · elf system, that is to say, these two categories of workmen are made

to work on Sundays by rotation and get another day off in the week

but they do not get extra wages for half a day as are given to the other

fifteen categories.

On the raising of an industrial dispute, it

w<Is Te­

ferred to the Tribunal in the following terms :-

B

c

D

E

F

G

H

"Wl\ether the demand for changing the "roster off"

system to giving Sunday off as the weekly day of rest in

respect of Gr.

II

sup~rvisors and Markers, Sorters and Check­

ers, is justified ?"

The Tribunal decided the reference in favour of the workmen. On

behalf of the employers, the Port Trnst, the stand taken was that work

in the Port has got to be carried on all the days of the week including

Sunday as the cargo has got to be loaded and unloaded in and from

the ship on every

day of the week. Porterage labour i.e. Porters and

others has got to be engaged on each day of the week to do the said

work. The roster off categories

of workers are, therefore, necessary

to be engaged by rotation on Sundays also. They have to work in

batches

on the roster off system changeable in three months. Jn

other words, some

of the roster off category of workmen roughly

speaking

I/3rd of the total number of 152 get

Sunday off in a parti­

cular period of three months and the rest get a weekly day off

on some

other day of the week. After three months, another batch is given Sunday off, and so on and so forth, by rotation. Very few workmen

out of tbe total of about 650 of the non-roster off categories are requir­

ed

to work on

Sundays as it is generally not necessary to engage them

on Sundays for the Port work. Their nature of work is such that

ordinarily and generally they get Sunday off. If, however, some of

them are asked to work on a Sunday, then they get a day off on any

other

day of the week and are paid half a day's extra wages also. In

the case of the roster off workmen it: also sometime happens that even

on their weekly holiday in a particular period of three months, they are

asked to work. In that event, they are not only given a day off on

another day of the week but

an extra wage for full one day is paid to

them.

Oral an<l documentary evidence was adduced by the parties before

the Tribunal. The stand taken on behalf of the employers was that

if the roster off system was not continued the work in the Cochin Port

of loading and unloading of cargo will get dislocated if not altogether

stopped.

The employers have got the right to arrange and carry

<?n

their affairs in the best interests of the industry. By putting certam

categories

of workmen on the roster off system, no discrimination is

shown to them. While the stand

taken on behalf of tlie workmen

was

that there would be no dislocation or stoppage of work even if t!:e roster off system is discontinued because the two categories of

workmen working on this system can always be booked for working

on Sundays on terms made available to the similar kind of workmen

in. the other categories. Since in their case it is not so done, they are

debarred

of their half day's extra wages and thus are unjustly discri­mii:atcd.

)

/

t

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•

•

•

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•

WORKMEN v. COCHIN PORT TRUSTEES (Untwalia, J.) 975

The Tribunal formulated the points of decision in the following

terms:-

" ( i) Whether Roster off system in respect of Grade II

Supervisors and Markers/Sorters/Checkers should

be dlscontinued ?

A

(ii) Whether Grade II Supervisors and Markers/Sorters/ B

Checkers should be given half day's additional wages

and another day off, for working on Sunday ?

(iii) Whether the demand of these employees is justified?

The

findings of the Tribunal are :-

( i)

"If other Supervisory staff i.e. categories of workers

1 to

15 mentioned in Ex. 1/W is not on Roster

off

system why should Grade II snpervisors (Category

No. 16) and Markers/Sorters/Checkers (Category

No. 17) be only on Roster off system. If they only

are continued

on Roster

off system, it would amount

to unfair discrimination."

(2) "It is true that this staff gets one day off according

to tum

for working on

Sunday but they do not get

half day's additional

wages for working on Sunday. On the other band, the other supervisory staff, if

booked for work

on Sunday, get additional half day's

wages and some other day off. To this extent there

is discrimination in respect of Grade II Supervisors

and Markers/Sorters/Checkers

who belong to Super­

visory

cadre."

(3) The Port Trust did not adduce any documentary

evidence to

show that the Supervisory staff in similar

industries

is put on Roster off system although the

Deputy

Traffic Manager examined on behalf of the

Trust said

so in his oral evidence.

( 4)

"I am of the view that Roster off system of Grade II

Supervisors and Markers/Sorters/Checkers should be

discontinued that they should be

given additional half

day's

wages and other day off for working on Sun­

days and that their demand for discontinuing the

Roster

off system is just and fair. The same deserves

to be accepted.

The

employers had filed special leave petition No. 451 of 1970 in this

Court to challenge the award of the Tribunal but the same was dismiss­

e~ on 18-3-1970 after perusal of the papers and hearing the counsel.

As nsual no reason for dismissal was given in the order. The

employers, thereafter,

filed a Writ

Petition in the Court on March 28,

1970. This has been allowed and the award has been quashed. The

High Court has

given the view :-

c

D

E

F

G

H

976

B

c

D

SUPREME COURT REPORTS [1978] 3 s.c.Jt.

( 1) "The evidence on both sides is that while the roster

staff work at tbe same strength oil Sundays as on

week days, so far as the non-roster staff are concern­

ed, only a skeleton staff work on Sundays. That be­

ing so, we fail to see how any unfair discrimination

is involved in giving Sunday as the weekly holiday

for the non-roster staff and one day of the week by

rotation as the weekly holiday for the roster staff.

How the work of an establishment is to be carried

out, how the holidays are to

be fixed, are essentially

for the management to determine and interference

is

permissible only if this power is exercised in an un­

reasonable or unfair manner."

(2) "That Tribunal also seems to have forgotten that

while the non-roster staff are given half-a-day's

additional wages as also a compensating holiday for

working on their weekly holiday, the roster staff are

paid one day's additional wages as also a compen­

sating holiday for working on their weekly noliday.

The only difference is that while Sunday is always

the weekly holiday for the non-roster staff, the weekly

holiday for the roster staff changes once in every three

months according to the roster."

(3) "This is, in effect, retaining the roster system for

the weekly day

off and compelling the

Port to pay

additional wages for working on Sundays.

The

ques­

tion of wages was not referred to the Tribunal and

its award ~eems to be clearly in excess of jurisdic­

tion."

( 4) Dismissal of the special leave petition by the Supreme

Court did not operate as res iudicata in the enter­

tainment of the Writ Petition.

F Mr. T. S. Krishnamurthy appearing in support of the appeal sub-

H

mitted:-

( 1) That the High Court has erroneously over-ruled the

point of

res iud;cata urged on behalf of the appel­

lants.

(2) That the

award of the Tribunal was just, proper and

valid.

It was neither beyond the scope of the

refer­

ence nor did it suffer from any infirmity of law

apparent on the face of the record to enable the High

Court to upset it in exercise of its writ jurisdiction

under Article 226 of the Constitution.

In our opinion, none of

the contentions raised on behalf of the

itppellants is correct and fit to be accepted. Mr. G. B. Pai appearing

for the respondent rightly pointed out that the judgment of the High

Court

is correct and sustainable in law.

,_

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. ---

-WORKMEN v. COCHIN PORT TRUSTEES (Untwalia, /.) 977

It· is well-known that the doctrine of res judicdta is codified in

•ection 11 of the Code of Civil Procedure but it is not exhaustive.

Section

11 generally comes into

play in relation to civil suits. But

apart from· the codified law the doctrine of

res judicata or the principle

of

res judicata has been applied since long in various other kinds of

proceedings and situations by Courts in England, India and other

countries.

__ The rule of constructive res judicata is engrafted in

Expla­

nation IV, of section 11 of the Code of Civil Procedure and in many

other situations also principles not only of direct

res judicata but of -constructive ,res judicata are also applied. If by any judgment or

order anir matter in issue has been directly and. explicity decided the

decision operates as res judicata and bars the trial of an identical issue

in a sub,;equent proceeding between tbe same parties. The principle

of

res

jmlicata also comes into play when by the judgment and order

a decisiorr of a particular issue is implicit in it, that is, it must be

· deemed to have been necessarily decided by implication; then also

the principle of

res judicata on that issue is directly_ applicable. When

any matter which might and ought to have been made

a· ground of

defence

<tr attack in a former proceeding but was not so made, then

such a matter in the eye

0£ law, to avoid multiplicity_ of litigation and

to bring about finality in it is deemed to have been constructively in

issue and, therefore, is taken as decided.

In

th1: instant case the award of the Tribunal, no doubt, was chal­

lenged in the special leave petition filed in this Court, on almostall

grounds which were in the ~ubsequent writ proceeding agitated in the

High Court. There is no -question, therefore, of applying the -prin­

ciples of constructive res judicata in this case. What is, however, to

be seen i:; whether from the order dismissing the special leave petition

in Iimine it can be inferred that all the matters_ agitated in the said

-petition 'Vere either explicitly or implicitly decided against the res­

pondent. Indisputably nothing was expressly decided. The effect of

a non-speaking order of dismissal without anything more indicating

the grounds or reasons of its dismissal must. by necessary implication,

be taken to have decided that it was not a fit case wher~ special leave

should

be_ granted. It may be due to several

reasons. It may be

one er more. It may also be that the merits of the award were ta1Cen

into consideration and this Court felt that it did not require any interfer­

ence. But since the order is not a speaking order, one finds it diffi-

cult to accept the argument put forward on behalf of the appellants

that it must be deemed to have necessarily decided implicitly all the

questions in relation to the merits of the award. A writ proceeding

is a different proceeding. Whatever can be held to have been decided

expressly, implicitly

or even constructively while dismissing the special

leave petition cannot be re-opened.

~ But the technical rule of res

judicata,

although a wholesome rule based upon public policy, cannot

B

c

D

E

F

G

be stretched too far to bar the trial of identical issues in a separate

have been decided.

It is not safe to extend the principle of res judicata

--H

to such an extent so as to found it on mere guess work. To illustrate

our view point, weJ may take an example. ·Suppose a writ petition is

filed in a High Court for grant of a writ of Certiorari to challenge

A

B

c

D

E

F

G

H

978

SUPR:iME COURT REPORTS [1978] 3 S.C.R.

some order or decision on several grounds. If the Writ Petition is

dismissed after contest by a speaking order obviously it will operate

as

res judicata in any other proceeding, such as, of suit, Article 32-or

Article 136 directed from the same order or decision.

If the Writ

Petition is dismissed by a speaking order either at the threshold or

after contest, say, only on the ground of !aches or the availability

of

an alternative remedy, then another remedy open in law

either by way

of suit or any other proceeding obviously will not be barred on the

principle

of res judicata.

Of course, a second writ petition on the

same cause of action either filed in the same High Court or in another

will not be maintainable because the dismissal of one petition will

operate as a

bar in the entertainment of another writ petition. Similarly

even

if one writ petition is dismissed in

limine by a non-speaking one

word order 'dismissed', another writ petition would not be maintain­

able because even the one word order, as

we have indicated above,

must necessarily be taken to have decided impliedly that the case is

not a

fit one for exercise of the writ jurisdiction of the High Court.

Another writ petition from the same order or decision

will not lie.

But the position is substantially different when a writ petition

is dis­

missed either at the threshhold or after contest without expressing any

opinion on the

merits· of the matter, then no merit can be deemed to

have been necessarily and impliedly decided and any other remedy

of suit or other proceeding

will not be barred on the principle of res

judicata.

There are several decisions of this Court dealing with the doctrine

and principles

of res judicata. We may refer to only a few. In

Daryao

and others v. The State of U.P. and othersC

1

)

Gajendragadkar

J., delivering the judgment of this Court elaborately discussed the rule

of

res judicata and ultimately held that where the High Court dismisses

a writ petition after hearing the matter on the

m~rits on the ground that

no fundamental right was proved or contravened a subsequent peti­

tion to the Supreme Court under Article 32 on the same facts and

for the same reliefs filed by the same party would be barred by the

general principles of

res judicata. At page 591 says the learned

Judge:- "In such a case the point to consider always would be

what

is the nature of the decision pronounced by a Court

of competent jurisdiction and what

is

_its effect."

This passage lends snpport to the principles of res judicata enunciated

by us above.

In Daryao's case

"(supra) the conclusions are stated at

page 592. Two situations, namely, (1) disposal of the writ applica­

tion on merits and

(2) its

dismiss_al not on merits but on the ground

of !aches of the party or the availability of

an alternative remedy,

enabled us to

state what we have said above. The dismissal of a writ

petition

in limine with a reasoned order may or may not constitute

a

It will depend upon the nature of the order.

"If the petition

is dismissed in limine", says the learned Judge, "without passing a

(1) [1962] I S.CR. 574.

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WORKMEN v. COCHIN PORT TRUSTEES (Untwalia, J.) 979

speaking order then such dismissal cannot be treated as creating a

bar of

res judicata. It is true that prima facie, dismissal in limine

evea without passing a speaking order in that behalf may strongly

suggest that the Court took the view that there

was no substance in

the petition at all; but in

the absence of a speaking order it would

not be easy to decide what factors weighed in the mind of the Court

and that makes it difficult and unsafe to hold that such a summary

dismissal is a dismissal on merits and as such constitutes a bar of res

judicata

against a similar petition filed under Art.

32." We have

thought it proper to elucidate

this aspect of the matter a bit further

to indicate that dismissal of a writ petition

in

limine by a non speak-

ing order could certainly create a bar in the entertainment of another

writ petition

filed by the same party on the same cause of action.

A

B

This decision was followed in

P. D. Sharma v. State Bank of C

India(') wherein it was held that the summary dismissal of a writ

petition under Article 226 challenging the order of the Labour Court

was no bar .to the. entertainment of an appeal under Article 136 from

the same order

of the Labour Court. Hcgde J has stated at page

94

thus:-"From the order of the High Court it is not possible to D

find out the reason or reasons that persuaded it to reject the

appellant's petition.

An appeal under Art. 136 against an

order can succeed even if no case is made out to issue a writ

of certiorari."

Mr. Krishnamurthy rightly pointed out that the lines extracted

above

indicate that the scope of the proceeding under Art. 136 was wider

than that

of

a writ petition. But he was not right in saying that dis­

missal of a special leave petition under Art. 1

36 must

necessarily. bar

the entertainment of a writ petition under Art. 226. In a recent dcc;­

sion of

this Court in State of

Uttar Pradesh v. Nawah Hussain(')

Shinghal J., delivering the judgment on behalf of the Court applied

the principles of constructive

res judicata and held that a suit to chal­

lenge the order of dismissal from service after dismissal

o( the writ

petition on merits

was not maintainable although a new ground of

attack

was made out in the suit which

had not been taken in the writ

petition. This

was so on the application of the principle of construc­

tive

res judicata. It will be useful to quote a passage from page 431

which runs

as follows :-

"Reference in this connection may ~ made to Ex Parle

Thompson-6 Q.B. 720. There A. J. Stephens moved for

a rule calling upon the authorities concerned to

show cause

why a

mandamus should not issue. He obtained a rule

nisi, but it was discharged as it did not appear that there had

been a demand

and a refusal. He applied again saying that

there had been a demand and a refusal since then. Lord

Denman C.J., observed that

as

Stephens was making an

(I) [1968] 3 S.C.R. 91.

(2) [1977] 3 S.C.R. 428.

E

F

G

H

A

B

c

D

E

F

G

980 SUPREME COURT REPORTS [1978] 3 S.C.R.

application which had already been refused, on fresh mate­

rials, he could

not have

"the same application repeated from

time to time" as they had "often refused rules" on that

ground. The same view has been taken in England in res­

pect of renewed petition for

certiorari, quo warranto

and

prohibition, and, as we shall show, that is also the position in

this country."

The above passage amply supports the view expressed by us above.

We have thought it proper to give some additional reasons to cull out

the identical principle.

We may now advert very briefly to some of the decisions of the

High Court cited at the Bar.

In The Management of Western India

Match Co. Ltd., Madras

v. The Industrial Tribunal, Madras

·and

mwther(

1

)

it was pointed out, at page 403 but in our opinion, in some

what too broad a term that

:-

"The right to apply for leave to appeal to the Supreme

Court under Art. 136 of the Constitution if it could be called

a "right" at all cannot be equated to a right to appeal.

Obviously a High

Court cannot refuse to entertain an appli­

cation under Art. 226 of the Constitution

on the ground

that the aggrieved party could move the Supreme Court

under Art.

136 of the Constitution. That the Supreme

Court declined to exercise its discretion in favour of the

petitioner by granting the leave asked for cannot,

in our

opinion, affect the jurisdiction vested in the High Court under

Art. 226 of the Constitution."

The law so broadly stated is not quite accurate although substan­

tially

it is correct to the extent we have pointed out above. A learned

single Judge of the Kerala High Court followed the aforesaid

Bench

decision of the Madras High Court in

S. I. Emmatty, Proprietor Jai

Hind Motor Service, Ernaku/am

v. Venkitaswami Naidu and others(

2

)

Jn Bansi

and another v. Additional Director, Co11so/idatio11 of Hold­

ings, Rohtak and others(') it was held that when a petition under

Art. 226 of

the Constitution bas been dismissed in limine, it cannot

agaiu

be revived by the same petitioner by another petition on subs­

tantially the same allegations.

It has further been rightly pointed

out that such a dismissal

in limine not on merits but for !aches or on

the ground of availability of alternative remedy does not bar a second

petition under

Art. 32, and we may add, any other proceeding avail­

able in

Jaw. For the reasons stated in our judgment, we approve of

this decision.

The appellants placed reliance upou the decision of

the Calcutta High

Court iu Haridas Malakar and others v. Jay Engi­

neering Works(

4

) wherein following the decision of the Madras High

Court in the case of Western India Match Co. the learned Judge has

said at page 29 that be respectfully agreed with the view of the Iearn-

H

(I) A.l.R. 1958, Madras, 398.

(2) A.l.R. 1959, Kerala 291.

(3) A.l.R. 1967, Punjab, 28.

(4) [1975] 2 Labour Law Journal, 26.

;

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•

. -

•

'

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•

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WORKMEN v. COCHIN PORT TRUSTEES (Untwalia, J.) 981

eel Judges of the Madras High Court. We have already pointed out

the inaccuracy

in the broad statement of the law in the Madras

deci­

sion. In any event it does not help the appellants at all.

A

Coming to the merits of the award made by the Tribunal it would

suffice to point out that the Tribunal did not fiud that Roster off sys­

tem was not necessary for the successful working of the Port work as

deposed to by the Deputy Traffic 'Manager of tbe Port Trust. No

discrimination could

be found in the Roster off system as such. It

was found in the matter of non-payment of extra half a day's wages.

The error of law apparent on the face of the award was that if Roster

off system was necessary

for the Supervisory staff and the porterage

' labour, then the Roster category of the workmen was a class by itself

If-and equating such workmen with other categories of the workmen

who were very seldom required

to work on Sundays was obviously a

wrong application of the principles

of discrimination. In substance

and in effect the award went beyond the scope of reference although

in form

in which the final order was made it did not do so. The

Tribunal exceeded its jurisdiction in saying that categories xvi and xvii

of the workmen could be always made to work on Sundays but they

should be given additional

half day's wages besides a day off for

working on Sundays. This is an entirely different kind of relief which

the Tribunal purported to grant.

It was not within the terms of the

reference.

On the findings of the Tribunal the point of reference

ought to have been answered by saying merely that the demand for

changing the Roster off system in respect of the two categories of the

workmen was justified or not justified. We would, however, like

to

observe that it may be open to the workmen to raise an industrial

dis­

pute demanding half day's extra wages on account of their being asked

to work on Sundays on the basis of the Roster off system. Even

though the system may not be unjustified, yet it may be possible for

the workmen to press and justify their demand of extra half day's

wages. Giving them one day's full wages when, per chance, they are

asked to work on their off day may not be a compensation fit

to be

equated with the said demand. This

is not a matter on which we are

called upon

to express any opinion as to whether such a demand would

be justified

or not or whether it should be acceeded to. But what we

lAo. want to emphasize here is that the relief granted by the Tribunal was

, ,..,.,.. beyond the scope of the referenec. ,

For the reasons stated above, we dismiss this appeal but in the

circumstances make no order

as to costs.

S.R.

•

1

Appeal dismissed,

I

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