LexWORKMEN OF COCHIN PORT TRUST versus BOARD OF TRUSTEES OF THE COCHIN PORT TRUST & ANR.
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- 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
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