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2001 DIGILAW 322 (CAL)

Arun Kr. Ghosh v. State of West Bengal

2001-06-12

D.K.Seth

body2001
JUDGMENT D.K. Seth, J. The petitioners had applied for computation of their claim under section 33-C(2) of the Industrial Disputes Act claiming intermediate Selection Grade Scale of pay on the basis of notification No. 10303-F dated 19th February, 1974. By an order Dated 18th February, 1992 passed by the Presiding Officer, 1st Labour Court, West Bengal the said application was allowed. It is contended on behalf of the petitioners that despite the said order the respondents are not making payment in terms of the said order dated 18th of February, 1992. Therefore, by means of this writ petition the petitioners are claiming that mandamus be issued commanding the respondents to pay the benefits payable to them in terms of the said order. 2. The learned counsel for the petitioner contends that in view of the award dated 18th February, 1992 the respondents are bound to pay the monetary benefit as computed in the said order. Since the petitioners are legally entitled to it under the award and the respondents being the State within the meaning of Article 12 of the Constitution of India writ jurisdiction should be exercised by this Court to secure such payment. The objection raised by the respondents cannot be sustained in view of the fact that this court cannot go behind the award since the same has reached finality. It is no more open to the respondents to contened that the award is a nullity and that the respondents are not bound by it. He has also contened that some of the workmen who were parties to the said proceedings under section 37-C(2) have been given the benefit in terms of the said award, though however, under orders of Court. Therefore, they cannot deny same benefit to the other workmen entitled thereto. After having accepted the award it is no more open to the respondents to challenge the same. Their objection is hit by the principle of estoppel acquiescence and waiver as well as constructive res judicata. He has also cited a few decisions in support of his contention. He has relied on Newa Singh & Ors. vs. Siromani Gurdwara Prabandhak Committee, JT 1998(8) SC 503 :1999(2) SC 60; State of Rajasthan & Ors. vs. Dr. Lakshmi & Ors., 1996(6) SCC 445 and V.S. Charati vs. Hussain Nhanu Jamadar, 1991(1) SCC 273. 3. He has also cited a few decisions in support of his contention. He has relied on Newa Singh & Ors. vs. Siromani Gurdwara Prabandhak Committee, JT 1998(8) SC 503 :1999(2) SC 60; State of Rajasthan & Ors. vs. Dr. Lakshmi & Ors., 1996(6) SCC 445 and V.S. Charati vs. Hussain Nhanu Jamadar, 1991(1) SCC 273. 3. The learned counsel for the respondents on the other hand has contended that the writ jurisdiction cannot be invoked for the purpose of execution of an award passed by the Industrial Tribunal/Labour Court, since there are adequate provisions provided in the Act and the rules for execution of an award. The second contention that was raised is that the Labour Court had exceeded its jurisdiction in passing the award, inasmuch as the Labour Court in exercise of jurisdiction under section 33-C(2) is not empowered to determine any entitlement it can only compute monetary benefit flowing from an entitlement. In the present case the entitlement of the individual workmen was dependent on the circular dated 19th November, 1974 which prescribes that 15 per cent of the total strength of the cadre would be the maximum number of posts for which intermediate selection grade scale would be available provided such candidate completes 10 years of service in the grade next below. In the present case the benefit has been computed on the basis of the 100 per cent candidates of the grade next below as entitled to intermediate selection grade scale of pay. Thus it in fact determined the entitlement of the persons who are ineligible to get the said benefit. Thus, the Labour Court had exceeded its jurisdiction. According to him the 15 per cent of the candidates of the cadre who had completed 10 years of continuous service in the grade next below only were entitle to the selection grade scale of pay and the rests are not. But without any finding that each of the workmen had completed 10 years service in the grade next below and are within 15 per cent of the cadre, there cannot be any question of computation. But without any finding that each of the workmen had completed 10 years service in the grade next below and are within 15 per cent of the cadre, there cannot be any question of computation. Though incidentally Labour Court can determine the question, which cannot be disputed, that the particular number of workmen came within the 15 per cent of the cadre having completed 10 years service in the grade next below which is an incidental finding but it cannot, without any such finding, decide that each of the workmen being 100 per cent of the cadre are entitled to the benefit. Therefore, the finding is a nullity. An award which is a nullity is inexicutable. In support he has relied on Municipal Corporation of Delhi vs. Ganesh Rajah, 1995(1) SCC 235 . He further contended that the acceptance of the case of one of the workmen by reason of orders passed by this court would non disentitle the respondent to raise the question of validity of the award. An award which is a nullity is always a nullity and is non est in the eye of law. Therefore, compliance of order of this Court will not amount to an acceptance of an award which is otherwise non est. The question of nullity can be set up at any time whenever, it is sought to be enforced. An award which is a nullity cannot be validated even by consent of parties. To support his contention he relied on Kiran Singh vs. Cha-man Paswan, AIR 1954 SC 340 and Official Trustee vs. Sachindranath Chatterjee, AIR 1969 SC 823 ; Kannan vs. S.K. Nayar, 1991 (1) SCC 544 . He then contends that the Court cannot direct Government to act contrary to law. In the present case the Government would be acting contrary to law by granting selection grade scale of pay to persons who are not eligible or otherwise not entitled in view of the conditions contained in the circular dated 19th of November, 1974. He cited Life Insurance Corporation of India vs. Asha Ramchandra Ambekar, 1994(2) SCC ,718, to support his contention. 4. In reply Mr. Kalyan Banerjee, learned counsel for the petitioner contended that the validity of the award cannot be challenged by the Government in the writ petition filed by the petitioner. He cited Life Insurance Corporation of India vs. Asha Ramchandra Ambekar, 1994(2) SCC ,718, to support his contention. 4. In reply Mr. Kalyan Banerjee, learned counsel for the petitioner contended that the validity of the award cannot be challenged by the Government in the writ petition filed by the petitioner. The point of nullity having not been taken in the affidavit in opposition the same can no more be raised. Unless the award is declared a nullity by a competent Court the same cannot be challenged in these proceedings. Even on merits he contends that the Labour Court has not determined the entitlement but has only computed the entitlement. The notification dated 19th February, 1974 is very much applicable. Under the said notification each of the petitioners were eligible and entitled to selection grade scale of pay since they have fulfilled the conditions laid down therein namely came within the 15 per cent of the cadre having completed 10 years of service in the grade next below. Therefore, this petition should be allowed and the relief sought for be granted. 5. I have heard the learned counsel for the respective parties at length. Submissions and counter submissions have been made by the respective counsel for the parties. The facts are not much disputed. The question appears to be a question of law to be determined on the basis of the given facts. In order to appreciate the situation let us find out the undisputed facts. Mr. Kar, for respondent, had never disputed that the circular dated 19th November, 1974 is applicable to the petitioners. He only contended that under the said notification all the employees in the same cadre were not entitled to the benefits in view of clauses III and VIII of the said notification by which amendments were brought in the West Bengal Services (Revision of Pay and Allowances) Rules, 1970 published on 30th of December, 1970. It is only extended to those workmen who constitute 15 per cent of the cadre and have completed 10 years service in the grade next below. He also contended that there is nothing to show that all the workmen who were parties to the proceedings constitute 15 per cent as above having completed 10 years service in the grade next below. The counsel for the petitioner has also not pointed out as to who constitute the 15 per cent. He also contended that there is nothing to show that all the workmen who were parties to the proceedings constitute 15 per cent as above having completed 10 years service in the grade next below. The counsel for the petitioner has also not pointed out as to who constitute the 15 per cent. It is also not pointed out that what were the strength of the cadre and that how each of the workmen who were given the benefit under the award constitute the 15 per cent having completed 10 years service in the grade next below. It is also admitted that some of the workmen under orders of Court have been given benefit of the said award. That the award has not been challenged 'by the respondents and it has reached finality. 6. In this background the questions raised by the respective counsel are to be gone into. The first contention that the award is a nullity can be gone-into by this court only if this Court is permitted to go behind the award. On the principle that the executing Court cannot go behind the decree Mr. Kalyan BaneIjee had contended that it is not open to this Court in the present proceedings to go behind the award and find out whether it is a nullity particularly in view of the earlier orders of this Court in which the question of nullity was not raised and that some of the workmen had received the benefit out of the award by reason of such orders of this Court. According to him, when this question was not raised in the earlier proceedings in respect of the self same award the said question, if raised, now would be hit by the principle of constructive res judicata, apart from the question of estoppel acquiescence and waiver. 7. Before entering into all these questions let us first examine as to whether this Court has jurisdiction to determine the question of nullity of the award at all. Mr. Kar however, had submitted that it can be gone into. Admittedly, on the principle that the executing Court cannot go behind the decree, this Court is not supposed to look into the question. Mr. Kar however, had submitted that it can be gone into. Admittedly, on the principle that the executing Court cannot go behind the decree, this Court is not supposed to look into the question. But when it is contended before the executing Court that the decree is a nullity and as such is non est and therefore, inexecutable then it is a question of jurisdiction of this court which is being challenged. Whenever, a question of jurisdiction is raised, the Court is bound to examine the same. Unless the Court has jurisdiction to execute the award, the Court cannot proceed with the execution. Therefore, the Court is free to examine whether the decree is executable or not. A decree is executable when it is valid. A decree is inexecutability if it is a nullity. The Court cannot assume jurisdiction when it has none. The question of nullity of the decree or its inexecutable goes to the root of the jurisdiction of the Court and as such can be gone into when it is so raised. If it is ultimately found that the decree is a nullity in that event it would be non est. In other words there is no award in the eye of law. In the absence of any award nothing can be executed. The principle that the executing Court cannot go behind the decree has certain exception. One such exception is that the decree sought to be executed is a nullity. Therefore, there is a lack of initial jurisdiction of the executing Court to execute such inexecutable decree which is a nullity. Every Court is responsible, before assuming jurisdiction, to find out as to whether it has jurisdiction to deal with the matter. If the question hits at the root of jurisdiction the Court cannot assume jurisdiction. In other words the Court being without jurisdiction cannot proceed with the same. Even if an inexecutable decree is executed in the absence of jurisdiction, such execution would be without jurisdiction. Execution of a decree which is a nullity is an exercise in void and as such the execution it self is also a nullity. The Court cannot exercise its jurisdiction when there is void. It is a responsibility of the Court to examine whether it has jurisdiction to execute the decree by examining the executability of the decree. Execution of a decree which is a nullity is an exercise in void and as such the execution it self is also a nullity. The Court cannot exercise its jurisdiction when there is void. It is a responsibility of the Court to examine whether it has jurisdiction to execute the decree by examining the executability of the decree. In other words to examine as to whether the decree is a nullity and the Court would be exercising its jurisdiction in futility or would exercising its jurisdiction in void. The reference may be made to series or catina of decision on this question. We may not multiply the references. We may simply refer to the decision in the case of Hindusthan Magcobar Chemicals Ltd. vs. O.P. Rajgharia, G.A.No.99 of 2001 and G.A. No. 100 of 2001 (C.S. No. 83 of 2000) disposed of by this Court on 11th April, 2001 relying on Official Trustee, W.B. vs. Sachindranath Chatterjee, AIR 1969 SC 823 and Urban Development Trust, Jodhpur vs. Gokul Narain, 1996(4) SCC 178 . 8. Now let us examine whether the question of nullity could be gone into because of the orders passed by the Court in earlier proceedings in relation to the selfsame award and making of payment by the respondents in terms of the said award to some of the workmen parties to the proceedings under orders of Court or in other words the question would be hit by the principles of constructive res judicata, or those of estoppel, waiver and acquiescence. Admittedly, pursuant to the orders of this Court payments have been made in terms of the award and in those cases the question of nullity was not raised. The principle of res judicata applies equally even in writ proceedings since it is a matter of policy or principle. It also applies to execution proceedings. Admittedly, the issue was not raised in the earlier proceedings. But the issue could have been raised. Therefore, the principle of constructive res judicata at contemplated in explanations IV and V of section 11 of the Code of Civil Procedure can be attracted. The question shall be deemed to have been raised and the relief shall be deemed to have been refused though it was not raised and not expressly refused. Therefore, the principle of constructive res judicata at contemplated in explanations IV and V of section 11 of the Code of Civil Procedure can be attracted. The question shall be deemed to have been raised and the relief shall be deemed to have been refused though it was not raised and not expressly refused. But the question would be completely different when it is a question related to the jurisdiction of the Court which had passed the order on the basis of the award on the decree that was sought to be executed is a nullity. In case this question is not gone into still then it will not be hit by the principles of explanations IV and V of the section 11 of the Code. When it is inherent lack of jurisdiction and when such question of lack of jurisdiction was overlooked the same cannot be set up to attract the principle enunciated in explanations IV and V of section 11 of the Code. Constructive res judicata is not attracted to a case which hits at the root of the jurisdiction of the Court deciding the earlier case. Inasmuch as the decision may be binding on the parties to the said proceedings 'but it would not bind the parties to the present proceedings though both the groups of parties were parties to the award but none of the parties are claiming through each other. On the other hand by reason of the provisions contained in the Industrial Disputes Act, individual cause of action was joined together in one proceedings. Each of the workmen though might have joined together or collectively lodged the case since the claims of each individual workmen was identical and the employer was one. But by no stretch of imagination it could be said that each of the workmen were claiming his individual right through the other or each of the workmen. All the workmen are standing on their own independent cause of action which are distinct and separate from each other. Admittedly, these petitioners were not parties in the earlier order nor are covered or governed by the earlier order. Therefore, one of the ingredient attracting the principle of res judicata namely parties to the proceedings and/or claiming through the parties having not been satisfied the principle of res judicata or constructive res judicata cannot be attracted. Admittedly, these petitioners were not parties in the earlier order nor are covered or governed by the earlier order. Therefore, one of the ingredient attracting the principle of res judicata namely parties to the proceedings and/or claiming through the parties having not been satisfied the principle of res judicata or constructive res judicata cannot be attracted. Acceptance or compliance of an order or the award by reason of an order passed in a contempt proceeding by this Court is not a voluntary action on the part of the respondents to constitute waiver or acquiescence or estoppel. There cannot be estoppel against law. Thus, the question of constructive res judicata or waiver or acquiescence raised cannot be sustained in the present case if the question of nullity is raised. Such a question can be raised at any point of time. In the case of Kiran Singh vs. Chaman Paswan, AIR1954 SC 340, it was held that when an order is a nullity the question can be set up at any time whenever, it is sought to be enforced. It strikes at the very authority of the Court to pass any decree. It cannot be cured even by consent of parties. The term jurisdiction was elaborated in Official Trustee vs. Sachindranath Chatterjee, AIR 1969 SC 823 (Paras 13 to 16), quoting with approval the celebrated passage from Hriday Nath Roy vs. Ram Chandra Barna Sharma, AIR 1921 Calcutta 34(FB). It was held by the Full Bench speaking through Mukherjee. Acting C.J. that the classification of jurisdiction territorial, pecuniary and subject matter is of fundamental character. There is a distinction between exercise of jurisdiction and existence of jurisdiction. Reliance was placed on Raghunath vs. Sundar Das, AIR 1914 PC 129, where Lord Parkar observed: "A judgment pronounced by a Court without jurisdiction is void....." 9. Therefore, the absence of jurisdiction renders the judgment void and a nullity, which can never be cured and is unaffected by the principles of estoppel waiver or acquiescence when the defect of jurisdiction is fundamental on the ground that the Court had none at all. 10. Now, therefore, let us examine as to whether the award is a nullity. Section 33-C(2) of the Industrial Disputes Act empowers the Labour Court to compute the monetary benefit which a workman is entitled to receive from the employer. 10. Now, therefore, let us examine as to whether the award is a nullity. Section 33-C(2) of the Industrial Disputes Act empowers the Labour Court to compute the monetary benefit which a workman is entitled to receive from the employer. The Courts jurisdiction is only to compute and determine the amount payable under such benefit. It is a settled principle of law that while computing, the Court can go into incidental question, but it cannot assume the jurisdiction to determine the entitlement and then to compute. In the present case the Court has in fact determined the entitlement. Inasmuch as it has not come to any finding that each of the workmen is entitled to the benefit having fulfilled the condition contained in the notification dated 19th February, 1974. In the said notification the entitlement is confined to the 15 per cent strength of the cadre provided such person had completed 10 years of service in the grade next below. 11. Section 33-C(2) empowers the Labour Court to compute the benefit a workman is entitled to receive from the employer where any question arises as to the amount of money or as to the amount at which such benefit should be computed. The area within which the Labour Court can exercise its jurisdiction is confined to the computation ofthe amount of money or the rate at which such benefit is to be computed. It does not exceed the said area which is again circumscribed by the condition where any workmen is entitled to receive from the employer any money or any benefit which is capable to being computed in terms of money. Thus the jurisdiction is confined only in a case where the workmen is entitled to receive money or benefit, as the case may be, from the employer. Thus this jurisdiction can be exercised by the Labour Court when the entitlement is not disputed but only the amount or the rate is disputed. The jurisdiction being confined by express provision of a statute, the Labour Court cannot assume jurisdiction beyond the subject matter prescribed by the statute. Any exercise of jurisdiction in excess of the area or the subject matter would be beyond the authority of the Labour Court. 12. This proposition is now a settled principle of law. But, however, there is one exception. Any exercise of jurisdiction in excess of the area or the subject matter would be beyond the authority of the Labour Court. 12. This proposition is now a settled principle of law. But, however, there is one exception. The exception is that in order to compute it may determine some other question incidentally. But this incidental determination again has to be within the scope and ambit of the provision conferring the jurisdiction and within the subject prescribed in the section. The jurisdiction of the Labour Court is confined to the computation of an existing benefit and not to any discovery of a benefit by the process of interpretation or otherwise as was held a Rajamani Transports Limited vs. Collector of Tiruchirapalli, 1956(1) LLJ 37, 40(Madras). In Central Bank of India Ltd. vs. Raja Gopalan, 1963 (2) LLJ 89 (SC), the Apex Court had held that having regard to the fact that the policy of the legislature in enacting section 33 C was to provide a speedy remedy to the individual workmen to enforce or execute his existing rights, it is not reasonable to exclude from the scope of that section cases of existing rights which are sought to be implemented by individual workmen. In East India Coal Company vs. Rameshwar, 1968 Lab I.C. 197(SC), it was held that "Since proceedings under section 33C-(2) are analogous to execution proceedings and the Labour Court called upon to compute in terms of money the benefit claimed by a workman is in such cases in the position of an executing Court, the Labour Court, like the Executing Court in execution proceedings governed by the Code of Civil Procedure is competent under section 33-C(2) to interpret the award or settlement where the benefit is claimed under such award or settlement and it would be open to it to consider the pleas of nullity where the award is made without jurisdiction." In the said case the court was called upon to decide the question of interpretation of the award or settlement. 13. If the Labour Court can interpret the award or settlement it can also interpret the notification under which the existing right is claimed. But it cannot interpret in a manner which travels to the realm of determination of an entitlement. 13. If the Labour Court can interpret the award or settlement it can also interpret the notification under which the existing right is claimed. But it cannot interpret in a manner which travels to the realm of determination of an entitlement. It has to find out as to whether the right claimed by the workmen flows from an existing right and in order to find out the existing right it has jurisdiction to examine the notification from which the right is claimed to be flowing. But it cannot determine any entitlement having regard to such notification. In Bombay Gas Company Ltd. vs. Gopal Bhiua, 1963(2) LLJ 608 , 611 (SC), it was held that the Labour Court would be justified in refusing to implement an award if it were satisfied that the direction in the award on which the claim was passed was without jurisdiction. 14. If the Labour Court itself can refuse implementation of an award when it is a nullity, then it cannot be contended that High Court would be without jurisdiction to refuse relief on the ground of nullity. In order to exercise jurisdiction it has to examine the question of nullity and thus High Courts jurisdiction cannot be said to be more limited than that of the Labour Court in case nullity is complained. 15. Similar question arose in Municipal Corporation of Delhi vs. Ganesh Rajak and Anr., 1995 (1) SCC 235 . In the said case the Apex Court had held that the power of the Labour Court under section 33-C(2) extends to interpretation of the award or settlement (in this case the notification dated 19th February, 1974) on which the workmen's right rests, like the executing Court's power to interpret the decree for the purpose of execution, where the basis of the claim is referable to the award or settlement (in this case the notification dated 19th February, 1974), but it does not extend to determination of the dispute of entitlement or the basis of the claim if there be no prior adjudication or recognition of the same by the employer while referring to the decision in Central Bank of India vs. P.S. Raja Gopalan, AIR 1964 SC 743 : (1963)(2) LLJ 89. While dealing with Bombay Gas Company Ltd. vs. Gopal Bhiua, AIR 1964 SC 752 : 1963(2) LLJ 608 , the Apex Court had pointed out that it is obvious that the power of the executing court is only to implement the adjudication already made and not to adjudicate a disputed claim which requires adjudication for its enforcement. Referring to Chief Mining Engineer, East India Coal Company Ltd. vs. Rameshwar, AIR 1968 SC 218 : 1968(1) LLJ 6, the Apex Court had held that the right to the benefit which is sought to be computed under section 33C(2) must be an existing one, that is to say already adjudicated upon or provided for. In reference to Central Inland Water Transport Corporation Ltd. vs. Workmen, 1974(4) SCC 696 , the Apex Court had observed that a proceeding under section 33-C(2) being in the nature of execution proceeding it would appear that an investigation of the alleged right of re-employment is besides its scope and the Labour Court exercising power under section 33-C(2) of the Act, and it cannot arrogate to itself the functions of adjudication o(the dispute relating to the claim. In the said decision the distinction between determination and incidental finding have been defined in pages 701-02 to mean: when exercise involves an investigation in respect of the corresponding rights and liabilities is a determination and the working out of such liability is the function of the execution. Sometimes the extent of liability may be left over for the determination in execution. Determination of such extent of liability would be incidental to the execution. To determine the corresponding right and the liability if considered incidental in an execution proceeding the same would be a perversion since in an execution proceedings the extent of liability is worked out as consequential upon the determination. Therefore, Labour Court under section 33-C(2) cannot arrogate to itself the functions of adjudication in the nature of determination of rights and corresponding liability. It cannot proceed to compute dubbing the same as incidental to computation. In State Bank of Bikaner and Jaipur vs. RL Khandelwal, 1968 (1) LLJ 589, it was held that a workmen cannot put forward a claim in an application under section 33-C(2) in respect of a matter which is not based on an existing right and which can be appropriately the subject matter of an industrial dispute. In State Bank of Bikaner and Jaipur vs. RL Khandelwal, 1968 (1) LLJ 589, it was held that a workmen cannot put forward a claim in an application under section 33-C(2) in respect of a matter which is not based on an existing right and which can be appropriately the subject matter of an industrial dispute. According to the decision in Delhi Municipal Corporation (supra) a dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly besides the scope of section 33-C(2). The Labour Court has no jurisdiction to first decide the workmens' entitlement and then proceed to compute the benefit so adjudicated while exercising its power under section 33-C(2). It is only when the entitlement has been adjudicated or recognized by the employer and thereafter for the purpose of implementation or enforcement thereof if some ambiguity requires interpretation, that interpretation is treated as incidental to the Labour Court's power under section 33-C(2). 16. In the back drop of the power of the Labour Court as discussed above now let us examine how far the determination made by the Labour Court is within or without the jurisdiction of the Labour Court under section 33-C(2). Admittedly, if the award is beyond the jurisdiction of the Labour Court in that event in the absence of its jurisdiction the award would be a nullity. 17. The benefit is being claimed under the notification dated 19th November, 1974 being annexure A to the affidavit-in-opposition. By virtue of the said notification the West Bengal Services (Revision of Pay and Allowances) Rules, 1970 published on 30th December, 1970 and amended from time to time, was amended. Under the said notification, the percentage of sanction of new intermediate selection grade scale was raised from 10 per cent to 15 per cent and that appointment in new or intermediate selection grade scale would be admissible after 10 years of service in the grade next below. However, no prior consultation with the Public Service Commission would be necessary for making appointment to new intermediate selection grades sanctioned. Thus, the right is available only against the sanctioned selection grade posts, the strength of which shall be 15 per cent of the total strength of the cadre. A person would be eligible to be considered for appointment in a sanctioned selection grade only if he had put in 10 years service in the grade next below. Thus, the right is available only against the sanctioned selection grade posts, the strength of which shall be 15 per cent of the total strength of the cadre. A person would be eligible to be considered for appointment in a sanctioned selection grade only if he had put in 10 years service in the grade next below. To find out the number of the sanctioned post within the 15 per cent of the cadre and that a person has completed 10 years service in the grade next below without any dispute would be incidental to the computation under section 33-C(2). But the moment the Labour Court determines that this rule is applicable to all who lodged the claim and that each one of them is entitled to such benefit it does not remain a computation when it accepts the computation submitted by workmen, in the absence of any prior determination or recognized by the employer. It then becomes a determination of entitlement of each of the workmen. Admittedly, each of the workmen would not be entitled to get selection grade, inasmuch as the number of sanctioned selection grade would be 15 per cent of the total strength of the cadre. There is nothing in the award to indicate that the 15 per cent includes all the workmen. Neither the strength of cadre is available on record, nor there is any determination of 15 per cent. There is also no finding that all these workmen had completed 10 years in the grade next below. Thus, the award has in effect determined that all the workmen are entitled to the selection grade even without any incidental finding that which of the workmen are entitled to selection grade, is in effect a determination of the entitlement itself. 18. The employer is not disputing that the 1974 notification is applicable in respect of the workmen but contends that only those who would be fulfilling the condition contained in clauses III and VII by rendering 10 years service in the grade next below. Thus it appears that in the present case, the Labour Court has determined entitlement which is not at all admissible to majority of the workmen. The Labour Court can compute an existing right. Here the determination of existing right. Thus it appears that in the present case, the Labour Court has determined entitlement which is not at all admissible to majority of the workmen. The Labour Court can compute an existing right. Here the determination of existing right. Here, the determination of existing right may be an incidental determination, but a relief granted in respect of a right which is not at all existing, would be wholly without jurisdiction. Therefore, the award that has been sought to be enforced through this writ jurisdiction being void without jurisdiction and a nullity does not confer any legal right on the workmen to invoke writ jurisdiction. The writ jurisdiction can be invoked in order to enforce a legal right. If the legal right does not exist and the right sought to be enforced is not based on a claim which can be legally sustained the writ petition cannot be maintained. 19. While exercising writ jurisdiction, the Court cannot direct the respondents to do something which they are not liable to do legally, The Court cannot direct the respondents to do something which is legally impermissible. The Court cannot direct the respondents to act de hors the rules. The Court cannot perpetuate illegality. Such a view was taken by the Apex Court in State of Himachal Pradesh vs. Suresh Kumar Verma, 1996(2) SLR 321 and Dr. Surinder Singh Jamwal vs. State of Jammu & Kashmir, JT 1996(6) SC 725. In Union of India & Anr. vs. Kirloskar Pneumatic Company Ltd., JT 1996 (5) SC 26: 1996(4) SCC 453 , the Apex Court has observed "yet the question is whether, it is permissible for the High Court to direct the authorities under the Act to act contrary to the aforesaid statutory provision. I do not think it is, even while acting under Article 226 of the Constitution. The power conferred by Articles 226227, is designed to effectuate the law, to enforce the rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law." In T. Kannan and Ors. vs. S.K. Nayyar and Ors., 1991(1) SCC 554 decided along with A.K. Bhatnagar and Ors. It cannot be invoked for directing the authorities to act contrary to law." In T. Kannan and Ors. vs. S.K. Nayyar and Ors., 1991(1) SCC 554 decided along with A.K. Bhatnagar and Ors. vs. Union of India and Ors., the Apex Court had observed that "Very often Government themselves get trapped in their own mistakes or actions in excess of what is provided in the rules. We take serious view of these lapses and hope and trust that the Government both at the Centre and in the States would take note of this position and refrain from acting in a manner not contemplated by their own rules." In Life Insurance Corporation of India vs. Asha Ram Chandra Ambekarand Anr., AIR 1994 SC 2148 : 1994(2) SCC 718 , the Apex Court had observed that where "the corporation has acted bona fide, ..........the corporation can not be directed by means of a mandamus to do something which is per se illegal... of late this Court is coming across many cases in which appointment on compassionate ground is directed by Judicial Authorities. Hence, we would like to lay down the view in this regard. The High Courts and the Administrative Tribunal cannot confer benediction impelled by sympathetic consideration. No doubt Shakespeare said in. Merchant of Venice': "The quality of mercy is not strained; It droppeth as the gentle rain from heaven Upon the place beneath it is twice blessed; It blesseth him that gives, and him that takes;" These words will not apply to all situations. Yielding to instinct will tend to ignore the cold logic of law. It should be remembered that "Law is the embodiment of all wisdom." Justice according to law is a principle as old as the hills. The Courts are to administer law as they find it, however, inconvenient it may be." Reference with approval in the said judgment was made to Martin Burn Limited vs. Corporation of Calcutta, AIR 1966 SC 529 , 535 while quoting in the passage: "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not." 20. Thus a Court cannot do whatever it likes. The writ jurisdiction is not all powerful. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not." 20. Thus a Court cannot do whatever it likes. The writ jurisdiction is not all powerful. The same is also circumscribed by limits of law. It cannot grant anything which is otherwise impermissible in law. 21. In the circumstances it is very difficult to perceive that in exercise of writ jurisdiction, this Court can grant the relief sought for in this petition. At the same time, it may be borne in mind that the writ jurisdiction cannot be invoked for the purpose of execution of an award which is otherwise in executable or executable under section 33-C(2). 22. Mr. Kalyan Banerjee however, sought to support his contention as referred to hereinbefore. He argued that the Government cannot challenge the validity of the award in a writ petition filed by the writ petitioner, without themselves, having challenged the award through an appropriate proceeding. The contention of Mr. Banerjee appears to be of some substance. The respondent cannot challenge the validity of the award in a writ petition filed by the writ petitioner. But it has one exception, namely, when an award is sought to be enforced a respondent has every right to defend its liability. By way of defence it is open to it to contend that the award that is being sought to be enforced is a nullity. When it is a question of nullity, it is a case of non est. In other words, it is a case of no existence in the eye of law. If it is a nullity it can be raised even by way of defence at any stage as was held by the Apex Court in Kiran Singh vs. Chaman Paswan, AIR 1954 SC 340 and Official Trustee vs. Sachindranath Chatterjee, AIR 1969 SC 823 . He then contended that on merit the award has been passed by the Labour Court within the scope and ambit of section 33-C(2). As discussed above, the determination being the subject matter of the award does not fall cannot come within the limits of section 33-C(2). 23. He has also contended that the plea of nullity has not been taken in the affidavit in opposition. As discussed above, the determination being the subject matter of the award does not fall cannot come within the limits of section 33-C(2). 23. He has also contended that the plea of nullity has not been taken in the affidavit in opposition. Even if it is not so taken, still then as soon it is brought to the notice of the Court, the Court cannot close its eyes and overlook it. An award, once a nullity is a nullity always. Whether pleaded or not, if the attention of the Court is attracted, the Court has the responsibility to determine it. As observed earlier before assuming jurisdiction, Court has to examine whether it has. Therefore, it is immaterial whether the point of nullity is taken in the affidavit in opposition or not. 24. Mr. Banerjee next contended that unless the award is declared a nullity by a competent Court, the same cannot be challenged. This contention is devoid of nay merit. Inasmuch as it is a question of execution. The executing Court has a responsibility to examine whether the award is executable or not. This contention can be raised when it comes before the State Government which is not a determining authority. The Labour Court and the High Court are definitely Courts competent to examine the executability of the award. Therefore, in course of examination of the executability of the award, the High Court in exercise of writ jurisdiction can come to a conclusion that the award is a nullity. If it so concludes, then it has every right to refuse its execution. As discussed above, the Court can not perpetuate illegality. 25. Mr. Banerjee then contends that Article 226 is meant for some other purpose. It cannot be utilized for the purpose of declaration of nullity of an award in a proceedings seeking to enforce the award. This point seems to be of no substance. Inasmuch as when writ jurisdiction is exercised, it has to see that it is enforcing a legal right. Unless the petitioners are able to established a legal right to enforce the award the Court is not supposed to enforce the same invoking its writ jurisdiction. In order to invoke writ jurisdiction, petitioner is supposed to establish its legal right. Inasmuch as when writ jurisdiction is exercised, it has to see that it is enforcing a legal right. Unless the petitioners are able to established a legal right to enforce the award the Court is not supposed to enforce the same invoking its writ jurisdiction. In order to invoke writ jurisdiction, petitioner is supposed to establish its legal right. In the present case, the legal right, that is to be established, is the right with regard to the enforcement of the award legally, which can be established legally only if it is found that the award is enforceable in law. Unless the petitioners are able to show that it is legally enforceable, they cannot claim any legal right. In the present case, the petitioners have not been able to establish that the award was legally valid and not a nullity and that the Labour Court had jurisdiction to pass the said award on the basis of the 1974 notification. The question of defence would arise only when the petitioner establishes its legal right. Failure to establish legal right would disentitle the petitioner to invoke writ jurisdiction. In the facts and circumstances of the case it was incumbent on the petitioners to show that the award was not a nullity and was legally valid and was within the jurisdiction of the Labour Court. 26. The last contention of Mr. Banerjee was that the order has since been implemented in case of other workmen but not in the case of the petitioners and therefore, the respondents are discriminating between the same class of workmen and that the respondents having implemented the same had waived their right and had acquiesced with the same and therefore, estopped from refusing to implement the same. The question of estoppel acquiescence and waiver have since been discussed hereinbefore the same need no more elaboration. The question of discrimination also does not appear to exist in the facts and circumstances of the case. The question of estoppel acquiescence and waiver have since been discussed hereinbefore the same need no more elaboration. The question of discrimination also does not appear to exist in the facts and circumstances of the case. It is not a question of discrimination in view of the fact that the respondents were compelled to implement the order in respect of some of the workmen under orders of this Court pursuant to a proceedings under the Contempt of Courts Act which can not be treated to be a ground for discrimination when the question is a question of nullity and implementing of an award which is otherwise not permissible in law and is contrary to the rules particularly the notification dated 19th February, 1974. 27. For all these reasons I am unable to persuade myself to agree with the contentions of Mr. Kalyan Banerjee. In the result, the writ petition fails and is accordingly dismissed. However, this order will not prevent the respondents from approaching the Labour Court for a fresh decision for the stage of hearing of their petition under section 33-C(2) upon producing sufficient materials to show as to which of the workmen come within the 15 per cent of the sanctioned selection grade having fulfilled 10 years of service in the grade next below, according to their joining in order of seniority or otherwise in the cadre. If the Labour Court on the materials produced finds such of the workmen to be entitled under the said circular in that event it can compute after determining the question incidentally. At the same time, the respondents shall be at liberty to contest the same in accordance with law. In case, the dispute takes away the case besides the scope and ambit of section 33-C(2) in that event appropriate proceedings may be resorted to by the parties, as they may be advised. No costs. Writ petition dismissed.