Holding

An intra‑court appeal is not maintainable when the impugned order is passed by a Single Judge exercising power of superintendence under Article 227, and the Division Bench’s direction to refund the VRS benefits is valid and confirmed.

Issues considered

Whether an intra‑court appeal is maintainable against an order passed by a Single Judge exercising supervisory jurisdiction under Article 227 of the Constitution.
Whether the Division Bench could validly direct employees to refund VRS benefits received.
Whether the claim petitions should be decided as preliminary (jurisdictional) issues.
Whether the withdrawal of earlier writ petitions bars the filing of fresh petitions (res judicata/abandonment).
Whether all issues in industrial adjudication must be tried together without separating preliminary issues.

Legislation cited

Code of Civil Procedure, 1908s. Order XIV Rule 2, s. Order XXI Rule 4
Letters Patent (Clause 15)
Madhya Pradesh Industrial Relations Act, 1960s. 31
Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005s. 2(1), s. 31

Subjects

Voluntary Retirement SchemeIntra‑court appealArticle 226Article 227Jurisdictional factPreliminary issueRes judicataAbandonmentLabour lawIndustrial RelationsSupreme CourtHigh Court

Judgment

(2008) 10 S.C.R. 243

).
RAMESH CHAND~A SANKLA ETC. A
V.
VIKRAM CEMENT ETC.
(Civil Appeal No. 4223 of 2008)
JULY 08, 2008
'
J )., B
[C.K. THAKKER AND D.K. JAIN, JJ.]

Madhya Pradesh Uchcha Nyayalya (Khand Nyayapeeth
ko Appeal) Adhiniyam 2005 - SS.2(1) & 31:Voluntary Retir~-
ment Scheme - Opted by employees - Benefit allegedly paid c
by Company - Some employees approaching Labour Court
for reinstatement on ground that they did not opt voluntarily
for retirement under the scheme - Labour Court directing
Company to file written statement to decide the case on mer-
its - Challenge to - Dismissed by Industrial Tribunal - Com-
--( D
pany praying Labour Court to frame certain additional issues
and hear them as preliminary issues - Additional issues
framed by Labour Court It, however held. Holding that it was
not appropriate to decide the issues as preliminary issues -
Rejected by the Tribunal- Challenge to - Dismissed by Single
Judge of High Court- Special Leave Petition - Dismissed by E
Supreme Court in view of enactment of 2005 Act providing for
filing of intra court appeal - Filing of intra Court appeal by the
i Company- Division Bench of High Court held that intra court
appeals not maintainable and directed employees in ques-
tion to return benefit received by them to Company - Appeal F
.~
~

filed by employees and cross appeal filed by Company- Held:
since order passed by Single Judge of High Court in exercise
of power of superintendence under Article 227 of the Consti-
tution, intra Court appeal would not be competent- It is settled
law that all issues arising in a suit/proceeding should be tried G
together, hence Court below have not committed any error of
jurisdiction in not deciding the issue as to maintainability of
" 'f petition as preliminary issue - Even in terms of amendment
made in CPC all the issues in a suit should be decided to-
243 H
244 SUPREME COURT REPORTS [2008] 10 S.C.R.

>...
A gether - Petition pending before the Labour Court - Present
proceedings are against interlocutory orders - Under the cir-
cumstances Supreme Court refrained from entering into a/le-
gations and counter a/legation - No infirmity found in the or-
der of the Division Bench of the High Court - Hence, con- /-
,,
B firmed - Labour Court directed to consider the matter on mer- ~

its - Constitution of India, 1950 - Articles, 136, 226 and 227 -
Code of Civil Procedure, 1908 with amending Act, 1976 -
Service Law - Voluntary Retirement Scheme.
Withdrawal of writ petition and filing of fresh petitions by >-
c Company - Effect of Held: Though in such cases, courts not
allowing the petitioner to reagitate the claim which was given
up by him earlier - However, in the instant case a composite ..
f

petition filed against several employees was withdrawn and
separate petitions were filed by the company as per direction F
D of the Registry of the High Court - Moreover, another petition ).-

filed against an employee on the same issue was alive and
not withdrawn - It shows that there was no intention of the Com-
pany to give up the matter
Jurisdictional fact - Meaning of - Discussed.
E ,,
Jurisdiction of High Court under Article 226 and 227 of
the Constitution - Discussed.
p
Jurisdiction of Supreme Court - Article 136 - Scope of
- Discussed.
"
F r- "•
Respondent-Company introduced a Voluntary Re-
tirement Scheme for its employees. The employees who
opted for voluntary retirement under the scheme have
been granted all the benefits by the Company under the
scheme and also made payment against stamped re-
G
ceipts. However, some of the employees approached
Labour Court by invoking s.31 of the Madhya Pradesh • -.<_'

Industrial Relation Act,
1960 on the grounds they had not opted for voiun- \.- .,_
H tary retirement but they were forced to accept some
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 245
CEMENT ETC.

amount. The Labour Court directed the Company to file A
written statement to decide the case on merits. The or-
der was challenged by the Company before the Indus-
trial Tribunal. The Tribunal dismissed the petition. The
Company then filed written statement before the Labour
Court requesting it to frame certain additional issues and B
to hear them as preliminary issues. Though the Labour
Court framed the issues, it dismissed the prayer to de-
cide the issues as preliminary issues without recording
evidence. Against the order of the Labour Court, the Com-
pany approached the Tribunal. The order of the Labour c
Court was affirmed by the Tribunal. Challenging the or-
der of the Tribunal the Company filed a writ petition. The
petition was dismtssed by a the Single Judge of the High
Court. The Company filed Special Leave Petition before
the Supreme Court. In the meantime Madhya Pradesh
0
Nyayalaya(Khand Nyaya Peeth Ko Appeal) Adhiniyam,
2005 came into force providing for filing of intra court
appeal. This Court dismissed the Special Leave Petition
with liberty to the Company to approach the High Court
in terms of provisions under 2005 Act. The Company filed
an intra Court appeal before the High Court which was E
dismissed by the Division Bench of the High Court di-
recting the employees in question to return the benefit
received by them to· the Company subject to an under-
taking by the company that in the event labour court al-
lows the claim, the amount would be returned to employ- F
ees with interest@ 6% per annum. Against the order of
the Division Bench of the High Court a review petition
was filed by the employees. The petition WC'S dismissed
by the High Court. Hence the present appeals filed by the
employees and Cross appeal filed by the Company. G
,.> • It was contended by the workmen that the order
passed by the Division Bench of the High Court was with-
out jurisdiction so far as it directed the workmen to re-
fund the amount received by them; that once the Divi-
H
246 SUPREME COURT REPORTS [2008] 10 S . C.R.
J.. f·
A sion Bench of the High Court held that intra court appeals
were not maintainable, it has no power to pass any order
directing a party to do or not to do something; that once
it was the case of the workmen that they had not accepted
the scheme voluntarily, they were deemed to be contin- ,. ~

B ued in employment and they would be entitled to receive
wages. But they were not even allowed to join duty and
to do work. No payment of wages had been made to them
by the Company. The Company, for that reason also, can- .
not ask for repayment of amount paid to them. At the most,
c the said amount can be adjusted towards payment of
wages; and that, the writ petition filed by the Company t
was later withdrawn. No express liberty was granted by I·
the High Court to file fresh petition on the same cause of
action. However, fresh petitions were filed by the Com-
pany. Such petitions were not maintainable and ought not
D
to have been entertained by a Single Judge of the High
Court. They were barred by the doctrine of constructive
res judicata as also on the ground of abandonment of
claim.

E It was submitted by the Company that the Division
Bench of the High Court was not right in not entertaining,
dealing with and deciding intra court appeals on the
ground _that such appeals were not maintainable; that the
Division Bench of the High Court was required to apply )""
...
F its mind independently and to consider the nature of con-
troversy raised before the Single Judge. And if it finds
that the petition was that under Article 226 of the Consti-
tution, the Division Bench was enjoined to entertain in-
tra-court appeals and to decide them on merits that even
if the Division Bench felt that the writ petitions were un-
G
der both the Articles, viz. Article 226 and Article 227 of the
""'~
~
Constitution, as per settled law, no party can be deprived ;
of right of intra court appeal merely by referring Article
227 of the Constitution, over and above Article 226 of the j:...
Constitution under which such right is available to the
H
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 247
CEMENT ETC.

party; that an objection as to non-maintainability of writ A
petitions on the ground of constructive res judicatalaban-
donment of claim is not well-founded; that the Labour
Court, Industrial Court and the Single Judge of the High
Court were in error in not deciding the issue as to main-
~ tainability of claims as preliminary issue; that the schem.e B
was introduced by the Company, it was accepted by the
workmen and payment was made to them. Once these
facts are admitted, there remained no relationship of mas-
ter and servant between the Company and the workmen;
that it is not even the case of the workmen that they have c
not been paid. In view of these facts, the Company was
right in requesting the Labour Court to decide that the
question whether claim petitions filed by the workmen,
were maintainable; that since the question was pure ques-
tion of law, it did not require investigation of facts. The
D
issue, therefore .. ought to have been heard as preliminary
issue; that the fact whether the claimants were workmen
or not was a 'jurisdictional' fact. The Labour Court was
having 'limited jurisdiction' under the Act. It was, there-
fore, obligatory on the Labour Court to decide whether
the jurisdictional or preliminary fact which could confer E
jurisdiction on the court was present, by not doing so, it
had committed jurisdictional error which was required to
be corrected by the High Court in certiorari-jurisdiction.
. ""(
But the High Court also committed the same error. Under
the circumstances, this Court may interfere with the said F
order by directing the Labour Court to decide the issues
as preliminary issues; and that even if intra court appeals
are held not maintainable, the Company is before this
Court under Article 136 of the Constitution, therefore, ap-·
propriate order may be made by the Court. G
f. Disposing of the appeals, the Court
Held: 1.1. Bare reading of sub-section (1) of Section
... 2 of the Madhya Pradesh Uchcha N.yayalaya(Khand
' Nyayapeeth ko Appeal) Adhiniyam, 2005 Act, leaves no H
248 . SUPREME COURT REPORTS [2008] 10 S.C.R.

A room for doubt that if the order is passed by a Single
Judge of the High Court in exercise of original jurisdic-
tion under Article 226 of the Constitution, an intra court
appeal would lie. If, on the other hand, a Single Judge
exercises power of superintendence under Article 227 of
'
B the Constitution, intra court appeal would not be compe- "'
tent. Precisely, this was the position under different Let'."
ters Patents. [Para 24,25,26] [265-E; G & H; 266-A]
1.2. On the facts and in the circumstances of the
present case, the petitions instituted by the Company and
c decided by a Single Judge of the High Court could not be
said to be original proceeding under Article 226 of the Con-
stitution. This Court is clearly of the view that the Single
Judge had decided the petitions in exercise of power of
superintendence under Article 227 of the Constitution.
D [Para 33] [269·8,C & D]
Umaji Keshao Meshram & Ors. V Radhikabai,, Widow
of Anandrao Banapurkar & Anr., 1986 Supp SCC 401 relied
on .
E . 1.3. No doubt that the Single Judge of the High Court
who dismissed the Writ petition, was exercising power of
superintendence over a Court/Tribunal subordinate to .it
under Article 227 of the Constitution. Obviously, a rem-
edy of intra court appeal was not available. Hence, the /
r
F Division Bench of the High Court was right in coming to
the conclusion that intra court appeals filed by the Com- .·
pai:iy were not maintainable. No infirmity is found in that
part of the order. [Para 34] [269-G,H; 210:.A]
2.1. A question whether a petition is .barred by res
1

G ;udicata or under Rule 4 of Order XXlll of the Code is not a
'pure' question of law. It is a question of fact or at any rate, ~

a mixed question of law and fact. In absence of pleadings
and necessary materials in support of such plea, petitions
cannot be dismissed on the bald assertion by a party 'that
H they were not maintainable. [Para 36] [270-H; 271-A]
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 249
CEMENT ETC.
J
2.2. It is open to the petitioner to withdraw a petition A
filed by him. Normally, a Court of Law would not prevent
him from withdrawing his petition. But if such withdrawal
is without the leave of the Court, it would mean that the
petitioner is not interested in prosecuting or continuing
' )..
the proceedings and he abandons his claim. In such B
cases, obviously, public policy requires that he should
not start fresh round of litigation and the Court will not
allow him to re-agitate the claim which he himself had
given up earlier.[Para 50] [275-D & E]
Daryao v. State of U.P, (1962) 1SCR574, Sarguja Trans- c
port Service v. State Transport Appellate Tribunal, (1987) 1
SCC 5, A.K. Bhattacharya v. Union of India, 1991 Supp (2).
SCC 109, Murtujakhan v. Municipal Corpn. Of Ahmedabad,
(1975) 16 Guj LR 806, Bakhtawar Singh & Anr. v. Sada Kaur
& Anr., (1996) 11 SCC 167, KS. Bhoopathy & Ors. V Kokila D
& Ors., (2000) 5 SCC 458, Sarva Shramik Sangathan (KV)
and Mumbai v. State of Maharashtra & Ors., (2008) 1 SCC
494 referred to.
2.3. On the facts of the case, this Court is unable to
uphold the argument on behalf of the workmen that the E
Company did not want to prosecute the petitions and had
given up its claim against the order passed by the Labour
Court as confirmed by the Industrial Court. The record
• "I reveals that the Company filed one writ petition against
one employee which was registered as Writ Petition No. F
3060 of 2005. It also filed another petition against the re-
maining employees which was registered as Writ Petition
No. 3471 of 2005. Since the other petition was against
several employees, the Registry of the High Court raised
an objection that it was under 'defect'. It was, therefore, GI
not placed for admission-hearing. In the order, dated Oc-
1
tober 3, 2005, the High Court noted that the counsel for
the Company prayed for time "to remove the defects
pointed by the office". The prayer was granted. It also
appears that according to the Registry, there were practi- H
250 SUPREME COURT REPORTS [2008] 10 S.C.R.
)._

A cal difficulties and logistic problems since the petition was
against more than 200 employees. The counsel for the
Company, therefore, on December 14, 2005, did not 'press'
the petition and petition was accordingly dismissed 'as
not pressed'. The said order was passed. on December
A
B 14; 2005. Immediately thereafter, in January, 2006, sepa-
rate petitions were filed by the Company against the work-
men. It is thus clear that it._ was not a case of abandon..:
ment or giving up of claim by the Company. But, in view
of office objection, practical difficulty and logistic prob-
c lem, the petitioner Company did not proceed with an 'om-
nibus' and composite petition against several workmen
and filed separate petitions as suggested by the Registry
of the High Court.[Para 52] [276-C;D,E,F,G,H; 277-A]
2.4. There is an additional reason also for coming to·
D this conclusion on the basis of which it can be said that
the Company was prosecuting the matter and there was
no intention to leave the matter. As Writ petition No. 3060
of 2005 which was filed against one employee was very
much alive and was never withdrawn/'not pressed'. If re-
E ally the Companywanted to give up the claim, it would have
withdrawn that petition as well. [Para 53] [277-A,B & CJ
3.1. A 'jurisdictional fact' is one on existence of which
depends jurisdiction of a Court, Tribunal or an Authority. If
the jurisdictional fact does not exist, the Court or Tribunal )r
~

F cannot act. If an inferior Court or Tribunal wrongly assumes
the existence of such fact, a writ of certiorari lies. The un-
derlying principle is that by erroneously assuming exist-
ence of jurisdictional fact, a subordinate. Court or an infe-
rior Tribunal cannot confer upon itself jurisdiction which it
G otherwise does not possess. [Para 55] [277-G,H; 278-A]
'~
. 3.2. In the present case, it cannot be said that the
Courts below have committed any error of jurisdiction in
not deciding the issue as to the maintainability of claim-
petitions as preliminary issue. It is well settled that gener-
H
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 251
)
CEMENT ETC.

ally, all issues arising in a suit or proceeding should be tried A
together and a judgment should be pronounced on those
issues. The Law Commission also considered the question
and did not favour the tendency of deciding some issues
as preliminary issues. (Para 64 and 68] (281-A,B; 282-C]
)t.

Arun Kumar v. Union of India, (2007) 1 SCC 732; Carona B
Ltd. v. Parvathi Swaminathan & Ors., (2007) 1 SCC 559; O.P
Maheshwari v. Delhi Administration, (1983) 4 SCC 293; S.K.
Verma v. Mahesh Chandra &Anr, (1983) 4 SCC 214; Tarakant
v. Puddomoney, (1866) 10 MIA 476 and Major S.S. Khanna
v. Brigadiar FJ. Dillion, (1964) 4 SCR 409, referred to. c
3.3. Provisions of the Civil Procedure Code, do not
stricto sensu apply to 'industrial adjudication', After the
AmendmentAct, 1976, amending the Code, the normal rule
~ is to decide all the issues together in a civil suit. In the case
D
on hand, the contention of the workmen is that the accep-
tance of the Voluntary Retirement Scheme was not with
free consent, and even otherwise they were not given all
the benefits to which they were entitled under the scheme.
Therefore, they continued to remain employees of the Com-
pany. The Labour Court felt that the controversy raised by E
the workmen can only be decided in the light of the evi-
dence before it. The said decision has been confirmed by
the Industrial Court as well as by the Single Judge of the
High Court. This Court found no illegality in this approach
for interference under Article 136 of the Constitution. [Para F
69] [282-F,G,H; 283-A & ~]
4. In the present appeals, this Court is not called
upon to consider the merits of the matter. The claim peti-
tions are pending before the Labour Court. The present
G
proceedings are against interlocutory orders. Any obser-
... ..,
vation, one way or the other, may cause prejudice to one
or the other party. This Court, therefore, refrains from en-
tering into allegations and counter-allegations by grant-
ing liberty to both the parties to raise all contentions avail-
H
252 SUPREME COURT REPORTS [2008] 10 S.C.R.

A able in law. The Labour Court is directed to consider the
matter on merits and pass an appropriate order in conso-
nance with law.[Para 72] [282-G,H; 282-A]
Kiran Singh v. Chaman Paswan, (1955) 1 SCR 117 and
Harshad Chiman Lal Modi v. DLF Universal Ltd. & Anr., (2005) ~ •
B 7 SCC 791 - referred to.
5.1. It is well settled that jurisdiction of High 9ourts
under Articles 226 and 227 is discretionary and equitable.
[Para 80] (289-A]
C Jodhey v. State, AIR 1952 All 788 referred to
5.2. The power of superintendence under Article 227
of the Constitution conferred on every High Court over
all courts and tribunals throughout the territories in rela-
D tion to which it exercises jurisdiction is very wide ,and ~
discretionary in nature. It can be exercised ex debito justi-
tiae, i.e. to meet the ends of justice. It is equitable in nature.
While exercising supervisory jurisdiction, High Court not
only acts as a court of law but also as a court of equity It is,
therefore, power and also the duty of the Court to ensure
E that power of superintendence must 'advance the ends of
justice and uproot injustice'. [Para 81] (287-D & E]
Jodhey v. State, AIR 1952 All 788 referred to
5.3. Powers under Articles 226 and 227 are discre-
F tionary and equitable and are required to be exercised in
the larger interest of justice. While granting relief in favour
of the applicant, the Court must take into account balanc-
ing interests and equities. It can mould relief considering
the facts of the case. It can pass an appropriate order
G which justice may demand and equities may project. [Para
89] [291-A & B] •
Roshan Deen vs. Preeti Lal, (2002) 1 SCC 100; Gadde
Venkateswara Rao v. Government of Andhra Pradesh & Ors.,
H (1966) 2 SCR 172, Commissioner of Income Tax, Madras v.
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 253
CEMENT ETC.

Vinod Kumar Didwania, AIR 1987 SC 1260, Chief Settlement A
Commissioners v. Ram Singh, (1987) 1 SCC 612,
Mohammad Swalleh v. Third Additonal District Judge, Meerut,
(1988) 1 SCC 40 and Shangrilla Food Products Ltd. v. Life
Insurance Corporation of India, (1996) 5 SCC 54 relied on.
6. In the considered opinion of this Court, taking into B
account facts and circumstances in their entirety, the or-
der passed and direction issued by the Division Bench
of the High Court was in furtherance of justice. Not only it
has not resulted in miscarriage of justice, in fact it has
attempted to put status quo ante by balancing interests C
and leaving the matter to be decided by a Competent Au-
thority in accordance with law.[Para 90] [291- C & D]
6.2. The Workmen in question cannot retain the ben-
efit if they want to prosecute Claim Petitions instituted by
0
them with the Labour Court. Hence, the order passed by
the Division Bench of the High Court as to refund of
amount cannot be termed unjust, inequitable or improper.
Even if it is held that a 'technical' contention raised by the
workmen has some force, this Court which again exer-
·~
cises discretionary and equitable jurisdiction under Ar- E
ticle 136 of the Constitution, will not interfere with a direc-
tion which is in consonance with the doctrine of equity.
[Para 91] [291-E,F & G]
6.3. The order passed by the Division Bench of the F
High Court is confirme;ct. The payment which is required
to be made as per the said order should be made by the
applicants intending to prosecute their claims before the
Labour Court. In view of the fact, however, that the said
period is by now over, ends of justice would be served if G
the time is extended so as to enable the applicants to
refund the amount. Accordingly, time is extended up to
December 31, 2008 to make such payment. However, the
Claim Petitions will not be proceeded with till such pay-
ment is made. If the payment is not made within the ex- H
254 SUPREME COURT REPORTS [2008) 10 S.C.R.

,l
A tended period, the Claim Petitions of those applicants will
automatically stand dismissed.[Para 92] [292-A,B,C & D]
7. It is clarified that no opinion has been expressed
on the merits of the case one way or the other. And as
and when the matter will come up before the Labour Court, ~
B the Labour Court will consider the Claim Petitions on their ~

..own merits without being influenced by any observations
made in this judgment. All contentions of all parties in-
eluding the contention as to maintainability or otherwise
of ClaimPetitions are kept open. [Para 93] [292-E & F]
c ·.
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 4223
of 2008
From the final Judgment and Order dated 31/10/2006 and
11/12/2006 of the High Court of Madhya Pradesh, Bench at
D Indore in W.A. No. 395 of 2006 and M.C.C. No. 1062 of 2006 ~

respectively
WITH
C.A. Nos. 4224, 4225, 4226 and 4227 of 2008
E
S.K. Gambhir, Ranjit Kumar, M.P. Jha, Ram Ekbal Roy,
Harshvardhan Jha, S. Gurukrishna Kumar, Girish Patwardhan
and Srikala Gurukrishna Kumar for the Appellants.
The Judgment of the Court was delivered by
F r
C.K. THAKKER, J. 1. Leave granted.
2. All these appeals arise out of common judgment and
order passed by the Division Bench of the High Court of Madhya
Pradesh (Indore Bench) on October 31, 2006 in Writ Appeal
G No. 353 of 2006 and companion matters and also against an
order dated December 11, 2006 in Review Petition M.C.C. No.
1062 of 2006 and cognate matters. The orders passed by the ~
.....
Division Bench of the High Court have been challenged by both
the parties i.e. employees/ workmen as also by the employer/
Company.
H .......
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 255
CEMENT ETC. [C.K. THAKKER, J]
~

FACTUAL BACKGROUND A
3. To appreciate the controversy raised in the present ap-
peals, few relevant facts may be noted.
4. Vikram Cement ('Company' for short) is engaged in
\
' the business of manufacturing cement of different grades and B
has its plant at Vikram Nagar, Kher, Madhya Pradesh. Appel-
lants in one set of appeals are employees engaged and work-
ing in the factory of the Company. It was the case of the Com-
pany that with a view to rationalize its manpower, it introduced
a Voluntary Retirement Scheme ('the Scheme' for short) on July c
12, 2001 in the Cement Plant. The said scheme provided vol-
untary retirement of workmen who had either completed 40 years
of age or put in at least 10 full years of service. They were to be
paid benefits as provided in the scheme. The scheme was dis-
--4 played on the Notice Board and widely publicized through local
D
press. It appears that out of 1500 employees, about 460 em-
ployees opted for voluntary retirement which was accepted by
the Company and they were granted all benefits towards 'full
and final settlement' in terms of the scheme. This was done
during July-September, 2001. According to the Company, the
workmen received those benefits, issued stamped receipts in E
token of acceptance of the amount under the scheme and
ceased to remain 'workmen' of the Company. The relationship
between the 'employer and employee' came to an end. Ac-
.., cording to the Company, however, during September-October,
2001, some of the employees who had opted for voluntary re- F
tirement, accepted benefits under the scheme and who were
no more employees of the Company approached Labour Court,
Mandsour by invoking Section 31 of the Madhya Pradesh In-
dustrial Relations Act, 1960 (hereinafter referred to as 'the Act'),
inter alia, contending that they had not opted for voluntary re- G
. i tirement; they continued to remain workmen of the Company;
they were pressurized, threatened and forced to accept some
amount; though they were willing to work and continue as em-
ployees of the Company, they were not allowed to join duty. It
was also their case that they were not paid legal and proper H
\
256 SUPREME COURT REPORTS [2008] 10·S.C.R. .

}..
A benefits to which they were otherwise entitled even under the
scheme. The so-called payment said to have been made to
them was also not adequate and 'full and final settlement' of the
dues in accordance with law. It was, therefore, contended by
them that they were entitled to reinstatement. As they were not
l
allowed to continue as workmen by the Company, the impugned ....
B :J
action was in the nature of an order of 'removal' or termination
of service and appropriate relief, therefore, was required to be
granted to them.
ORDER OF LABOUR COURT
c
5. Cases were duly registered by the Labour Court. No-
tices were issued. The Company appeared and raised pre-
liminary objection as to the maintainability of the claim put for-
ward by the workmen. It was contended by the Company that
the workmen had accepted the scheme and received the amount ?"
D ~·
towards 'full and final settlement' and left the Company forever.
It was not a case of 'removal' or 'termination' of services and
.the applications were liable to be dismissed as they were no
more in employment. A prayer was, therefore, made to uphold
preliminary objections which were of legal nature and to dis-
E miss cases only on that ground. The Labour Court considered
objections raised by the Company and reply of the workmen. It,
however, opined that there was 'factual dispute' between the
parties and it was not possible to dismiss cases as being not
maintainable. It, therefore, directed the Company by an order ,..
F dated September 16, 2003 to file written statement so that the •
matter may be .decided on merits. The Company challenged
the said order by approaching the Industrial Court, Madhya
Pradesh at Indore but the said application was also dismissed
by the Industrial Tribunal vide an order dated February 11, 2004.
G The Company then filed reply contending that the applications
filed by the 'so called workmen' were clearly an 'afterthought',
more so, when they had accepted the amounts/benefits under ~
'
the scheme. Hence, the claim was wholly ill-founded. It was
averred by the Company that some of the workmen had even
H approached the Authority under the Payment of Gratuity Act for
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 257
CEMENT ETC. [C.K. THAKKER, J]

increased amount of gratuity, thus, clearly exhibiting and admit- A
ting to the severance of relationship of master and servant be-
tween the parties. It was contended that the workmen could not
be allowed to resile from the stand taken by them earlier. They
were estopped from challenging the factum of voluntary retire-
ment. B
6. The Company moved the Labour Court on November
9, 2004 requesting the Court to frame three additional issues
viz., 4(a), 4(b) and 4(c) and hear them as preliminary issues.
The said issues read as under:
c
4(a) Whether the application is barred by estoppel?
4(b) Whether the application filed by the applicant can be
heard under Sections 31 (3), 61 and 62 of MPIR Act?
4(c) Whether the application is time barred?
--1 D
7. The Labour Court accepted the request of the Com-
pany to frame issues 4(a), 4(b) and 4(c). It, however, rejected
the prayer to decide those issues as 'preliminary issues' be-
fore deciding other issues on merits. According to the Labour
Court, it was not advisable to decide the issues as preliminary E
issues without recording evidence. The application of the Com-
pany was, therefore, dismissed.
ORDER OF INDUSTRIAL COURT
8. Being aggrieved by the said order, the Company again F
approached the Industrial Court. It was contended that the pre-
liminary issues raised by the Company and approved by the
Labour Court were 'purely legal issues' and the Labour Court
was wrong in treating them as mixed issues of law and fact
which required leading of evidence. The order passed by the G
Labour Court was, therefore, liable to be set aside.
9. The Industrial Court, however, held that the Labour Court
was right in rejecting the prayer of the Company to decide is-
sues 4(a), 4(b) and 4(c) before deciding other issues. Accord- .
ing to the Industrial Court, it was the case of the employees that H
258 SUPREME COURT REPORTS [2008) 10 ?.C.R.

.A . their signatures had been taken on the applications for volun-
tary retirement by exercising pressure and under duress. It was
· also their case that they had been paid 'lesser amount' than the
amount declared under the scheme. Moreover, they had not
accepted the amount voluntarily and with free cpnsent but .the
..B same was paid to them under coercion. The Court also noted
that the employees had given undertaking that they were ready
to refund .the amount received by them. The Industrial Court,,)n
the circumstances, observed that the dispute could not be re-
solved without recording evidence. Accordingly, the prayer made
C by the Company to decide issues of jurisdiction and maintain-
ability as preliminary issues was rejected by the Industrial Court.
ORDER OF SINGLE JUDGE OF HIGH COURT
10. Being aggrieved by the said order, the Company ap-
. ·D preached the High Court. The learned Single Judge of the H~gh
. Court, by an order dated February 6, 2006, dismissed the writ
petition observing, inter alia, that the order passed by the Labour
. Court and confirmed by the Industrial Court was interlocutory in
nature and did not decide any controversy. It merely deferred
E , the decision on the question as to maintainability of claim along
with other issues. Such order could not be said to be without
jurisdiction so as to interfere with it in exercise of supervisory
jurisdiction under Article 227 of the Constitution. No finding much
less categorical finding one way or the other had been recorded
:. F and rights of the parties were yet to be crystallized by the Court.
'· 1twas also observed that whether a particular issue arising from
the pleading between the parties be tried as preliminary issue
: or not should be examined by the. Court keeping in view the
provisions of Order XIV of the Code of Civil Procedure, 1908
,:.G ':"(hereinafter referred to as 'the Code'). On the facts and in the
circumstances of the case, both the Courts were right in riot
· deciding the issues as to jurisdiction and maintainability of claim
as preliminary issues. No interference was, therefore, called
·tor. Accordingly, the writ petition was dismissed.
'.H
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 259
CEMENT ETC. [C.K. THAKKER, J]

EARLIER SLP A
11. The Company challenged the said order by filing Spe-
cial Leave Petition in this Court. Notice was issued and interim
stay of further proceedings was granted by this Court. The work-
men appeared. On September 1, 2006, the matter was pl~ced
before the Court. During the intervening period, however, an 8
Act known as the Madhya Pradesh Uchcha Nyayalaya (Khand
Nyayapeeth Ko Appeal) Adhiniyam, 2005 ('Adhiniyam' for short)
came into force. This Court, therefore, held that it was not in-
clined to entertain Special Leave Petition under Article 136 of
the Constitution in view of availability of intra court appeal (Writ C
Appeal) under the Adhiniyam and accordingly, Special Leaye
Petition was dismissed with liberty to the Company to approach
the High Court. Interim relief granted earlier was, however, or-
dered to be continued for a period of two months. But it was
expressly stated by this Court that the question of maintainabil- D
ity of intra court appeal would be decided by the High Court in
accordance with law.
ORDER OF DIVISION BENCH
12. In view of the above order passed by this Court, intra E
court appeals were filed by the Company. The Division Bench
of the High Court, as stated above, disposed of the appeals by
an order dated 31 51 October, 2006. It was held by the Division
Bench that the writ petitions filed by the Company were under
Article 227 of the Constitution and the learned Single Judge F
was exercising supervisory jurisdiction and intra court appeals
were not maintainable and were liable to be dismissed. The
Division Bench, however, held that since the respondent-work-
men had received the benefits under the scheme, pocketed
the amount and approached the Labour Court claiming that they G
had not voluntarily accepted the scheme and the benefit there- ·
under, it would be equitable to direct each of the employees
who had filed a petition under Section 31 (3) of the: Act to return
the benefit so received to the employer, subject to the under-
taking by the Company that in the event the Labour Court al- H
260 SUPREME COURT REPORTS [2008] 10 S.C.R.
~
~
I--
A lows the claim and grants benefits to the workmen, the same
would be restored to them by the Company with interest@ 6% \
per annum.
13. The workmen are much aggrieved by that part of the
order which directed them to refund the amount. They filed re-
~ '
B view petitions but they were dismissed by the Division Bench
on De.cember 11, 2006. The workmen have, therefore, ap-
proached this Court by filing Special Leave Petitions in which
riotices were issued and the Company appeared. The Com-
pany, on the other hand, felt aggrieved by the drder of the Divi-
c sion Bench holding intra court appeal not maintainable as also
by the order passed by the Labour Court, confirmed by the In-
dustrial Court and also by the High Court not deciding issaes of
jurisdiction and maintainability of petitions filed by the employ-
ees as preliminary issues before other issues are taken up for
D consideration. Their Special Leave Petitions were also ordered ~
to be heard along with Special Leave Petitions filed by the work-
men and that is how all the matters are before us.
SUBMISSIONS OF COUNSEL
E 14. We have heard learned counsel for the parties.
15. The learned counsel for the workmen vehemently con-
tended that the order passed by the Division Bench of the High
Court was without jurisdiction so far as it directed the workme.n
to refund the amount received by them. The counsel submitted
F that once the Division Bench held that intra court appeals were
not maintainable, it had no power to pass any order directing a
party to do or not to do something. Such direction is without
authority .of law, there is total lack of jurisdiction and the order is
non est. No direction of refund of amount, therefore, could have
G been issued by the Division Bench. On that ground alone, ap-
peals filed by the workmen deserve to be allowed. Alternatively,
it was submitted that once it was the case of the workmen that
they had not accepted the scheme voluntarily, they were deemed
to be continued in employment. If it is so, they would be entitled
H to receive wages. But they were not allowed to join duty and to
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 261
CEMENT ETC. [C.K. THAKKER, J]
-~

work. No payment of wages had been made to them by the A
Company. The Company, for that reason also, cannot ask for
repayment of amount paid to them. At the most, the said amount
can be adjusted towards payment of wages. The counsel also
submitted that being aggrieved by the order passed by the In-
dustrial Court, the Company filed a writ petition which was with- B
drawn. No express liberty was granted to the Company to file
fresh petition on the same cause of action. Thereafter fresh
petitions were filed by the Company. Such petitions were not
maintainable and ought not to have been entertained by a Single
Judge of the High Court. They were barred by the doctrine of c
constructive res judicata as also on the ground of abandon-
ment of claim.
16. On merits, it was submitted that the w_orkmen were not
paid the dues which ought to have been paid to them. A mea-
ger amount was offered which was accepted by workmen un- D
der duress. It was less than the amount required to be paid
under the scheme. The payment was made in remote past and
at this stage, it would be very difficult for them to refund the
amount. The High Court should not have ordered repayment of
the amount to the Company and ought to have directed the E
Labour Court to proceed to decide the matter on merits by ex-
pressly clarifying that the payment would abide by the final out-
come of the cases before the Labour Court. On all these
grounds, it was submitted that the order passed by the Division
of
Bench deserves to be set aside by restoring the order of the F
learned Single Judge.
17. The learned counsel for the Company, on the other
hand, supported that part of the order of the Division Bench
which directed refund of amount by the workmen to the Com-
pany. It was, however, submitted that the Division Bench was G
'
'
.. not right in not entertaining, dealing with and deciding intra court
appeals on the ground that such appeals were not maintain-
1 able. The counsel submitted that while deciding the issue as to
whether intra court appeal is or is not maintainable, nomencla-
tu re or reference to a particular Article of the Constitution in the H
262 SUPREME COURT REPORTS [2008] 10 S.C.R.

A w'rit petition is not material. Similarly, observations of learned
Single Judge that he is exercising the power under a particular
provision of the· Constitution is also not decisive. The Division
Bench was r~quired to apply its mind i,ndependently and to con-
sider the nature of controversy raised before the Single Judge. .,.
B And if it finds that the petition was underArtiele 226 of the Con-
stitution, the Division Bench was enjoined to entertain intra-court
appeals and to decide them on merits. The counsel alterna-
ti~ely submitted that even if the Division Ben~h felt that the writ
petitions were under both the Articles, viz. Article 226 and Ar-
c tigle 227 of the Constitution, as per settled law, no party ca'~ be
deprived of right of intra court appeal merely by referring to the
other Article i.e. Article 227 of the Constitution, over and.above
Afticle 226 of the Constitution under which such right is avail-
able to the party aggrieved by an order passed by a Single
Judge. It was, therefore, submitted that the appeals of the Com-
0
pany should be allowed and the matter may be remitted to the
Division Bench of the High Court so as to enable the Court to
de.cide intra Court appeals on merits in accordance with law.
';
18. The learned counsel also contended that an objection
E as to non-maintainability of writ petitions on the ground of con-
structive res judicata/abandonment of claim is not well-founded.
First of all, no such contention was ever advanced either before
the learned Single Judge or before the Division Bench of the
High Court. It is also not raised in Special Leave Petitions. Such ~
F : a plea has been taken at a belated stage as an 'afterthought'.
Even otherwise, the contention is not well-founded and is totally
misconceived. The Company filed a writ petition against more
than 200 employees. The Registry of the High Court raised an
objection as to maintainability of such petition. The petition was
G dt?~cribed as 'defective' or under an 'office objection' having
'logistic problem'. The Company considered the point raised
by,the Office and withdrew the petition to file separate and in-
dependent petitions. Individual petitions were then filed which·
were decided by the Court. The objection against maintain-
ability of writ petitions has thus no force.
H
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 263
CEMENT ETC. [C.K. THAKKER, J.]
~ ~
19. On merits, the counsel contended that the Labour Court, A'
. Industrial Court and the learned Single Judge of the High Court
were in error in not deciding the issue as to maintainability of ·
claims as preliminary issue. It was an admitted fact that the
scheme was introduced by the Company, it was accepted by
the workmen and payment was made to them. Once these facts 9,·
are admitted, there remained no relationship of master and
servant between the Company and the workmen. It is not even
the case of the workmen that they have not been paid. In view of
these facts, the Company was right in requesting the Labour
Court to decide that the question whether claim petitions filed c.
by the workmen were maintainable. The question was pure
question of law. It did not require investigation of facts. The is-
s~e. therefore, ought to have been heard as preliminary issue.
According to the counsel, the fact whether the claimants were.
workmen or not was a 'jurisdictional' fact. The Labour Court
D
was having 'limited jurisdiction' under the Act. It was, therefore,
. obligatory on the Labour Court to decide whether the jurisdic-
tional or preliminary fact which could confer jurisdiction on the
court was present. By not doing so, it had committed jurisdic-
tional error which was required to be corrected by the High Court
in certiorari-jurisdiction. But the High Court also committed the E
' same error. Hence, this Court may interfere with the said order
by directing the Labour Court to decide issues 4(a), 4(b) and
4(c) as preliminary issues. Even if intra court appeals are held
'? not maintainable, the Company is before this Court under Ar-
ticle 136 of the Constitution and an appropriate order, there- F
fore, may be made by the Court.
MAINTAINABILITY OF INTRA COURT APPEAL
20·. So far as intra court appeals are concerned, the learned
counsel for the Company strenuously urged that the Division G
I ... Bench of the High Court was in error in holding that intra court
appeals were not maintainable. He submitted that Adhiniyam
conferred such right on the party aggrieved by a decision of a
Single Judge of the High Court. It was also submitted that this
Court at the time of hearing of Special Leave Petition consid- H
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 265
CEMENT ETC. [C.K. THAKKER, J.]

Constitution of India. A
(2) An appeal under sub-section (1) shall be filed within 45
days from the date of order passed by a single Judge:
Provided that any appeal may be admitted after the
"' prescribed period of 45 days, if the petitioner satisfies the B
Division Bench that he had sufficient cause for not
preferring the appeal within such period.
Explanation.-The fact that the petitioner was misled by
any order, practice or judgment of the High Court in
ascertaining or computing the prescribed period may be c
sufficient cause within the meaning of this sub-section.
(3) An appeal under sub-section (1) shall be filed, heard
and decided in accordance with the procedure as may be
prescribed by the High Court.
D
23. Section 3 enables the High Court to make Rules un-
der the Act for carryin~ out purposes of the Act. Section 4 re-
peals the Madhya Pradesh Uchcha Nyayalaya (Letters Patent
Appeals Samapthi) Adhiniyam, 1981.
24. Bare reading of sub-section (1) of Section 2 of the
E
Act, quoted above, leaves no room for doubt that it allows a
party aggrieved by a decision of a Single Judge of the High
Court to appeal to a Division Bench of the High Court if a Single
). Judge has rendered a judgment or passed an order in exer-
cise of original jurisdiction under Article 226 of the Constitu- F
tion. Proviso to sub-section ( 1) expressly declares that no such
appeal shall lie against an order passed in exercise of supeNi-
sory jurisdiction under Article 227 of the Constitution.
25. It is, therefore, clear that if the order is passed by a G
Single Judge of the High Court in exercise of original jurisdic-
• tion under Article 226 of the Constitution, an intra court appeal
would lie. If, on the other hand, a Single Judge exercises power
of superintendence under Article 227 of the Constitution, intra
court appeal would not be competent.
H
266 SUPREME COURT REPORTS · [2008] 10 S:C-.R

A 26. Precisely, this was the poS.ition~under:different L~tters
Patents. For instance, Clause 15of the ~etters 1Patemt as appli-
cable to High Courts Of Calcutta, r\i)adra's aiid ·Bombay (Char~
tered High Courts), conferred such. right of.Letters Patent Ap-
peal. It read as under: · ·
B 15. Appeal to the High Court from Judges oi the Court.-
. - And_ We do further ordain that :ah appear sh.all lie to the
· said High Court of Judicature at Bombay from the judgment
: (not befng a judgment passed in the exercise of appell~te
'jurisdiction in respect of a decree or order rnade in the
c ·exercise of appellate jurisdiction by a Court subject to the
superintendence of the said High Court, and not being an
order made in the exercise of revisional jurisdiction and
not being a sentence or order passed or m.ade in the
exercise of the power of superintendence under the
D provisions of Section 107 of the Government of India Act
·or in the exercise of criminal jurisdiction) of one Judge of
the said High Court or one Judge of any Divi$ion Court,
pursuant to Section 108 of the Government of India Act,
and that notwithstanding anything hereinbefore provided
E an appeal shall lie to the said High Court from a judgment
of one Judge of the said High Court or one Judge of any
Division Court, pursuant to Section 108 of the Government
of India Act made on or after the...f[rst day of February One
thousand nine hundred and twenty-nine in the (3xerc!se of
F appellate jurisdiction in respect of a decree or order made
in the exercise of aP.pellate jurisdiction by a Court subject
to the superintendence of the said High Court, where the
Judge who passed the judgment declares that the case is
a fit one for appeal; but that the right of appeal from other
judgments of Judges of the said High. Court or of such
G
Division Court shall be to Us, Our Heirs or Successors in
Our or Their Privy-Council, as hereinafter provided.
. '

27. The said clause (Ciause 15) came up for consider-
ation before this Court in several cases. We may, however, re-
H fer to only one leading judgment on the point in Umaji Keshao
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 267
CEMENT ETC. [C.K. THAKKER, J.]

Meshram & Ors. V. Radhikabai, Widow of Anandrao A
Banapurkar & Anr., 1986 Supp SCC 401. In that case, pro-
ceedings had been initiated under the Bombay Tenancy and
Agricultural Lands (Vidart:>ha Region) Act, 1.958. A person ag-
grieved by an order passed by Appellate' Authmity under the
Act preferred revision before the Revenue Tribunal which was ff
allowed. The order of the Tribunal was challenged in a writ peti-
tion under Article 227 of the Constitution before the High Court
of Bombay (Nagpur Bench). A Single Judge allowed the peti-
tion. The order passed by the Single Judge was the,n challenged
by the aggrieved party by filing Letter Patent Appeal before the c
Division Bench under Clause 15 of the Letters Patent. The Di-
vision Bench of the High Court dismissed the appeal as not·
maintainable. The. said decision wa~ challenged by ttie appel~
lant in this Court.
28. This Court observed that the High Court of Judicature D
at Bombay was established by ~et~ers Patent·dated ,June 26;
1862 issued oy the B.ritish Crown pursuant to the a.uthority con-
ferred on it by the Indian High CourtsAct, 1861 (24 and 25 Viet.,
c. 104). The Letters Patent also conferred right to institute an
appeal to the Division Bench of the High Court against the 'judg- E
ment' rendered by a Single Judge of the same court in certain
cases.
29. Considering the history, tradition and development of
Letters Patent amended from time to time, the Government of
India Acts, 1915 and 1935 and the provisions of the 'Constitu- F
tion, this Court ruled that in case a Single Judge of the High
Court has given a judgment or passed an order in exercise of
· jurisdiction under Article 226 of the Constitution, remedy of Let-
ters Patent Appeal is available to the aggrieved party. Madon,
J. who delivered the judgment for the Court proceeded to ob- G
serve that when the facts justify the party to invoke Article 226
or 227 of the Constitution and he chooses to institute a petition
under both the Articles, he should not b·e deprived of right of
appeal available under Clause 15 of the Letters Patent.
H
268 SUPREME COURT REPORTS [2008] 10 S.C.R.

A 30. His Lordship stated:
"Petitions are at times filed both under Articles 226 and
227 of the Constitution. The case of Hari Vishhu Karnath
v. Syed Ahmad lshaque and Ors. (1955) 1 SCR 1104 :
AIR 1955 SC, 233, before this Court was of such a type. )t
B Rule 18 provides that where such petitjons are filed
aga,inst orders of the tribunals or authorities SP,ecified in
Rule 18 of Chapter XVII of the Appellate Side Rules or
against decrees or.orders of courts specified in that Rule,
they shall be heard and finally disposed of by a Single
c Judge. The qlJestion is whether an appeal would lie from
the decision of the Single Judge in such a case. In our .
opinion, where the facts justify a party in filing an
application either under Article 226 or 227 of the
Constitution, and the party chooses to file his application
D under both these Articles, in fairness and justice to such
· party and in order not to deprive him of the valuable right
·of appeal the Court ought to treat the application as being
made under Article 226, and if in deciding the matter, in
the final order the Court gives ancillary directions which
E may pertain to Article 227, this ought not to be held to
deprive a party of the right of appeal under Clause 15 of
the Letters Patent where the substantial part of the order
sought to be appealed against is under Article 226".
(emphasis supplied)
F
31. (We may observe at this stage that Chinnappa Reddy,
J. expressed his inability to opine on the issue being 'unfamil-
iar' with the history, tradition and the law of the city of Bombay).
32. In our judgment, the learned counsel for the appellant
G is right in submitting that nomenclature of the proceeding or
reference to a particular Article of the Constitution is not final or ..
conclusive. He is also right in submitting that an observation by
a Single Judge as to how he ·had dealt with the matter is also
not decisive. If it were so, a petition strictly falling under Article
H 226 simpliciter can be disposed of by a Single Judge observ-
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 269
CEMENT ETC. [C.K. THAKKER, J.]
~
ing that .he is exercising power of superintendence under Ar- A
ticle 227 of the Constitution. Can such statement by a Single
Judge take away from the party aggrieved a right of appeal
against the judgment if otherwise the petition is under Article
226 of the Constitution and subject to an ir.itra court/Letters
1
Patent Appeal? The reply unquestionably is in the negative [see B
Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors.,
(1998) 5 sec 749].
33. In our considered opinion, however, on the facts and
in the circumstances of the present case, the petitions insti-
tuted by the Company and decided by a Single Judge of the c
High Court could not be said to be original proceeding under
Article 226 of the Constitution. We are clearly of the view that
the learned Single Judge had decided the petitions in exercise
of power of superintendence under Article 227 of the Constitu-
~
tion. D
34. We have already referred to the facts of the case. Ac-
cording to the Company, voluntary retirement was accepted by
the employees. They thereafter challenged the action on the
ground that the acceptance was not voluntary but they were
compelled to opt for the scheme and were paid some amount E

. which was not in consonance with law and the action of not al-
lowing them to continue in the employment amounted to removal
from service. They, therefore, approached Labour Court for an
appropriate relief. The Labour Court entertained complaints and
• F
issued notice. The Company appeared and raised preliminary
objections. Issues were framed and a prayer was made by the
Company to decide 'issues of law' as preliminary issues which
prayer was rejected by the Labour Court. The Company ap-
preached Industrial Court which also did not interfere with the
order of the Labour Court. That order was again challenged by G
" ,, the Company by filing petitions in the High Court and the learned
Single Judge dismissed the petitions. In view of the aforesaid
facts, we have no doubt that the learned Single Judge was
exercising power of superintendence over a Court/Tribunal sub-
ordinate to it under Article 227 of the Constitution. Obviously, a H
270 , SUPREME COURT REPORTS [2008] 10 S.C.R.

A remedy of intra court a·ppeal was not available. We, therefore,
hold that the Div.ision Bench was right in coming to ttie conclu-
sion that. intra court appeals filed by the Company were not
maintainable. We see no infirmity in that part of the order. The .
contention of the appellant Company is, therefore, rejected.
MAiNTAINABILITY OF WRIT PETITIONS
35. It was urged on behalf of the workmen that the writ
petitions filed by the Company for quashing and setting aside
the orders passed by the Labour Court and confirmed by the
·C Industrial Court were barred by constructive resjudicata as also
·under Order XXlll, Rule 4 of the Code. The argument proceeds
'thus: The Company filed a Writ Petition No. 3471 of 2005 un-
; der Article 227 of the Constitution in the High Court for quash-
.Ing and setting aside an order dated March 14, 2005 passed
by the Labour Court and an order dated August 8, 2005 passed
0
by the Industrial Court. On December 14, 2005, the Company
withdrew the petition. It, however, filed fresh petition in respect
of the same cause of action. No permission or leave of the Court
.. was sought, nor it was granted by the Court when the writ peti-
. tion was withdrawn to file fresh petition by the petitioner in re-
_:;E · spect of the same cause of action. Fresh petitions were, there-
fore, not maintainable.
36. The learned counsel for the Company, however, sub-
mitted that the objection raised by the workmen is not well-
: F founded. Firstly, it was urged that no such contention was raised
· ' ·by the workmen in reply to the writ petitions filed by the Com-
•
:... pany, nor it was taken before the learned Single Judge at the
' time of hearing of petitions. Nor such argument was raised in
this Court when earlier Special Leave Petition was filed by the
c·, G. Comp~ny !n this Court. It was also not ta~e_n_when the Com-
. ,. · _· ·. pany filed intra court appeals before the D1v1s1on Bench of the
... High Court after disposal of Special Leave Petition by this Court. t
Even in Special Leave Petition filed in this Court by the work-
men, no such point has been raised. A question whether a peti-
tion is barred by res judicata or under Rul~ 4 of Order XXlll of
:.; H
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 271
CEMENT ETC. [C.K. THAKKER, J.]
• the Code is not a 'pure' question of law. It is a question of fact or A
at any rate, a mixed question of law and fact. In absence of
pleadings and necessary materials in support of such plea,
petitions cannot be dismissed on the bald assertion by a party
that they were not maintainable.
37. Let us consider legal position on this issue.
8

38. In the leading case of Oaryao v. State of UP, (1962) 1
SCR 574; a Constitution Bench of this Court was called upon
to decide whether withdrawal of a writ petition would operate
as resjudicata. The Court held that an order of withdrawal would C1
not constitute res judicata inasmuch as there is no decision on
the merits by the Court. The Court, however, proceeded to ob-
serve that when a petition is withdrawn by the party without ob-
taining liberty from the Court to file fresh petition on the same
subject matter, as a general rule, the petitioner is precluded
~ D
from filing a fresh petition or an appeal against such an order
because "he cannot be considered to be a party aggrieved by ·
the order passed by the Court permitting withdrawal of the pe-
titian".
39. In Sarguja Transport Service v. State Transport Ap- E
pel/ate Tribunal, (1987) 1 SCC 5, the Appellate Tribunal set
aside permit granted in favour of the petitioner by the Regional
Transport Authority to run a stage-carriage. The petitioner filed
a writ petition under Article 226 of the Constitution in the High
Court of Madhya Pradesh against the order of the Tribunal but F
"' withdrew it. Then he filed a fresh petition. The High Court dis-
missed it holding that after the withdrawal of the first petition,
the second petition was not maintainable. The aggrieved ap-
pellant approached this Court.

40. Dismissing the appeal and considering the ambit and G
scope of Order XXI 11 of the Code and distinguishing it from the
1 doctrine of res judicata under Section 11 of the Code, this Court
observed:

"The law confers upon a man no rights or benefits which
Hi
272 SUPREME COURT REPORTS [2008] 10 S.C.R.

A he- _does not desire. Whoever_ waives, abandons or
disclaims a right wiil loose it. In order to prevent a litigant
from abusing the process of the Court by in·stituting suits
again and again on the same cause of action without any
good reason the Code insists that he should _obtain the
B permission of the Court to file a fresh suit' after establishing
either of the tWo grounds rnen.tioned in Sub.:.rule (3) of
Rule 1 of Order XXI 11. The principle underlying the above
rule is foundeq on public policy, but it is not the same as
the rule of res judicata contained in Section 11 of the
c . Code which -provides that no court shall try any suit or
issue in which the matter directly or substantially in issue
has been directly or substantially in issue in a former.suit
between the same parties, or between parties.under whorn
they or any of them claim, litigating under the same title,
in a Court competent to try such subsequent suit or the
D
suit in which such issue has been subsequently raised,
and has been heard and finally decided by such Court.
- The rule of res judicata applies to_ a case where the_ suit
or an issue has already been heard and finally decided by
a Court. In the case of abandonment or withdrawal of a
E suit without the permission of the Court to file a fresh suit,
there is no prior adjudication of a suit or an issue is
involved, yet the Code provides, as stated earlier, that a
second suit will not lie in Sub-rule (4) of Rule 1 of Order
XX/II of the Code when the first suit is withdrawn without
F the permission referred to in Sub-rule (3) in order to
prevent the abuse of the process of the Courf'.
-(emphasis supplied)
.
41. In A.K. Bhattacharya v. Union oflndia, 1991 Supp (2)
G - SCC 109, the petitioner filed- a writ petition in the High Court of
Gauhati underArticl~ 226 of the Constitution seeking Selection
Grade in Tripura Civil Service and also promotion to the IAS ~-
cadre. A statement was made by the Advocate General that the
case of the petitioner would be considered for Selection Grade
H inTripura Civil Service. The petitioner, in view of the said state-
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 273
CEMENT ETC. [C.K. THAKKER, J.]
~
ment, did not press the second relief. Subsequently, however, A
the petitioner prayed for that relief by filing a petition in this Court
under Article 32 of the Constitution.
42. Dismissing the petition, this Court commented:
..
I
"He (petitioner) cannot, in this petition under Article 32 of B
the Constitution, ask for the same relief which he had
himself given up in the High Court".
[see also State of Gujarat v. Bhaterdevi Ramnivas
Sanwalram, (2002) 7 SCC 500]
c
43. In Murtujakhan v. Municipal Corpn. Of Ahmedabad,
(1975) 16 Guj LR 806, a petition was filed under Article 226 of
the Constitution challenging the constitutional validity of the
Bombay Town Planning Act, 1954. The respondents appeared,
filed affidavits and contested the petition on merits. Ultimately,
-J D
however, the petition was withdrawn by the petitioner since the
point raised in the petition as to validity of the Act was covered
by the decisions of this Court and as such nothing survived.
Then again a fresh petition was filed by the petitioner challeng-
-l
' ing the validity of the Act.
E
44. Dismissing the petition and applying the general prin-
ciple of res judicata, the Court observed:
"The consequence of the withdrawal of the said writ petition
in the eye of law was that it stood dismissed on merits
" albeit on a concession made by or on behalf of the F
petitioner to the effect that the question of the constitutional
validity of the Act was no longer open in view of the decisions
of the Supreme Court. In other words, the effect of the
dismissal by withdrawal was that the challenge of the
petitioner to the actions of the respondents under the Act G
on the ground that the said Act itself was ultra vi res stood
concluded by an adverse decision of this Court based on
his own concession ....
45. The Court proceeded to state;
H
274 SUPREME COURT REPORTS [2008] 10 S.C.R.

A [T]he petitioner having himself abandoned without
reservation the previous writ proceeding initiated in this
very Court with eyes open and after due deliberation cannot
now be allowed to pick up the thread after a lapse of five
years and to start a fresh proceeding to re-agitate the very
B point which he expressly gave up in the previous
proceeding. He had set the machinery of law in motion but
solemnly brought it to an abrupt halt, indeed forsaken it in
midstream, in proclaimed obeisance to the decisions of
the Supreme Court. He cannot be permitted to resume it
c now after a number of years and be heard to say that
. despite his earlier proclamation, he still wishes to persist
in raising the same point in this litigation. Courts moved
upon a prerogative writ are not the forum to flog a dead
horse or to resuscitate a ghost already laid to rest".
D (emphasis supplied)
46. In BakhtawarSingh &Anr. v. Sada Kaur&Anr., (1996)
11 SCC 167, this Court observed that if the plaintiff withdraws
· the suit and there is no evidence to show that the suit was bound
to fail by reason of some 'formal' defect or there were sufficient
E grounds for allowing the plaintiff to institute a fresh suit in re-
spect of the same subject matter and for the same relief, after
the withdrawal of the earlier suit, the action of filing fresh suit
would be barred under Order XXlll of the Code.
\.-
F 47. In KS. Bhoopathy & Ors. V Kokila & Ors., (2000) 5
SCC 458, this Court stated that the Court has to discharge the
duties mandated under the provisions of the Code in taking r
tr
into consideration all relevant aspects of the matter including
the desirability of permitting the party to start a fresh round of
G litigation for the same cause of action.
48. We may also refer to a recent decision of this Court in
Sarva Shramik Sangathan (KV), Mumbai v. State of
Maharashtra & Ors., (2008) 1 SCC 494. In that case, an appli-
cation under Section 25-0 of the Industrial Disputes Act, 1947
H was filed by the employer for closure of undertaking. The appli-
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 275
CEMENT ETC. [C.K. THAKKER, J.]

cation was, however, withdrawn since attempts were made for A
settlement of the matter. The efforts were not successful and
hence, the management filed fresh application. It was contended
by the Union that since earlier application filed by the employer
was withdrawn, the second application was hit by Order XX/II of
the Code. The Union relied upon Sarguja Transport Service. B
49. Negativing the contention, holding the application main-
tainable and distinguishing Sarguja Transport Service, this
Court held that the action of the Management of withdrawal of
first petition was bona fide. It was not a case of Bench-hunting
with a view to avoid an adverse order likely to be passed against C ·
it. Sarguja Transport Service had, therefore, no application. It
was also observed that provisions of the Code of Civil Proce-
dure do not strictly apply to industrial adjudication. The second
application was, therefore, held maintainable.
~ 50. From the above case law, it is clear that it is open to D
the petitioner to withdraw a petition filed by him. Normally, a
Court of Law would not prevent him from withdrawing his peti-
tion. But if such withdrawal is without the leave of the Court, it
would mean that the petitioner is ne>t interested in prosecuting
or continuing the proceedings and he abandons his claim. In E
such cases, obviously, public policy requires that he should not
start fresh round of litigation and the Court will not allow him to
re-agitate the claim which he himself had given up earlier.
51. In Sarguja Transport Service, extending the principles F
laid down in Daryao, Venkataramiah, J. (as His Lordship then
was) concluded;
"[W]e are of the view that the principle underlying Rule 1
of Order XX.Ill of the Code should be extended in the
interests of administration of justice to cases.pf withdrawal G
of writ petition also, not on the ground of res judicata but
on the ground of public policy as explained above. It would
also discourage the litigant from indulging in bench-hunting
tactics. In any event there is no justifiable reason in such
a case to permit a petitioner to invoke the extraordinary H
276 SUPREME COURT REPORTS [2008] 10 S.C.R.

A jurisdiction of the High Court under Article 226 of the
Constitution once again. While the withdrawal of a writ
petition filed in a High Court without permission to file a
fresh writ petition may not bar other remedies like a suit or
a petition under Article 32 of the Constitution of India since
s such withdrawal does not amount to res judicata, the
remedy under Article 226 of the Constitution of India
should be- deemed to have been abandoned by the
petitioner in respect of the cause of action relied on in the
writ petition when he withdraws it without such permission".
C (empnasis supplied)
r
52. On the facts of the case, however, we are unable to •
I

uphold the argument on behalf of the workmen that the Com-
pany did not want to prosecute the petitions and had given up
D its claim against the order passed by the Labour Court and
confirmed by the Industrial Court. The record reveals that the
Company filed one writ petition against one employee which
was registered as Writ Petition No. 3060 of 2005. It also filed
another petition against the remaining employees (236) which
was registered as Writ Petition No. 3471 of 2005. Since the
E other petition was against several employees, the Registry of
the High Court raised an objection that it was under 'defect'. It
was, therefore, not placed for admission-hearing. In an order,
dated October 3, 2005, the Court noted that the learned coun-
sel for the Company prayed for time "to remove the defects
F pointed by the office". The prayer was granted. It also app~ars
that according to the Registry, there were practical difficulties
and logistic problems since the petition was against more than
200 employees. The learned counsel for the Company, there-
fore, on December 14, 2005, did not 'press' the petition and
G petition was accordingly dismissed 'as not pressed'. The said
order was passed on December 14, 2005. Immediately there-
after, in January, 2006, separate petitions were filed by the
Company against the workmen. It is thus clear that it was not a
case of abandonment or giving up of claim by the Company.
H But, in view of office objection, practical difficulty and logistic prob-
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 277
CEMENT ETC. [C.K. THAKKER, J.]

lem, the petitioner Company did not proceed with an 'omnibus' A
and composite petition against several workmen and filed sepa-
rate petitions as suggested by the Registry of the High Court.
53. There is an additional reason also for coming to this
conclusion on the basis of which it can be said that the Com-
pany was prosecuting the matter and there was no intention to B
leave the matter. As is clear, Writ petition No. 3060 of 2005
which was filed against one employee was very much alive and
was never withdrawn/' note pressed'. If really the Company
wanted to give up the claim, it would have withdrawn that peti-
tion as well. Thus, from the circumstances in their entirety, we
c.
hold that the objection raised by the learned counsel for the
workmen has no force and is rejected.
MAINTAINABILITY OF CLAIM PETITIONS
i 54. The learned counsel for the Company contended that D
the courts below committed an error in not deciding the issue
as to maintainability of claim petitions as preliminary issue and
in rejecting the prayer of the Company. It was submitted that the
workmen accepted the scheme, received the payment there-
under and separated from the Company. The relationship of E
master and servant came to an end on acceptance of voluntary
retirement and payment of dues thereunder. It was thereafter
not open to them to invoke the provisions of the Act by institut-
ing claim petitions. The relationship of master and servant is
-'< sine qua non or condition precedent for the exercise of power F
under the Act by the Labour Court. It is thus a 'jurisdictional fact'
or 'preliminary fact' which must exist before a Court assumes
jurisdiction to entertain, deal with and decide the claim.
55. A 'jurisdictional fact' is one on existence of which de-
pends jurisdiction of a Court, Tribunal or an Authority. If the juris- G
dictional fact does not exist, the Court or Tribunal cannot act. If
an inferior Court or Tribunal wrongly assumes the existence of
such fact, a writ of certiorari lies. The underlying principle is that
by erroneously assuming existence of jurisdictional fact, a sub-
ordinate Court or an inferior Tribunal cannot confer upon itself H
278 SUPREME COURT REPORTS [2008] 10 S.C.R.

A jurisdiction which it otherwis~ does not possess.
56. The counsel referred to a recent decision of this Court
in Arun Kumar v. Union of India, (2007) 1 SCC 732. Speaking
for the Court, one of us (C.K. Thakker, J.) observed:

B "A 'jurisdictional fact' is a fact which must exist before a Court,
Tribunal or an Authority assumes jurisdiction over a particular
matter. A jurisdictional fact is one on existence or non-
existence of which depends jurisdiction of a court, a tribunal
or an authority. It is the fact upon which an administrative
c agency's power to act depends. If the jurisdictional fact does
not exist, the court, authority or officer cannot act. If a Court
or authority wrongly assumes the existence of such fact, the
order can be questioned by a writ of certiorari. The underlying
principle is that by erroneously assuming existence of such
jurisdictional fact, no authority can confer upon itself jurisdiction
D
which it otherwise does not posses".
57. It was further observed:
"The existence of jurisdictional fact is thus sine qua non
or condition precedent for the exercise of power by a
E court of limited jurisdiction".
58. Drawing the distinction between 'jurisdictional fact' and
'adjudicatory fact', the Court stated:
"[l]t is clear that existence of 'jurisdictional fact' is sine qua
F non for the exercise of power. If the jurisdictional fact exists,
the authority can proceed with the case and take an
appropriate decision in accordance with law. Once the
authority has jurisdiction in the matter on existence of
'jurisdictional fact', it cari decide the 'fact in issue' or
G 'adjudicatory fact'. A wrong decision on 'fact in issue' or on
'adjudicatory fact' would not make the decision of the
authority without jurisdiction or vulnerable provided essehtial
or fundamental fact as to existence of jurisdiction is present".
. I
59. The principle was reiterated in Carona Ltd. v. Parvathi
H
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 279
CEMENT ETC. [C.K. THAKKER, J.]

Swaminathan & Ors., (2007) 1 SCC 559. A
60. The learned counsel for the workmen, on the other hand,
supported the view taken by the Courts below. He submitted
that the issues sought to be raised by the Company are mixed
issues of law and fact. It is the allegation of the workmen that
they had not voluntarily accepted the scheme but they were com- 8 ·
pelled to accept it under duress and coercion. Moreover, it is
their case in the claim petitions that they were not paid full amount
even under the scheme. They, therefore, did not cease to be
workmen of the Company and the relationship of master and
servant between the parties continued. If it is so,~an action not C
allowing them to work would amount to termination of service
or removal from employment. In that eventuality, remedy under
Section 31 of the Act is available and accordingly they had filed
claim petitions. The question will have to be decided by the
Labour Court on the evidence adduced by the parties and the D
issue as to mai~tainability cannot be decided in isolation and
as preliminary issue as suggested by the Company.
61. It was also submitted that this Court has held that statu-
tory Tribunals must decide all issues raised by the parties. This
is particularly true to industrial disputes. Strong reliance was E
placed on D.P Maheshwari v. Delhi Administration, (1983) 4
SCC 293. Dealing with a similar argument, this Court said:
"There was a time when it was thought prudent and wise
policy to decide preliminary issues first. But the time F
appears to have arrived for a reversal of that policy. We
think it is better that tribunals, particularly those entrusted
with the task of adjudicating labour disputes Where delay
may lead to misery and jeopardise industrial peace, should
decide all issues in dispute at the same time without trying G
some of them as preliminary issues. Nor should High
Courts in the exercise of their jurisdiction under Article
226 of the Constitution stop proceedings before a Tribunal
so that a preliminary issue may be decided by them.
Neither the jurisdiction of the High Court under Article 226 H
280 SUPREME COURT REPORTS (2008] 10 S.C.R.

A of the Constitution nor the jurisdiction of this Court under
Article 136 may be allowed to be exploited by those who
can well afford to wait to the detriment of those who can
ill afford to wait by dragging the latter from Court to Court
for adjudication of peripheral issues, avoiding decision
B on issues more vital to them. Article 226 and Article 136 ·
are not meant to be used to break the resistance of
workmen in this fashion. Tribunal~ and Courts who are
requested to decide preliminary questions must therefore
ask them selves whether such threshold part-adjudication
I is really necessary and whether it will not lead to other
c
woeful consequences. After all tribunals like Industrial
Tribunals are constituted to decide expeditiously special
kinds of disputes and their jurisdiction to so decide is not
Jo be stifled by all manner of preliminary objections
journeyings up and down. It is also worth while remembering
D
that the nature of the jurisdiction under Article 226 is
supervisory and not appellate while that under Article 136
is primarily supervisory but the Court may exercise all
1iecessary appellate powers to do substantial justice. In
the exercise of such jurisdiction neither the High Court
E nor this Court is required to be too astute to interfere with
the exercise of jurisdiction by special tribunals at
interlocutory stages and on preliminary issues".
(emphasis supplied)
.,.,
F 62. Reference was also made to S.K. Verma v. Mahesh
Chandra & Anr, (1983) 4 SCC 214. In that case, this Court
commented that there appears to be three preliminary objec-
tions which have become quite the fashion to be raised by all
employees. Firstly, there is no industry. Secondly, there is no
G industrial dispute. Thirdly, the workman is 'no workman'.
63. The attention of the Court was also invited to National
Council for Cement & Building Materials v. State of Haryana,
( 1996) 3 SCC 306, wherein the Court deprecated the practice
of the management to raise preliminary issues with ·= ·•~w to
H
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 281
.CEMENT ETC. [C.K. THAKKER, J.]
}
delay adjudication of industrial disputes. A
64. In our considered opinion, in the present case, it can-
not be said that the Courts below have committed any error of
jurisdiction in not deciding the issue as to the maintainability of
claim-petitions as preliminary issue. It is well settled that gener-
+ ally, all issues arising in a suit or proceeding should be tried to- B
gether and a judgment should be pronounced on those issues.
65. Before more than hundred years, the Privy Council in
Tarakant v. Puddomoney, (1866) 10 MIA 476, favoured this
approach. c
66. Speaking for the Judicial Committee, Lord Turner
stated:
"The Courts below, in appealable cases, by forbearing
from deciding on all the issues joined, not infrequently
D
oblige this Committee to recommend that a cause be
remanded which might otherwise be finally decided on
appeal. This is certainly a serious evil to the parties litigant,
as it may involve the expense of a second appeal as well
as that of another hearing below. It is much to be desired,
therefore, that in appealable cases the Courts below E
should, as far as may be practicable, pronounce their
opinions on all the important points".
(emphasis supplied)
67. The above principle has been consistently followed. F
This Court dealing with the provisions of Order XIV Rule 2 (prior
to the amendment Act of 1976), in Major S.S. Khanna v.
Brigadiar FJ. Dillion, (1964) 4 SCR 409, stated;
"Under Order 14 Rule 2, Code of Civil Procedure, where G
issues both of law and of fact arise in the same suit, and
the Court is of opinion that the case or any part thereof
may be disposed of on the issues of law only, it shall try
those issues first. and for that purpose may, if it thinks fit,
postpone the settlement of the issues of fact until after the
H
282 SUPREME COURT REPORTS [2008] 10 S.C.R.

A issues of law have been determined. The jurisdiction to try
issues of law apart from the issues of fact may be exercised
only where in the opinion of the Court the whole suit may
be disposed of on the issues of law alone, but the Code
confers no jurisdiction upon the Court to try a suit on mixed
B issues of law and fact as preliminary issues. Normally all t
the issues in a suit should be tried by the Court; not to
do so, especially when the decision on issues even of
law depend upon the decision of issues of fact, would
result in a lop-sided trial of the suif'.
c (emphasis supplied)
68. The Law Commission also considered the question
and did not favour the tendency of deciding some issues as
preliminary issues. Dealing with Rule 2 of Order XIV-(before
the amendment), the Commission stated;
0
"This rule has led to one difficulty. Where a case can be
disposed of on a preliminary point (issue) of law, often the
courts do not inquire into the merits, with the result that when,
on an appeal against the finding on the preliminary issue the
E decision of the Court on that issue is reversed, the case has
to be remanded to the Court of first instance for trial on the
other issues. This causes delay. It is considered that this
delay should be eliminated, by providing that a court must
give judgment on all issues, excepting, of course, where
F the Court finds that it has no jurisdiction or where the suit is
barred by any law for the time being in force".
(emphasis supplied)
69. Apart from the fact that the provisions of Code do not
G stricto sensu apply to 'industrial adjudication', even under the
Code, after the Amendment Act, 1976, the normal rule is to
decide all the issues together in a civil suit. In the case on hand,
the contention of the workmen is that the acceptance of the
scheme was not with free consent, and even otherwise they
H were not given all the benefits to which they were entitled under
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 283
CEMENT ETC. [C.K. THAKKER, J.]
)
the scheme. Therefore, they continued to remain employees of A
the Company. The Labour Court felt that the controversy raised
by the workmen can only be decided in the light of the evidence
before it. The said decision has been confirmed by the Indus-
trial Court as well as by the learned Single Judge. We find no
t illegality in this approach which deserves interference under B
Article 136 of the Constitution. We, therefore, see no substance
in the contention of the Company.
OPTION FOR RETIREMENT: WHETHER VOLUNTARY?

70. The learned counsel for the Company contended that c
the workmen had opted for and accepted voluntary retirement
under the scheme floated by the employer and had received all
the benefits thereunder. Thereafter it was not open to them to turn
round and challenge the action of the Company. The workmen
-1 cannot 'blow hot and cold', 'fast and loose' or 'approbate and
D
reprobate'. The counsel, in this connection, referred to a number
of decisions on the general principle of estoppel as also cases
relating to acceptance of voluntary retirement by employees.
71. The learned counsel for the workmen urged that the
case of the employees was that they had not opted for the E
scheme and the 'so called' voluntary retirement is no retirement
in the eye of law. The phrase 'voluntary retirement scheme' it-
self presupposes that acceptance of retirement should be volun-
tary and must have been opted by employees with 'free consent' .
.(
The counsel submitted that the workmen never accepted the F
scheme with free consent but it was thrust upon them and under
compulsion, duress and coercion, they were forced to submit to
the illegal action of the Company. That was the reason for the
workmen to approach Labour Court by filing claim petitions.
72. We would have gone into the larger question had it been G
decided by the Courts below in the light of the decisions of this
Court. But as stated above, in the present appeals, we are not
called upon to consider the merits of the matter. The claim peti-
tions are pending before the labour Court. The present proceed-
ings are against interlocutory orders. Any observation, one way or H
284 SUPREME COURT REPORTS [2008] 10 S.C.R.

A· the other, may cause prejudice to one or the other party. We, there-
fore, refrain from entering into allegations and counter-allegations
by granting liberty to both the parties to raise all contentions avail-
able in law. We also direct the Labour Court to consider the matter
on merits and pass an appropriate order in consonance with law.
B ORDER 'TO REFUND AMOUNT
73. The learned counsel for the workmen contended that
the order passed by the Division Bench of High Court directing
refund of amount received by the workmen to the Company was
c illegal, unlawful and without jurisdiction. It wa.s submitted that
once the Court held that intra court appeals instituted by the
Company were not maintainable, it ought to have dismissed
them without passing any order as to refund.
74. The Division Bench, in paragraph 7, stated;
D
"Learned counsel has further submitted that the respondent-
employee is estopped from challenging the VRS and
seeking reinstatement as the employee has already
pocketed the money and received the other benefits in
accordance with the said Scheme. Since the employees
E who have approached the Labour Court claiming that by
deceitful means or coercion, they were made to accept
the voluntary retirement and received the benefit
thereunder, it would be equitable to direct that any employee
who wants to maintain a petition under Section 31 (3) of
F the M.P.l.R. Act against the said VRS and to seek
reinstatement, should return the benefits received to the
employer, subject to the condition and undertaking as
offered by the learned counsel fort he appellant, that in the
event, the Labour Court refund of the amount and other
G benefits to the employee concerned, the same would be
restored to the employee with interest at the rate of six per
cent per annum. It is made clear that the Labour Court
shall decline to proceed with the application of the
employee who does not refund the amount to the employer
H as hereinabove directed. The l~arMed ::Counsel for the
' ... ·'. ·.
...

RAMESH CHANDRA SANKLA ETC. v. VIKRAM 285
CEMENT ETC. [C.K. THAKKER, J.]

respondents has no objection to the benefits being ·A
refunded to the employer during the pendency of the case
before the Labour Court subject to the result of the case".
75. The learned counsel in this connection referred to a ·
leading decision of this Court in Kiran Singh v. Chaman ·
Paswan, (1955) 1 SCR 117. Dealing with the provisions of 8
Code of Civil Procedure, 1908 and jurisdiction of Civil Courts,
this Court stated;
"It is fundamental principle well established that a decree
passed by a court without jurisdiction is a nullity, and that c
its invalidity could be set up whenever and wherever it is
sought to be enforced or relied upon, even at the stage of
execution and even in collateral proceedings. A defect of
;urisdiction ... strikes on the very authority of the court to
pass any decree, and such a defect cannot be cured
0
even by consent of parties."
(emphasis supplied)
76. Reference was also made to a recent decision of this
Court in Harshad Chiman Lal Modi v. DLF Universal Ltd. &
Anr., (2005) 7 SCC 791. Referring to Kiran Singh as also sev- E
eral other decisions, it was held by this Court that if the Court
has no jurisdiction to entertain a particular claim or matter, nei-
ther acquiescence nor express consent of the parties can con-
fer jurisdiction upon it. An order passed by a Court having no
jurisdiction is nullity and non est. It was submitted that even F
otherwise the learned Single Judge was right in not issuing an
order for refund of amount.
77. The learned counsel for the Company, submitted that
the direction of refund of amount is proper,· fair and in conso- G
nance with principles of justice, equity and good conscience. If
the case of the workmen is that they had never accepted retire-
ment voluntarily; that it was imposed upon them under duress
and they were forced to receive payment under Voluntary Re~
tirement Scheme under pressure, compulsion or coercion and H
286 SUPREME COURT REPORTS [2008] 10 S.C.R..

A were constrained to approach Labour Court asserting that they
continued to be workmen of the Company, it was expected of
them even in absence of any order or direction to refund the
amount received by them. They could not have resiled from the
position by retaining the benefits which they never wanted but
B were thrust upon them against their will. The workmen could not t
have best of both the worlds, i.e. to contend that they are still
workmen of the Company but at the same time, they would not
part with the amount received by them for leaving the Company
for ever. The High Court, balancing 'equity between the parties,
c issued direction to return the amount received under the scheme
which calls for no interference by this Court in exercise of equi-
table jurisdiction under Article 136 of the Constitution.
78. It was also submitted that even if it is held that Letter Patent
Appeals were not maintainable, the Company has approached
D this Court and considering that circumstance also, the direction ).... t

may be upheld if the Court is of the view that Claim Petitions filed
by the workmen should be considered on merits and should be
decided by Labour Court in accordance with law. The counsel also
submitted that when the claims were lodged by the workmen, they
E themselves had stated that they were ready and willing to refund
the amount which they had received under the 'purported' Volun-
tary Retirement Scheme. It was, therefore, submitted that the or-
der as to refund of amount needs no interference.
r'
79. Since we have held that the decision of the Labour
F ~
Court, confirmed by the Industrial Court as well as by the High
Court in not deciding issues Nos. 4(a), 4(b) and 4(c) as prelimi-
nary issues cannot be said to be illegal or contrary to law and
those issues will be decided by the Labour Court along with
other issues on merits, the Labour Court will consider whether
G the Company was right in contending that the workmen accepted
retirement voluntarily and there was cessation of relationship of
master and servant between them and the Claim Petitions were
not maintainable. In the circumstances, it would not be proper
for this Court to express any opinion at this stage on merits. A
H short question which remains to be considered is whether on the
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 287
CEMENT ETC. [C.K. THAKKER, J.]

facts and in the circumstances of the case, the direction of the A
High Court can be said to be unjust, unfair or unreasonable?
80. Now, it is well settled that jurisdiction of High Courts
under Articles 226 and 227 is discretionary and equitable.

. Before more than half a century, the High Court of Allahabad in
the leading case of Jodhey v. State, AIR 1952 All 788 observed; B

"There are no limits, fetters or restrictions placed on this
power of superintendence in this clause and the purpose
of this Article seems to be to make the High Court the
custodian of all justice within the territorial limits of its c
jurisdiction and to arm it with a weapon that could be
wielded for the purpose of seeing that justice is meted
out fairly and properly by the bodies mentioned therein."
(emphasis supplied)
D
81. The power of superintendence under Article 227 of
the Constitution conferred on every High Court over all courts
and tribunals throughout the territories in relation to which it ex-
ercises jurisdiction is very wide and discretionary in nature. It
can be exercised ex debito justitiae, i.e. to meet the ends of
justice. It is equitable in nature. While exercising supervisory E
jurisdiction, a High Court not only acts as a court of law but also
as a court of equity It is, therefore, power and also the duty of
the Court to ensure that power of superintendence must 'ad-
vance the ends of justice and uproot injustice'.
~ F
82. In Roshan Deen vs. Preeti Lal, (2002) 1 SCC 100, deal-
ing with an order passed by the High Court setting aside an order
of Commissioner for Workmen's Compensation, this Court stated;
"Time and again this Court has reminded that the power
conferred on the High Court under Article 226 and 227 of G
the Constitution is to advance justice and not to thwart it.
The very purpose of such constitutional powers being
conferred on the High Courts is that no man should be
subjected to injustice by violating the law. The look out of the
High Court is, therefore, not merely to pick out any error of H
288 SUPREME COURT REPORTS [2008] 10 S.C.R.

A law through an academic angle but to see whether injustice • 1,
'
has resulted on account of any erroneous interpretation of
law. If justice became the byproduct of an erroneous view ,___
of law the High Court is not expected to erase such justice i

in the name of correcting the error of law'.
'
I
B (emphasis supplied)
'
83. In Gadde Venkateswara Rao v. Government of Andhra
Pradesh & Ors., (1966) 2 SCR 172, a Primary Health Centre
was formerly inaugurated at village 'A' subject to certain condi-
c tions. Since those conditions were not satisfied, it was resolved
by Panchayat Samithi to shift it to village 'B'. The Government
set aside the said resolution without giving notice to the Samithi.
).
Subsequently, _however, the Government reviewed the said or-
der without giving opportunity of being heard to the affected
persons. The action was challenged in the High Court. The
D ~
High Court held that the order passed by the Government on
review was bad. It, however, did not interfere with the order on
merits. In this Court it was contended that an order passed on
review by the Government was illegal since no opportunity of
hearing was afforded and the High Court was wrong in not set-
E ting aside the said order. This Court, however, did not interfere
with the order passed by the High Court observing that "if the
High Court had quashed the order passed by the Government,
it would have restored an illegal order and would have given the
Health Centre to a village contrary to the valid resolutions passed ,_
F by the Panchayat Samithi". In the opinion of this Court, there-
fore, the High Court was right in refusing to exercise discretion-
ary power in the circumstances of the case.
84. In Commissioner of Income Tax, Madras v. Vinod Kumar
Didwania, AIR 1987 SC 1260, certain prohibitory orders under the
G
Income Tax Act, 1961 were passed against the assessee in con-
nection with removal of goods. By filing a petition under Article 226
of the Constitution, the assessee challenged the legality of those
orders. He obtained ex parte interim injunction, removed the goods
and thereafter withdrew the petition. The Revenue challenged the
H
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 289
CEMENT ETC. [C.K. THAKKER, J.]

said action by approaching this Court. The Court held that the as- A
sessee had abused the process of law and he could not be allowed
to retain undue benefit received by him.
85. In Chief Settlement Commissioners v. Ram Singh,
(1987) 1 SCC 612, this Court held that an order of allotment of
land in excess of lawful entitlement does not allow such allottee B
to insist that excess land should not be taken away from him.
86. In Mohammad Swalleh v. Third Additonal District Judge,
Meerut, (1988) 1 sec 40, an erroneous order was passed by the
Prescribed Authority refusing to grant eviction of the tenant under
the relevant law. It was set aside by the District Court in appeal C
though no such appeal was maintainable. When the matter reached
this Court, the Court refused to interfere with the order since jus-
tice had been done "though technically the appellant had a point
that the order of the District Judge was illegal and improper".
87. The learned counsel for the Company placed heavy reli- D
ance on Shangrilla Food Products Ltd. v. Life Insurance Corpo-
ration of India, (1996} 5 sec 54. In a suit by A, an order was
passed by the Estate Officer against B holding that it was in unau-
thorized occupation and was liable to be evicted under the Public
Premises (Eviction of Unauthorised Occupants) Act, 1971. He E
also ordered B to pay damages of Rs. 12 lakhs. An appeal was
filed by B against the order and the Appellate Authority confirmed
the order of eviction. The High Court, however, felt that an oppor-
tunity ought to have been afforded to B to prove that it was a lawful
sub-tenant. The matter, therefore, required remand. At that stage, F
A prayed that in that case, the matter be remanded as a whole to
be decided afresh considering the question of payment of rent/
damages also. The High Court upheld the plea, negativing the
contention of B that A had never challenged the order setting aside
the direction as to payment of damages. B approached this Court. G
88. Dismissing the appeal, confirming the order of the High
Court and adverting to substantial justice, this Court stated;

"It is well-settled that the High Court in exercise of its
jurisdiction under Article 226 of the Constitution can take
H;
290 SUPREME COURT REPORTS [2008] 10 S.C.R.

A cognizance of the entire facts and circumstances of the
case and pass appropriate orders to give the parties
complete and substantial justice. This jurisdiction of the
High Court, being ·extraordinary, is normally exercisable
keeping in mind the principles of equity. One of the ends
B of the equity is to promote honesty and fair play. If there be
any unfair advantage gained by a party priorly, before
invoking the jurisdiction of the High Court, the court can
take into account the unfair advantage gained and can
require the party to shed the unfair gain before granting
relief. What precisely has been done by the learned Single
c Judge, is clear from the above emphasised words which
be re-read with advantage. The question of claim to
damages and their ascertainment would only arise in the
event of the Life Insurance Corporation, respondent,
succeeding to prove that the appellant Company was an
D unlawful sub-tenant and therefore in unauthorised
occupation of public premises. If the finding were to go in
favour of the appellant Company and it is proved to be a
lawful sub-tenant and hence not an unauthorised occupant,
the direction to adjudge the claim for damages would be
rendered sterile and otiose. It is only in the event of the
E
appellant Company being held to be an unlawful sub-tenant
and hence an unauthorised occupant that the claim for
damages would be determinable. We see therefore no
fault in the High Court adopting such course in order to
balance the equities between the contestants especially
F when it otherwise had power of superintendence under
Article 227 of the Constitution in addition. We cannot be
oblivious to the fact that when the occupation of the
premises in question was a factor in continuation the liability
to pay for the use and occupation thereof, be it in the form
G of rent or damages, was also a continuing factor. The cause
of justice, as viewed by the High Court, did clearly warrant
that both these questions be viewed inter-dependently. For
those who seek equity must pow to equity".
(emphasis supplied)
H
RAMESH CHANDRA SANKLA ETC. v. VIKRAM 291
CEMENT ETC. [C.K. THAKKER, J.]

89. From the above cases, it clearly transpires that pow- A
ers under Articles 226 and 227 are discretionary and equitable
and are required to be exercised in the larger interest of jus-
tice. While granting relief in favour of the applicant, the Court
must take into account balancing interests and equities. It can
t mould relief considering the facts of the case. It can pass.an B
appropriate order which justic·e m·ay demand and equities may
project. As obser\/ed by this Court in Shiv Shankar Dal Mills v.
State of Haryana, (1980) 1 SCR 1170, Courts of equity should
go much further both to give and refuse relief in furtherance of
public interest. Granting or withholding of relief may properly c
be dependent upon considerations of justice, equity and good
conscience.
90. In our considered opinion, taking into account facts
and circumstances in their entirety, the order passed and di-
rection issued by the Division Bench of the High Court was in D
furtherance of justice. Not only it has not resulted in miscarriage
of justice, in fact it has attempted to put status quo ante by bal-
ancing interests and leaving the matter to be decided by a Com-
petent Authority in accordance with law.
91. Even otherwise, according to the workmen, they were E
compelled to accept the amount and they received such amount
under coercion and duress. In our considered opinion, they can-
not retain the benefit if they want to prosecute Claim Petitions
)
instituted by them with the Labour Court. Hence, the order
passed by the Division Bench of the High Court as to refund of F
amount cannot be termed unjust, inequitable or improper. Hence,
even if it is held that a 'technical' contention raised by the work-
men has some force, this Court which again exercises discre-
tionary and equitable jurisdiction under Article 136 of the Con-
stitution, will not interfere with a direction which is in consonance G
with the doctrine of equity. It has been rightly said that a person
"who seeks equity must do equity". Here the workmen claim
benefits as workmen of the Company, but they do not want to
part with the benefit they have received towards retirement and
severance of relationship of master and servant. It simply can- H
292 SUPREME COURT REPORTS [2008] ,10 S.C.R.

A not be permitted. In our judgment, therefore , the final direction
issued by the .Division Bench needs no interference , particu-
larly when the Company has also approached this Court under
Article 136 of the Constitution .
92 . For the foregoing reasons, in our opinion, the order
8 passed by the Div.ision Bench of the High Court deserves to be
confirmed and is hereby confirmed. The payment which is re-
quired to be made as per the said order should be made by the
applicants intending to prosecute their claims before the Labour
Court, Mandsour. In view of the fact, however, that the said pe-
e riod i~ by now over, ends of justice would be served if w~ ex-
tend the time so as to enable tt}e applicants to refund the amount.
We, therefore, extend the time up to December 31, 2008 to
make such payment. We may, however, clarify that Claim Peti-
tions will not be proceeded with till such payment is made. If
D the payment is not made within the period stipulated above, the
Claim Petitions of those applicants will automatically stand dis-
missed. The Labour Court will take up the claim petitions after
December 31, 2008.
93. Before parting with the matter, we may clarify that we
·E have not expressed any opinion on the merits of the case one
way or the other. And as and when the matter will come up be-
fore the labour Court, Mandsour, (if the conditions referred to
above have been complied with and refund of payment is made),
the Labour Court will consider the Claim Petitions on their own
F merits without being influenced by any observations made in
this judgment. All contentions of all parties including the conten-
tion as to maintainability or otherwise of Claim Petitions are
kept open . Civil Appeals stand disposed of accordingly. On the
facts and in the circumstances of the case, however, there shall
G be no order as to costs all throughout.
S.K.S Appeals disposed of.

H