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1978 (5) TMI 120 - SUPREME COURT

1978 (5) TMI 120 - SUPREME COURT - 1978 AIR 1283, 1978 (3) SCR 971, 1978 (3) SCC 119 - Civil Appeal No. 462 of 1971 - Dated:- 5-5-1978 - UNTWALIA, N.L., SINGH, JASWANT AND PATHAK, R.S. T. S. Krishnamoorthy, N. Sudhakaran and Krishna Pillai for the Appellant. G. B. Pai, O. C. Mathur, K. J. John and P. K. Kurian for the Respondent. K. Ram Kumar and P. K. Pillai for the Intervener. JUDGMENT: The Judgment of the Court was delivered by UNTWALIA, J. This appeal by certificate from the judgment and ord .....

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cation of the respondent filed under Article 226 of the Constitution of India. According to the Union which represented the appellant- workmen, the Traffic Department of the Port Trust is comprised of and assisted by several categories of junior executives for the day to day performance of the shift work of the Cochin Port. Out of the seventeen categories 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 holid .....

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extra wages for half a day as are given to the other fifteen categories. On the raising of an industrial dispute, it Was referred to the Tribunal in the following terms :- "Whether the demand for changing the "roster off" system to giving Sunday off as the weekly day of rest in respect of Gr. II supervisors and Markers, Sorters and Checkers, is justified" The Tribunal decided the reference in favour of the workmen. On behalf of the employers, the Port Trust, the stand taken .....

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some of the roster off category of workmen roughly speaking 1/3rd of the total number of 152 get Sunday off in a particular 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 the total of about 650 of the non-roster off categories are required to work on Sundays as it is generally not necessary to engage them on Sundays for the Port work. Their .....

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day is paid to them. Oral and 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 on their affairs in the best interests of the industry. By putting certain categories of workmen on the roster off system, no discrimination i .....

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rmulated 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 discontinued ? (ii) Whether Grade II Supervisors and Markers/Sorters/ 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 me .....

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r 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 Supervisory 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 .....

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counsel. As. usual 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. lm15 (1) "The evidence on both sides is that while the roster staff work at the same strength on Sundays as on week days, so far as the non-roster staff are concerned, only a skeleton staff work on Sundays. That being so, we fail to see how any unfair, disc .....

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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 compensating holiday for working on their weekly holiday. 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 th .....

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urged on behalf of the appellants. (2) That the award of the Tribunal was just, proper and valid. It was neither beyond the scope of the reference 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 appellants is correct and fit to be accepted. Mr. G. B. Pai appearing for the respondent rightly .....

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ries. The rule of constructive res judicata is engrafted in Explanation IV of section 1 1 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 any 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 subsequent proceeding between the same parties. The principle of res judicata a .....

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emed to have been constructively in issue and, therefore, is taken as decided. 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 grounds which were in the subsequent writ proceeding agitated in the High Court. There is no question, therefore, of applying the principles of constructive res judicata in this case. What is, however, to be seen is whether from the order dismissing the special leave petition in lim .....

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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 speaking order, one finds it difficult 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 construc .....

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Certiorari to challenge some order or decision on several 'grounds. If the Writ Petition is dismissed after contest by a speaking order obviously if 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 laches or the availability of an alternative remedy, then another remedy open in la .....

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be maintainable 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 dismissed either at the threshold or after contest without expressing any opinion on the merits of the matter, then no merit can be deemed to .....

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smisses a writ petition after hearing the matter on the merits on the ground that no fundamental right was proved or contravened a subsequent petition 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 .....

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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 speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that prima facie, dismissal in limine even 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 wo .....

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etition filed by the same party on the same cause of action. This decision was followed in P. D. Sharma v. State Bank of India [1968] 3 S.C.R. 91, 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. Hegde J has stated at page 94 thus :- "From the order of the High Court it is not possible to find out the reason or r .....

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der Art. 226. In a recent decision of this Court in State of Uttar Pradesh v. Nawab Hussain [1977] 3 S.C.R. 428 Shinghal J., delivering the judgment on behalf of the Court applied the principles of constructive res judicata and held that a suit to challenge the order of dismissal from service after dismissal of 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 .....

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al since then. Lord Denman C.J., observed that as Stephens was making an application which had already been refused, on fresh materials, 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 respect 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 .....

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t 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 application 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 ves .....

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and others A.I.R. 1967, Punjab, 28 it was held that when a petition under Art. 226 of the Constitution has been dismissed in limine, it cannot again be revived by the same petitioner by another petition on substantially the same allegations. It has further been rightly pointed out that such a dismissal in limine not on merits but for laches 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 available in law. F .....

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the broad statement of the law in the Madras decision. In any event it does not help the appellants at all. Coming to the merits of the award made by the Tribunal it would suffice to point out that the Tribunal did not find that Roster off system was not necessary for the successful working of the Port work as deposed to by the Deputy Traffic Manager of the 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 .....

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