Judgment

MISRA, J. :- The present appeal by certificate is directed against the judgment dated 4th of July, 1973 of the High Court of Bombay in a Letters Patent Appeal arising out of a petition under Article 226 of the Constitution.

2. The facts leading up to this appeal lie in a narrow compass. The appellant- the Ahmedabad Manufacturing and Calico Printing Co. Ltd. (hereinafter called the Company) - is predominantly a textile manufacturer but has also factories in Bombay manufacturing heavy chemicals and engages about 750 workmen in three such factories. A dispute arose between the Company and the said workmen in respect of seventeen demands raised by them through their union. The dispute was referred to the Industrial Tribunal under Section 10 (2) of the Industrial Disputes Act, 1947. Out of the demands of the workmen the Tribunal took up for consideration only four demands, that is, demands Nos. 1, 2, 15 and 16 respectively for basic wages and adjustment, dearness allowance, gratuity and retrospective effect of the demands. The Tribunal gave its award on 30th of November 1971 and sent a copy thereof to the parties. The award was published on 20th of January, 1972 in the Maharashtra Government Gazette. Under the rules it was to be effective after one month of its publication in the Gazette.

3. The Company, feeling aggrieved by the award, filed with this Court a petition for special leave to appeal under Art. 136 of the Constitution (the leave petition, for short). Pursuant to a notice, the respondent union put in appearance and filed a counter-affidavit. It appears that after some arguments the appellant chose to withdraw the leave petition. As much turns upon the order of this Court dated 21st of August, 1972 permitting withdrawal, it would be appropriate to quote the same :

"Upon hearing counsel the Court allowed the special leave petition to be withdrawn." Four days thereafter the Company filed a petition under Art. 226 of the Constitution before the High Court challenging the award. That petition was virtually based on the same facts and grounds as were taken in the leave petition before this Court. The respondent union appeared and filed a counter-affidavit urging that the petition be dismissed in limine. A rejoinder affidavit was filed on behalf of the Company.

4. On the date of hearing three preliminary objections were raised on behalf of the union respondent. In the present appeal we are, however, concerned only with one of them, namely, that the High Court should not exercise discretion in granting relief to the Company under Article 226 of the Constitution, after the withdrawal of the leave petition unconditionally.

5. This objection prevailed with the High Court. The learned single Judge determined the circumstances on the basis of the respective affidavits filed by the parties, in which the Company unconditionally withdrew its leave petition and in view of those circumstances he equated the withdrawal of the leave petition with the dismissal of the same. Relying on Vasant Vithal Palse v. Indian Hume Pipe Co. Ltd., (1970) 2 Lab LJ 328 (Bom) he held that it was not a fit case for exercise of the Courts discretionary power to admit the writ petition and accordingly dismissed the same in limine.

6. The Company filed a Letters Patent Appeal but the Division Bench dismissed the same and confirmed the order of the learned single Judge. The preliminary objection which weighed with the High Court was repeated on behalf of the Union respondent before the Division Bench in appeal with two contentions : (1) the unconditional withdrawal by the Company of its leave petition in the circumstances found by the learned single Judge is a bar to the competence of the Court to entertain the petition under Article 226 of the Constitution. In other words, the High Court has no jurisdiction to grant rule nisi under Article 226 in view of the withdrawal of the petition under Art. 136 of the Constitution; (2) The learned single Judge has rightly