JUDGMENT N.N. Mittal, J. - After failing in two courts below, the plaintiff has come up in second appeal assailing the decisions of the courts below. The plaintiff joined as Guard in 1947 in the Oudh Trihut Railway and after undergoing necessary training joined the service and was confirmed in 1953. In 1956 Oudh Trihut Railway was merged with the Northern Railway at the time of re-organisation of Railway System in the country. It is alleged that the appellant was allowed to cross the Efficiency Bar in 1970 but by means of a letter dated 24.5.1973 he was reverted as a Trains Clerk as he had failed to pass refresher courses despite several attempts. 2. Apart from several other grounds which do not survive any longer, the main plank of attack is that rule 152-A does not apply to the case of the plaintiff. It is also urged that in view of the Railway Board's letter dated 16.3.1974, a written test for the Guards had been abolished and as such the order of reversion was invalid. On both these points, the courts below have recorded findings against the plaintiff. For convenience sake, Rule 152-A may be extracted here: "Station Masters, Assistant Station Masters, Switchmen, Cabinmen, Guards and Drivers, who are employed in train passing duties/train operation shall be required to pass the appropriate examination in these subjects at the end of the periodical refresher course. Failure to pass the said examination shall be deemed to be a good and sufficient reason for taking action under the Disciplinary rule for the time being applicable to such staff." It is contended that firstly the appellant as a Guard was not employed either in train passing duty or in train operation. It is also contended that since the plaintiff had been employed in 1947 and the relevant rule was inserted in 1956, it should not apply retrospectively to him. Both these contentions, however, must fail. Learned counsel has tried to take me through several clauses of General subsidiary rules in order to show the definition of Guard and the duties assigned to the various functionaries in the Railway. It is admitted that train operating and train passing duties have not been defined either in the Indian Railways Act or in any other code or Rules. Learned counsel has tried to take me through several clauses of General subsidiary rules in order to show the definition of Guard and the duties assigned to the various functionaries in the Railway. It is admitted that train operating and train passing duties have not been defined either in the Indian Railways Act or in any other code or Rules. The argument is that the duties of a Guard do not either involve nor are connected with train passing duty or train operation. It is difficult to entertain the argument for the very nature of duty assigned to a Guard indicates that he is connected with train operation. It is urged that the Guard in only to comply with the direction of the Station Master and is not entitled to allow the train to move unless he has been so directed by the Station Master. He also cannot stop the train at the next place unless he has been permitted to enter within the jurisdiction of the said station. The entire argument, however, appears to be misplaced as it assumes that train operation involves only that staff which remains stationery at the station or in the cabin and has nothing to do with its counter - part which goes along with the train i.e. the Driver and the Guard. For operating a train, the staff, both at the station and in the cabin are necessary and together with the Driver and the Guard they would constitute the team of railway employees engaged in train operation. I am, therefore, unable to entertain the argument advanced by the learned counsel. 3. Apart from this, a reading of the Rule itself will go to show that various functionaries which are mentioned in this rule have been specifically designated as employed in train passing duties and with train operation. The whole import of the Rule is that these particular functions arise as mentioned therein are employed for train operation/train passing duties and must pass the appropriate examination after undergoing periodical refresher course in their respective fields. 4. It would also be incorrect to say that the Rule when applied to the appellant was retrospective in application. The Rule has been designed to apply to all Station Masters and others as specified in the rule as were in employment of the Railway when this rule was introduced but it has only prospective operation. 4. It would also be incorrect to say that the Rule when applied to the appellant was retrospective in application. The Rule has been designed to apply to all Station Masters and others as specified in the rule as were in employment of the Railway when this rule was introduced but it has only prospective operation. These functionaries were required to undergo refresher course and to pass it only after the introduction of the Rule and not at any time prior to it. The Rule is thus prospective in operation and has been applied only prospectively and not with a retrospective effect. 5. In this connection, it was further argued that the only effect of failing to pass the examination after the refresher course was to enable the Railway authorities to take such action against him as may be open to it under the Disciplinary Rules. It is conceded that the appellant did undergo the refresher course several times and on each occasion he failed to pass the examination. In the circumstances, the Railway authorities would certainly be entitled to proceed against him under the Disciplinary Rules. However, before doing that a letter was written to the plaintiff making two alternative offers to him i.e. either to accept an alternative job as a trains clerk or if he declines the post offered, then face proceedings according to the Rules. Receipt of this letter and joining of duty as trains clerk pursuant to it are admitted to the appellant but what he contends is that he did so "without prejudice" to his rights. In view of this it is urged that Rule 152-A has not been complied with as no disciplinary proceedings had been taken against him once he had joined duties as Trains clerk in the lower grade. This, according to the appellant, tantamounts to inflicting of punishment on him as he was put in the lower grade in violation of Article 311 of the Constitution. 6. Much argument has been advanced by the learned counsel for the appellant on the question that the offer made by the Railway authorities had not been accepted by the plaintiff without any reservation and had qualified it with the expression that it was "without prejudice" to his rights. 6. Much argument has been advanced by the learned counsel for the appellant on the question that the offer made by the Railway authorities had not been accepted by the plaintiff without any reservation and had qualified it with the expression that it was "without prejudice" to his rights. According to him when the letter was so qualified, the same cannot be taken advantage of by the Railway authorities and his rights remained totally protected despite the fact that he had joined the duty as a trains clerk. It, therefore, becomes necessary to examine as to what is the effect of such an expression. 7. In Y.S. Venkata Subbiah Chetty v. A. Subba Naidu and others, 31 IC 152, the learned Judges of the Madras High Court were dealing with letters prefixed by words "without prejudice". It held that when used in connection with an actual or impending litigation, these words have the well known meaning which is quite inapplicable to their use in these documents. They proceeded further to say thus: "It is quite true that when a man makes an offer without prejudice, the effect is to prohibit the reading of the letter if the offer is not accepted. But the actual meaning of the words in such a case is thus, "I am making an offer which I do not admit I am bound to make and I make it without prejudice to my existing legal rights". 8. The expression is meant to express that the person sending the letter would not be bound with the offer made by him and should not be used as his admission. The decided case and some British authorities have dealt with this matter in detail and from this it can be said that the use of the expression "without prejudice" has been allowed to infiltrate negotiations for the purpose of effecting settlement with the rival legal rights and a special privilege is granted to them by the courts by not allowing such documents to be used against a party who makes an attempt to reach a negotiated settlement without having to incur the prospect of its offer being used against him. just as a compromise is recognised as the essence of business, so the law has also favoured the attempt by the parties to compose their differences without having to press their dispute to an issue in court. just as a compromise is recognised as the essence of business, so the law has also favoured the attempt by the parties to compose their differences without having to press their dispute to an issue in court. If such a protection is not granted, it would be impossible for the disputing parties to frame the terms or to carry through the negotiations for a mutual settlement. In order to avoid litigation, it has always been regarded as important that the door to compromise should not be shut which must necessarily be the case if letters constituting the basis of negotiations are not given the desired protection under law. 9. The essence of protection so granted is that if the negotiations carried on by letters do not result in an agreement, nothing in them is to be treated as an admission. If an agreement results, the protection is gone. At the same time, the courts have tried to be careful in preventing the privilege being abused and have not permitted its legitimate use as a cloak to cover wrongful acts independently of pending negotiations. Thus a debtor who writes to his creditor headed "without prejudice" he cannot extend as threat to him either to agree to the terms offered or he would suspend payment of his debts, in order to avoid bankruptcy proceedings against him. In fact what the courts protect in such a case is a genuine offer to arrive at a negotiated agreement without having to go to the court but this is not without exceptions. 10. The various cases also reveal that normally it is the person who makes the offer who can utilise the protection by heading it as "without prejudice" and that is limited to the purpose of negotiation. In other respects, such a heading cannot protect the parties in all and every circumstances. Apart from this, the protection is gone once the offer has been accepted. 11. In this case, an alternative offer was made by the Railway authorities to the plaintiff in order to avoid the disciplinary proceedings and it was for the plaintiff to either accept or refuse to accept the same. While accepting one of the offers made by the Railway, the plaintiff cannot bank upon the other provision of the rule, the proceedings under which he had himself prevented by accepting one of the offers. While accepting one of the offers made by the Railway, the plaintiff cannot bank upon the other provision of the rule, the proceedings under which he had himself prevented by accepting one of the offers. The plaintiff cannot, therefore, take advantage of the offer and at the same time question the legality of the order passed. It would both be mala fide, immoral and inequitable. I cannot, therefore, accept the appellant's submission in this behalf. 12. In my opinion, it is not now open to the appellant to challenge the validity of action taken under Rule 152-A on the ground that despite acceptance of the post by him the Railway authorities should also have taken disciplinary proceedings against him before reverting-him to the post of a trains clerk. In this case, no element of punishment is at all involved. In fact it is a case of a fair offer being made to the appellant and on accepting the same, he cannot turn around to question its legality. Before Article 311 can apply the action complained of must be by way of punishment and where it was not so, no advantage of that Article can be taken. 13. Apart from this, my attention has been drawn to a circular of the Railway Board dated 10.12.1959 according to which this course of offering an alternative post had to be adopted on the same lines as is to be done in the case of an employee who becomes physically unfit and medically decategorised. In these circumstances, the course adopted in appellant's case was the only legal mode. A faint effort was also made to urge that the appellant was allowed to cross the efficiency bar in 1970 and soon there after action under Rule 152-A has been taken against him. Allowing to cross the efficiency bar and taking action under Rule 152-A are two independent and unconnected matters. Even if the appellant had been allowed to cross the efficiency bar in 1970 it cannot prevent the Railway Authorities for taking action against him if after undergoing refresher course, he failed to pass the examination on its completion. Merely crossing the efficiency bar, in 1970 cannot absolve the appellant from under going the refresher course successfully if so required by the rules. In my view, therefore, despite crossing the efficiency bar, action under Rule 152-A could still be taken. Merely crossing the efficiency bar, in 1970 cannot absolve the appellant from under going the refresher course successfully if so required by the rules. In my view, therefore, despite crossing the efficiency bar, action under Rule 152-A could still be taken. In view of what I have said, none of the grounds urged before me can succeed. 14. In the result the appeal fails and is accordingly dismissed with costs.