Dismissed

Dalal Brothers Freight Forwardrs Private Limited v. the Transport and Dock Workers Union and 2 Others

Bombay HC10 Feb 2009WP/2670/2008

Case brief

AI extract

What is this about?

The Single Judge dismissed this identical writ petition for non-prosecution, refusing to exercise discretion under Article 226 to allow a fresh application after the petitioner failed to comply with a conditional order requiring a deposit in a previously dismissed identical petition.

What did the court decide?

The writ petition is dismissed with costs fixed at Rs. 3000/- to be paid within four weeks of the order.

Dalal Brothers Freight Forwardrs Private Limited Vs… — Service and Employment | Bombay HC (2009)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION

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 WRIT PETITION NO.2670 OF 2008

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 Dalal Brothers Freight Forwarders
 Private Limited, A Private Limited
 Company incorporated under the
 Companies Act, 1956 having it’s
 Registered Office at 14, Krishna Niwas,
 2nd Floor, 281, Shahid Bhagat Singh
 Road, Fort, Mumbai-400 001. ....Petitioner
 V/s.
 1) The Transport And Dock Workers
 Union on behalf of its members
 Kiritkumar M. Gandhi, Suresh
 Jadhav and Narendra U. Mehta
 having is office at P.D’Mello
 Bhavan, P. D’Mello Road, Carnac
 Bunder, Mumbai-400 038.
 2) The Hon’ble Presiding Officer,
 Central Government Industrial
 Tribunal No.2, Shramaraksha Bhavan,
 Shiv Shrishti Road, Sion,
 Mumbai-400 022.
 3) The Regional Labour Commissioner,
 Central Government Industrial
 Tribunal No.2, Shramaraksha Bhavan,
 Shiv Shrishti Road, Sion,
 Mumbai-400 022. ....Respondents

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 Mr.J.P. Cama, Senior Counsel with Mr.Rohan Cama and
 Mr.Yusuf Iqbal i/b Yusuf & Associates for the
 Petitioner.
 Mr.S.M. Dharap with Mr.Neel Helekar for the
 Respondents.

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CORAM : S.J. VAZIFDAR, J.
DATED : 10TH FEBRUARY, 2009.
ORAL JUDGMENT :-

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 1. The Writ Petition is allowed to be amended in

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 terms of the draft tendered in Court and marked "X".
 The amendments to be carried out within two weeks from
 today.

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 2. Even assuming that I have the jurisdiction to
 entertain this Writ Petition, I am not inclined to
 exercise any discretion under Article 226 of the
 Constitution of India.

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 3(A). Admittedly, Writ Petition No.2070 of 2007
 identical to this Writ Petition was filed by the same
 Petitioner in this Court.

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 (B). By an order dated 1.10.2007, the learned
 Judge directed the Petitioner to deposit 50% of back
 wages as per the order impugned in the Writ Petition,
 failing which the Petition was directed to stand
 dismissed for non-prosecution without further
 reference to the Court. By an order dated 29.10.2007,
 the time to deposit the said amount was extended upto
 19.11.2007.

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 (C). The Petitioner challenged the said orders by
 filing Appeal No.8 of 2008 (The appeal was lodged on
 14.11.2007 but numbered only later). There was no
 stay to the order dated 1.10.2007 in the said appeal.

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 (D). During the pendency of the Appeal, the Writ
 Petition itself came up for final hearing. By an
 order dated 19.11.2007, the learned Judge held that on
 account of non-compliance of the conditional order
 dated 1.10.2007, the Petition stood dismissed.

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 (E). Appeal No.8 of 2008 was disposed of by an
 order dated 5.5.2008. The Division Bench dismissed
 the Appeal as the Writ Petition itself stood dismissed
 as held in the said order dated 17.11.2007 and the
 Appeal was filed from the earlier interim orders dated
 1.10.2007 and 29.10.2007.

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 4. The Petitioner thereafter challenged the said
 order dated 17.11.2007 by filing Appeal No.279 of
 2008. The appeal was dismissed by an order dated
 8.7.2008 on the ground that the Petitioner had failed
 to comply with the order dated 1.10.2007 read with the
 order dated 29.10.2007.

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 5. Having failed in the said Writ Petition at
 every stage, the Petitioner has filed this Writ
 Petition which admittedly is identical in every
 respect.

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 6. Mr.Cama submitted that the conditional order
 in the earlier Writ Petition could not be complied

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 with as the Petitioner was at that time facing
 financial difficulties. He submitted that the earlier
 Writ Petition and the orders passed therein do not bar
 the jurisdiction of this Court to try this Writ
 Petition.

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 7. Mr.Cama, submitted that an application for
 extension of time to deposit the amount had in fact
 been made when the order dated 19.11.2007 was passed.
 The order however does not record the same. Mr.Cama
 submits that the Petitioner is now ready to comply
 with the order dated 1.10.2007 by furnishing a bank
 guarantee or furnishing any other security to the
 satisfaction of the Prothonotary and Senior Master.
 Any application for the same ought to be made in that
 Writ Petition and certainly not in this fresh Writ
 Petition.

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 8. The Petitioner cannot be permitted to
 overcome the consequence of non-compliance of an order
 by filing another Writ Petition. An exercise of
 discretion on the part of this Court to entertain a
 fresh Writ Petition in these circumstances would,
 apart from anything else indicate a disregard for the
 orders of a Court of co-ordinate jurisdiction. In the
 present case, even the Division Bench had confirmed
 the dismissal of the Writ Petition on that ground.

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 . Exercise of discretion in the Petitioner’s

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 favour in these circumstances would lead to a logical
 absurdity if for instance an order similar to the one
 dated 1.10.2007 were to be passed again in this Writ
 Petition and the Petitioner fails to deposit the
 amount leading to the dismissal of the Writ Petition,
 the Petitioner could file yet another Writ Petition.
 This could go on ad-infinitum.

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 9. Mr.Cama relied upon a judgment of this Court
 in the case of Air Corporations Employees Union & Anr.
v. D.C. Vyas & Ors, AIR 1962, BOM. 274. Paragraph
 34 reads as under :-

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 "34. There is no substance in the
 second objection, as the petition which
 was filed on the original side was not
 dismissed on merits. Permission was
 sought for the withdrawal of that
 petition in view of the note recorded by
 the Law Minister on the 1st September,
 1960 and the petition was eventually
 dismissed for non-prosecution on the 7th
 September. The earlier petition not
 having been decided on merits, the
 dismissal thereof cannot operate a bar
 to the present petition."

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 . In this case, the Petition was dismissed for
 non-prosecution on the application for withdrawal made
 in view of the note recorded by the Law Minister. In
 the present case, it is not so. The learned Judge who
 passed the order dated 1.10.2007 placed a condition

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 and provided the consequence of the non-compliance
 thereof.

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 10. Mr.Cama, then relied upon the judgment of the
 Supreme Court in the case of B. Prabhakar Rao & Ors.
v. State of Andhra Pradesh & Co. 1985 Supp(1) SCC
432. Paragraph 29 of the judgment of Chinnappa Reddy,
 J. was relied upon. An earlier Writ Petition was
 dismissed in limine and not in the circumstances in
 which the present Writ Petition was dismissed. It is
 also not clear whether the earlier Writ Petition was
 filed by the same Petitioner. It is pertinent to note
 further that it was specifically observed that such a
 dismissal may inhibit the discretion of the Court
 though it would not bar the jurisdiction of the Court.
 As I stated earlier, in view of the facts of the
 present case, I am not even inclined to exercise my
 discretion assuming that I have the jurisdiction to
 entertain the Writ Petition.

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 . Mr.Cama then relied upon paragraphs 6 and 7
 of the judgment of Khalid, J. It is pertinent to note
 that His Lordship expressly stated in paragraph 7 that
 the important facts in that case had persuaded him to
 agree with the main judgment and to err on the side of
 justice more than that of law, invoking the benevolent
 jurisdiction under Article 142(1) of the Constitution

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 of India. The High Court does not have power under

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 Article 142.

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 11. In the circumstances, the Writ Petition is
 dismissed with costs fixed at Rs.3000/- to be paid
 within four weeks from today.

Dalal Brothers Freight Forwardrs Private Limited v. the Transport and Dock Workers Union and 2 Others

Case brief

What is this about?

What did the court decide?

Dalal Brothers Freight Forwardrs Private Limited v. the Transport and Dock Workers Union and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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