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TMI Blog1978 (5) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... ia. 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 holiday. When the workmen out 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 the other hand category xvi-- Labour Supervisors Grade II and category xvii- Markers/Sorters/Checkers have been put on roster 97 4 off 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 discriminated. 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 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 mentioned in Ex. 1/W is not on Roster off system why should Grade II supervisors (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 turn for working on Sunday but they do not get half day's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 question of wages was not referred to the Tribunal and its award seems to be clearly in excess of jurisdiction. (4) Dismissal of the special leave petition by the Supreme Court did not operate as res judicata in the entertainment of the Writ Petition. Mr. T. S. Krishnamurthy appearing in support of the appeal submitted :- (1) That the High Court has erroneously over-ruled the point of res judicata 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 pointe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 reopened. But the technical rule of res judicata, although a wholesome rule based upon public policy, cannot 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 to such an extent so as to found it on mere, guess work. To illustrate our view point, we) may take an example. Suppose a writ petition is filed in a High Court for grant of a writ of Certiorari to challenge some order or decision on several 'grounds. If the Writ Petition is dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at is its effect. This passage lends support 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 application on merits and (2) its dismissal not on merits but on the ground of Laches 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterials, 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 view expressed by us above. We, have thought it proper to give some additional reasons to cuff 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 another A.I.R. 1958, Madras, 398 it was pointed out, at page 403 but in our opinion, in somewhat 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dispute 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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