TMI Blog1981 (3) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... kmen 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 the 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. 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 the same: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awn. 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 Palse s 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 appeal :(1) Whether 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 ? 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to withdraw the leave petition should be read as it is and that so read the order only means that the Company had withdrawn the leave petition.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 constructively while dismissing the special leave petition cannot be re-opened. But the technical rule of res judicata, 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 on mere guesswork.... If the writ petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyer and there is no decision on it on merits, it is difficult to see how it can be said that the approval has been refused by the Tribunal. The Tribunal having had no occasion to consider the application on merits there can be no question of the Tribunal refusing approval to the employer. It cannot be said that where the application for approval is withdrawn, there is a decision by the Tribunal to refuse to lift the ban. The withdrawal of the application for approval stands on the same footing as if no application under section 33 (2) (b) has been made at all. In Hoshnak Singh v. Union of India Ors. an earlier petition was dismissed by a non-speaking one word order dismissed . A second petition after pursuing the alternative remedy was filed. A question arose whether the same would be barred by the principles analogous to res judicata. This Court held that the second petition would not be so barred because the cause of action was entirely different and the dismissal could not stand in the way of the petitioner invoking the jurisdiction of the High Court under Article 226 of the Constitution. Reliance was next placed on Daryao Ors. v. The State of U.P. Ors. In that ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssistance in solving the problem before us. In Vasant Vithal Palse s 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 present 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. 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 Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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