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2004 DIGILAW 1320 (ALL)

Pradeep Kumar Chaudhary v. Union of India

2004-07-22

ARUN TANDON

body2004
JUDGMENT Arun Tandon, J.—Heard Sri Uma Nath Pandey on behalf of the petitioner. Nobody is present on behalf of the Union of India. Respondent Nos. 2 and 3 are represented by Sri Vinod Swaroop. 2. On behalf of the Central Board of Secondary Education Sri H. N. Pandey has filed an application under Chapter XXII Rule 5 of the High Court Rules stating therein that the writ petition is liable to be dismissed for non-impleadment of the Board, which is a necessary party to the writ proceedings. Along with the said application, the Central Board of Secondary Education has also filed its counter-affidavit giving reply to the allegations made in the writ petition. Rejoinder-affidavit to the said counter-affidavit has been filed today, which may be taken on record. 3. Having regard to the aforesaid facts, this Court is of the opinion that the academic career of the student should not be permitted to be jeopardized on a hyper-technical ground of non-impleadment of Central Board of Secondary Education as suggested by the counsel for the respondent specifically when the Board has already filed counter-affidavit and is representing through a counsel before this Court. It is just and proper that the Central Board of Secondary Education, Delhi, may be impleaded as respondent No. 4. No notice is required to be issued to newly added respondent No. 4 as it is already represented by a counsel. 4. Petitioner is directed to implead the Central Board of Secondary Education through its Secretary as respondent No. 4 during the course of day. 5. Since the Central Board for Secondary Education has been impleaded as respondent No. 4 with the leave of this Court, the application filed by the said Board for dismissing the writ petition for want of necessary party is hereby rejected. 6. Now the Court will proceed to consider the writ petition on merits. 7. This writ petition has been filed by a student of Navodaya Vidyalaya, Basti against an order dated 16.4.2003, whereby the petitioner was transferred from Navodaya Vidyalaya, Basti to Navodaya Vidyalaya, Faizabad. In the writ petition it has been stated that the said order of transfer was passed only because the petitioner, along with certain other students, during a cricket match, has indulged in marpeet. Despite time being granted by this Court no counter-affidavit on behalf of the respondent Nos. In the writ petition it has been stated that the said order of transfer was passed only because the petitioner, along with certain other students, during a cricket match, has indulged in marpeet. Despite time being granted by this Court no counter-affidavit on behalf of the respondent Nos. 2 and 3 has been filed, as such the allegations made in the writ petition are taken to be correct, which established beyond doubt that the impugned order of transfer was passed only because of indulgence of petitioner in marpeet during a cricket match. It has further been stated in the writ petition that out of 12 students, who were involved in the said incident, 5 students were permitted to continue at Basti itself. Having regard to the totality of the charge as borne out from the record, this Court is of the opinion that the petitioner, who is student of Class XII, should not have been transferred instead minor punishment like warning, fine etc. must have been imposed. This Court cannot lose sight of the fact that young boys during matches do indulge in acts of misbehaviour but the aid acts are momentary and are not an outcome of any deliberate act. After all boys shall remain boys. The transfer order passed against the petitioner, transferring from Navodaya Vidyalaya, Basti to Navodaya Vidyalaya, Faizabad, is too harsh a punishment in the facts of the case and cannot be legally sustained and is hereby set aside. 8. This Court had granted an interim order in favour of the petitioner on 3.9.2003, whereby the petitioner was permitted to continue his studies in the institution at Basti itself. Under the interim order, the petitioner was re-admitted in the institution at Basti on 6.9.2003 and has also submitted his examination form for appearing in the class XII examination to be conducted by the Central Board of Secondary Education. On an application filed by the petitioner, this Court by means of the order dated 25th February, 2004, permitted the petitioner to undertake the said examination provisionally. It is not in dispute that in pursuance of the order of this Court the petitioner has also undertaken the said examination. 9. On an application filed by the petitioner, this Court by means of the order dated 25th February, 2004, permitted the petitioner to undertake the said examination provisionally. It is not in dispute that in pursuance of the order of this Court the petitioner has also undertaken the said examination. 9. The Central Board of Secondary Education has, however, not declared the result of the petitioner on the ground that the petitioner has not achieved the prescribed minimum attendance of 75% as required by the Examination Bye-laws 13, framed by the Central Board of Secondary Education, New Delhi. Clauses 13 (i) and 13 (ii) of the bye-laws are being quoted hereunder : “13. A regular course of study : “13. I (i) The expression “a regular course of study” referred to in these bye-laws means at least 75% of attendance in the classes held ; counted from the day of commencing teaching of classes X/XII upto the 1st of the month preceding the month in which the examination of the board commences. Candidates taking up a subject(s) involving practicals shall also be required to have put in at least 75% of the total attendance for practical work in the subject in the laboratory. Heads of Institutions shall not allow a candidate who has offered subject(s) involving practicals to take the practical examination(s) unless the candidate fulfils the attendance requirements as given in this Rule. (ii) The candidates who had failed in the same examination in the preceding year and who rejoins classes X/XII shall be required to put in 75% of attendance calculated on the possible attendance from the 1st of the month following the publication of the results of that examination by the Board upto the 1st of the month preceding the month in which the examination of the Board commences.” 10. It is further admitted to the parties that the percentage of attendance of the petitioner has been worked out from the date study in class XII was started in the institution at Basti till the end of the academic session and on that basis it is stated that the petitioner has achieved an attendance of 44.4% only. It is further admitted to the parties that the percentage of attendance of the petitioner has been worked out from the date study in class XII was started in the institution at Basti till the end of the academic session and on that basis it is stated that the petitioner has achieved an attendance of 44.4% only. From the bye-laws, which has been quoted above, it is worthwhile to notice that normally a candidate is required to have at least 75% of attendance in the classes held ; counted from the day of commencement of teaching of the class XII upto the 1st of the month preceding the month in which the examination of the Board commences. However, clause (ii) provides that the candidates who had failed in the same examination in the preceding year and who rejoins classes shall be required to put in 75% of attendance to be calculated on the possible attendance from the 1st of the month following the publication of the results of that examination by the Board upto the 1st of the month preceding the month in which the examination of board commences. 11. The joint reading of the aforesaid provisions would establish beyond doubt that 75% attendance is to be taken into consideration from the possible attendance from the 1st of the month from which a particular student is normally accepted to attend the classes. Further reference may also be had to the Rule 14 of the Examination Rules, which provides for condonation of shortage of attendance in various circumstances mentioned in the said rule itself. Sub-rule (4) of Rule 14 reads as under : “14 (iv) The following may be considered valid reasons for recommending the cases of the candidates with attendance less than the prescribed percentage : (a) Prolonged illness ; (b) Loss of father/mother or some other such incident leading to his absence from the school and meriting special consideration ; and (c) Any other reason of similar serious nature ; (d) Authorised participation in sponsored tournaments and sports’ meets of not less than inter-school level and at N.C.C./N.S.S. camps including the days of journeys for such participation shall be counted as full attendance.” 12. Under the said Rule 14 the requirement of 75% attendance can be relaxed for the reasons mentioned in sub-rule (iv) of Rule 14. Under the said Rule 14 the requirement of 75% attendance can be relaxed for the reasons mentioned in sub-rule (iv) of Rule 14. Sub-clause (c) of sub-rule (4) of Rule 14 provides for condonation of shortage of attendance for any other reason of similar serious nature. 13. In the facts and circumstances of the case, since the petitioner was transferred from Basti to Faizabad and since this Court has quashed the order of transfer on the ground that the same was illegal and further since the petitioner was not permitted to take the classes at Basti because of an illegal order, which now ceases in the eye of law as same has been quashed, it was practically impossible for the petitioner to attend the classes between 16th April, 2003 to 6th September, 2003. Under the interim order of this Court, referred to above, the petitioner was re-admitted in the institution at Basti only on 6th September, 2003. The petitioner cannot be directed to perform an impossible task of achieving the attendance of 75% after taking into consideration the period when he was not permitted to attend the classes at Basti, i.e., between 16th April, 2003 to 6th September, 2003. 14. For the purposes of giving reasonable and fair interpretation to rules, providing for requisite attendance and relaxation of shortage thereof, it is just and fair in the facts and circumstances of the case that the period between 16th April, 2003 to 6th September, 2003, be excluded for the purposes of counting the attendance of the petitioner in class XII.Workman—Retrenchment—Workman dismissed from service—Dismissal set aside by Tribunal with full back wages and compensation—Workman permitted to join duties but back wages not paid—Retrenched from services within one month of joining—Retrenchment compensation paid which workman received under protest — Tribunal declared retrenchment illegal—Writ petition against award of Tribunal dismissed by single Judge of High Court—Plea regarding substantial compliance with requirement of law and waiver raised in appeal before and accepted by Division Bench—Whether justified?—Held, “no”—No such plea raised before single Judge—Tribunal interfered with retrenchment of workman not only on ground of non-compliance with provisions of Section 25F (b) but also on ground of contravention of Rule 77A—Judgment of Division Bench set aside. [Paras 8 to 10 and 17 to 20] The principle of waiver, although is akin to the principle of estoppel; the difference between the two, however, is that whereas estoppel is not a cause of action; it is a rule of evidence ; waiver is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded, it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct. [Paras 9 and 10] Judgment and order dated 13.10.1999 of Calcutta High Court in Appeal No. 434 of 1996, reversed. Cases referred.— 1980 (II) LLJ 124 (SC) (Paras 4 and 14) ; 2003 (1) AWC 798 (SC) : 2003 (1) SCCD 199 : (2003) 2 SCC 721 (Para 11). JUDGMENT S. B. Sinha, J.—The workman is in appeal before us being aggrieved by and dissatisfied with the judgment and order dated 13.10.2000 passed by the Division Bench of the High Court of Calcutta in Appeal No. 434 of 1996. 2. The case at hand has a chequered history. The appellant herein was appointed on the post of Messenger-cum-Bearer in the establishment of the respondent herein, a Cinema House, on 31.3.1978. He was subsequently confirmed on the said post. A disciplinary proceeding was initiated against him wherein he was found guilty, whereupon he was dismissed from services. The said order of dismissal was the subject-matter of an industrial dispute. The Industrial Tribunal, by reason of an award, set aside the said order of dismissal with full back-wages and compensation. On or about 1.5.1991, the appellant was permitted to join his duties but back-wages were not paid. He was, however, retrenched from services within one month from his joining, i.e. 30.5.1991. A sum of Rs. 9,030 was paid as retrenchment compensation which the appellant is said to have received under protest. On or about 1.5.1991, the appellant was permitted to join his duties but back-wages were not paid. He was, however, retrenched from services within one month from his joining, i.e. 30.5.1991. A sum of Rs. 9,030 was paid as retrenchment compensation which the appellant is said to have received under protest. A trade union known as Bengal Motion Pictures Employees Union took up the cause of the Appellant, inter alia, on the ground of contravention of the legal requirements as contained in Section 25G of the Industrial Disputes Act, 1947, as also insufficiency of the amount of compensation paid to the appellant in terms of Section 25F (b) thereof. An industrial dispute as regard his retrenchment was raised before the Assistant Labour Commissioner which failed; whereupon the Industrial Tribunal was approached by the appellant. In the meanwhile, the appellant had also initiated a proceeding under Section 33C (2) of the Industrial Disputes Act, 1947, which ended in an amicable settlement in terms whereof the appellant allegedly agreed to receive a sum of Rs. 39,000 as full and final settlement. He had accepted a cheque for the aforementioned sum of Rs. 9,030 issued by the management allegedly as part payment of his compensation of Rs. 39.000 which was deducted from the aforementioned settled amount of Rs. 39,000. The Industrial Tribunal by its order dated 28.12.1995 held : “Having regard to the facts and circumstances and in consideration of the evidence and record, I hold that the retrenchment of the concerned workman was illegal and as such he should be deemed to be in continuous service with all benefits. The issues are answered accordingly.” 3. A writ petition was filed by the respondent herein questioning the correctness or otherwise of the said award before the Calcutta High Court which was marked as Writ Petition No. 1872 of 1996. The said writ petition was dismissed by a learned single Judge, holding : “Thus, regarding (sic) regard being had to the principles of law discussed above in the light of the fact and circumstances of the instant case, I have no hesitation to hold that the impugned retrenchment was effected without complying with the mandatory requirements of Section 25F (b) of the Industrial Disputes Act and that the Tribunal was well within its jurisdiction in recording a finding to that effect. Such a retrenchment must, accordingly, be held to be void ab initio and consequently, the respondent must be deemed to be in service and entitled to all consequential benefits. I, therefore, find no justification for quashing the impugned Award. In such view of the matter, the petitioner is not entitled to any relief and the instant writ application fails. The writ application is, accordingly, dismissed without, however, any order as to costs.” 4. The respondent herein preferred an appeal thereagainst before a Division Bench of the Calcutta High Court which was marked as Appeal No. 434 of 1996. A plea as regard substantial compliance of the requirements of law on the part of the workman was raised for the first time. Accepting the said plea, the Division Bench, by reason of the impugned judgment allowed, the appeal holding : “So, the fact remains that the employer bona fidely paid the said amount of Rs. 9,030.30 along with the notice of retrenchment and the workman duly accepted the said amount. Hence, the plea of waiver in a case of this nature as argued by the learned advocate for the appellant can be upheld. Above all, when the employer bona fidely paid the major part of retrenchment compensation after a bona fide calculation, not opposed by anybody till the argument before the Tribunal, we fail to understand as to why the employer can be punished by ordering him to pay the entire back wages with the privilege of immediate reinstatement as ordered in the award. Following the principle adopted by the Apex Court in Workman of Sudder Workshop of Jhorhat Tea Company v. The Management, 1980 (II) LLJ 124 (SC) , we deem, it proper not to punish the employer as above only for an alleged shortfall of Rs. 552.87 which was not pleaded in the written statement of the workman. We do not think that non-payment of Rs. 552.87 as calculated in the award at the argument stage only, can make the retrenchment order nugatory. On the other hand, we take the view, following the principle adopted in Workman of Coimbatore Pioneer ‘B’ Ltd. (supra) that for non-payment of the short compensation of Rs. 552.87, a substantial amount can be paid as compensation. Accordingly, in setting aside the award and allowing this appeal, the appellant is directed to pay a sum of Rs. 552.87 (rounded off to Rs. 552.87, a substantial amount can be paid as compensation. Accordingly, in setting aside the award and allowing this appeal, the appellant is directed to pay a sum of Rs. 552.87 (rounded off to Rs. 553) along with a compensation of Rs. 6,634.50 (equivalent to wages for six months) to the workman—the respondent No. 4 within six weeks.” 5. The workman, thus, is in appeal before us from the said judgment. The respondent management has not appeared despite service of notice. 6. Mr. Bijan Kumar Ghosh, learned counsel appearing on behalf of the appellant, would submit that the Division Bench of the High Court committed a manifest error in passing the impugned judgment and order insofar as it failed to take into consideration that Section 25F (b) of the Industrial Disputes Act is imperative in character. Keeping in view the fact that admittedly the said legal requirements thereof had not been complied with and furthermore plea of waiver having not been raised before the Tribunal or before the learned single Judge, it was impermissible for the Division Bench to pass the impugned judgment. 7. We may usefully refer to the submissions made on behalf of the respondent—management in writ proceedings as had been noticed by the learned single Judge of the High Court in his judgment : “Mr. Arunava Ghosh. Id. advocate appearing for the petitioner company, raised the following points. First, it was urged that the Tribunal fell into error of law in coming to a conclusion that there was non-compliance of requirements of Section 25F (b) in as much as such a plea was never put forward on behalf of the workman in his written statement nor was it substantiated by any evidence. Secondly it was contended that when the workman did neither raise any plea of inadequacy of the retrenchment compensation nor adduce any evidence in this regard, the Tribunal should not have embarked upon an inquiry for the purpose of ascertaining whether the compensation money was adequate or not. Thirdly, it was contended that as there was neither any pleading nor any evidence regarding the shortfall in the payment of retrenchment compensation, the Tribunal could not go into that question at the stage of argument. Thirdly, it was contended that as there was neither any pleading nor any evidence regarding the shortfall in the payment of retrenchment compensation, the Tribunal could not go into that question at the stage of argument. Fourthly, it was urged that omission to maintain seniority list under Rule 77A does not render the retrenchment illegal or bad in law, particularly when there was clear admission on the part of the workman in his evidence that he was the last person to be employed in the category of workman to which he belonged and as such the Tribunal’s finding, if there be any, regarding the observance of the principles of ‘last come first go’ as contemplated under Section 25G was perverse and was not based on evidence. Mr. Ghosh cited a number of decisions in support of his contentions.” 8. It is, therefore, evident that the question of a bona fide action on the part of the employer or waiver on the part of the appellant herein had not been raised. The respondent before the learned single Judge was although very emphatic as regards compliance of requirements of Section 25F (b) of the Industrial Disputes Act but no contention as regards the plea of waiver was raised. Even the question of substantial compliance or bona fide action on the part of the said respondent was not raised. 9. The principle of waiver, although is akin to the principle of estoppel; the difference between the two, however, is that whereas estoppel is not a cause of action ; it is a rule of evidence ; waiver is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration. 10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded, it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct. 11. In Bank of India and others v. O. P . Whenever waiver is pleaded, it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct. 11. In Bank of India and others v. O. P . Swarankar and others etc., 2003 (1) AWC 798 (SC) : 2003 (1) SCCD 199 : (2003) 2 SCC 721 , it was noticed : “115. The Scheme is contractual in nature. The contractual right derived by the employees concerned, therefore, could be waived. The employees concerned having accepted a part of the benefit could not be permitted to approbate and reprobate nor can they be permitted to resile from their earlier stand.” 12. It is neither in doubt nor in dispute that the provision of Section 25F (b) is imperative in character. The provision postulates the fulfilment of the following three conditions : (i) One month’s notice in writing indicating the reasons for retrenchment or wages in lieu of such notice ; (ii) Payment of compensation equivalent to fifteen days, average pay for every completed year of continuous service or any part thereof in excess of six months ; and (iiii) Notice to the appropriate Government in the prescribed manner. 13. The requirement to comply with the provision of Section 25F (b) has been held to be mandatory before retrenchment of a workman is given effect to. In the event of any contravention of the said mandatory requirement, the retrenchment would be rendered void ab initio. 14. In Workman of Sudder Workshop of Jorehaut Tea Co. Ltd. v. Management, (1980) 2 LLJ 124 , whereupon reliance had been placed by the Division Bench, this Court held : “.... That apart, if there be non-compliance with S. 25F, the law is plain that the retrenchment is bad.......” 15. In that case, however, compensation had been computed on the basis of wages previously paid and not on the basis of the Wage Board Award. The retrenchment took place on 5.11.1986. No plea as regard non-payment of compensation calculated on the basis thereof was taken before the Tribunal. Even the award did not proceed on that basis. 16. The new plea based on the facts was not permitted to be raised by the High Court. The retrenchment took place on 5.11.1986. No plea as regard non-payment of compensation calculated on the basis thereof was taken before the Tribunal. Even the award did not proceed on that basis. 16. The new plea based on the facts was not permitted to be raised by the High Court. This Court noticed that the Wage Board Award was subsequent to the retrenchment ; although it was applied retrospectively, i.e., with effect from 1.4.1966. In that situation, it was observed : “..... In the absence of any basis for this new plea, we are unable to reopen an ancient matter of 1966 and, agreeing with the High Court, dismiss the appeal. But the 16 workmen, being eligible admittedly for the Wage Board scale, will be paid the difference for the period between 1.4.1966 to 5.11.1966.” 17. We may furthermore notice that the learned Industrial Tribunal interfered with the retrenchment of the appellant not only on the ground of non-compliance of the provisions of Section 25F (b) of the Industrial Disputes Act but also on the ground of contravention of Rule 77A of the West Bengal Industrial Disputes Rules, stating : “Moreover, the company has not shown by means of a seniority list that the concerned workman was the junior most amongst the same category of workers. When there is such a controversy and when no such list was maintained by the company although maintaining of such lists can be said to be a compulsory compliance of the rules framed under the Industrial Disputes Act on the part of the Company (Vide 77A of the West Bengal Industrial Disputes Rules) it must be held that the retrenchment was illegal. Mere evidence to show the seniority of the workman of a particular category is not enough to justify retrenchment of a workman on the ground of surplus hand.” 18. After a detailed reference to the evidence adduced on behalf of the Management, the Tribunal held : “I do not understand why the company keeps lacuna in observing the legal procedure provided by the rules framed under the statute to maintain peace and harmony. In the industry particularly which are very much formal and not at all difficult to be maintained and can be done with least effort. In the industry particularly which are very much formal and not at all difficult to be maintained and can be done with least effort. This has been very much necessary and essential in this case in its peculiar background when the concerned workman is going to be retrenched within a very short period after his reinstatement with full back wages and incidental benefits by virtue of an award by the Seventh Industrial Tribunal in an earlier Reference Case No. 1647-I.R./IR/11L-24/85 corres-ponding to Case No. VIII-152/86 after he was dismissed from service. The Company should have maintained the seniority list as required under the rule to show from impartial attitude towards the workman in the category to which Krishna Bahadur belongs. That having not been done the action of the Company suffers from informative (sic for infirmities) and it deserves to be nullified.” 19. It would appear from the judgment of the learned single Judge dated 25.9.1996 in Writ Petition No. 1872 of 1996 that correctness or otherwise of the finding of the Industrial Tribunal as regards non-compliance of the provisions of Rule 77A of the West Bengal Industrial Disputes Rules had been questioned. The said contention must be held to have been negatived by the learned single Judge also keeping in view the provisions analogous to Explanation-V appended to Section 11 of the Code of Civil Procedure. The Division Bench of the High Court unfortunately did not address itself to the said question at all. 20. For the reasons aforementioned, the impugned judgment of the Division Bench cannot be upheld. It is set aside accordingly and the judgment of the learned Single Judge upholding the award passed by the Industrial Tribunal is restored. The appeal is allowed. In the facts and circumstances of the case, there shall be no order as to costs.