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2012 DIGILAW 962 (CAL)

Tushar Kanti Roy v. Eighth Industrial Tribunal

2012-10-17

SAMBUDDHA CHAKRABARTI

body2012
Judgment : The respondents nos. 2 to 4 have raised an objection about the maintainability of the present writ petition and as such the issue of maintainability is taken up as a preliminary issue. The present writ petition is directed against an Award dated November 25, 2011 passed by the learned Judge of the Eighth Industrial Tribunal in case No. VIII-25 of 2007. The case of the petitioner, inter alia, is that he was a workman under the respondent no. 2. In the year 1985 he was served with a show-cause notice and after an enquiry the petitioner was ultimately dismissed from service with effect from December 23, 1985. An appeal by the petitioner against that decision failed. In a proceeding under Section 10 of the Industrial Disputes Act before the Tribunal the petitioner denied all the charges leveled against him and challenged the order of dismissal. He prayed for back wages and consequential benefits for the period of the alleged forced unemployment. The respondent no. 2 in turn denied the allegations made by the petitioner. The Tribunal on the evidence held that it was difficult to hold unhesitatingly that the guilt of the petitioner had been clearly established on the basis of the materials on record on the standard of preponderance of probability. The Tribunal held that in this case the question of reinstatement does not arise as the petitioner had crossed the age of retirement on superannuation and declined to grant him back wages. However, the Tribunal considering the relevant aspects held that it would be just and equitable if the workman concerned got 50 per cent. of the wages/ salary from the date of dismissal till the date of retirement on superannuation towards compensation along with all due retirement benefits which he was entitled to get as per rule, if the same had not been already paid. The respondent no. 2 herein was directed to make the payment within one month form the date of the publication of the Award. The said Award was published by the Government of West Bengal, Labour Department on December 27, 2011. Pursuant to the said Award the respondent no. 2 had made over three cheques to the petitioner of diverse amounts which the petitioner had accepted. Now by filing the present writ petition the petitioner has challenged the action on the part of the respondent no. Pursuant to the said Award the respondent no. 2 had made over three cheques to the petitioner of diverse amounts which the petitioner had accepted. Now by filing the present writ petition the petitioner has challenged the action on the part of the respondent no. 2 in misinterpreting the Award and calculating his dues. According to him several factors like promotion, yearly increments, arrears etc. which ought to have been taken into consideration by the respondent no. 2 while making the calculation were, in fact, ignored. Thus, he seeks a Mandamus against the respondents nos. 2 to 4 to pay to him full compensation with full retirement benefits and to recalculate the payment. He has also prayed for a writ of Certiorari by quashing the Award impugned. This has given the respondents an occasion to question the maintainability of the writ petition. Mr. Partha Sarathi Sengupta, learned Advocate appearing for the respondents, submits that after the petitioner had accepted the money he cannot maintain the present writ petition and ask for any amount more than what has been paid to him. Moreover, the Mandamus which the petitioner is now seeking against the respondent no. 2 does not lie. The petitioner having accepted the money “in full and final settlement” of his claims cannot thereafter turn around and pray for the quashing of the Award. For Mr. Pratik Dhar, learned Advocate for the petitioner, acceptance of three cheques cannot prejudice the case of the petitioner and any amount accepted pursuant to an Award “without prejudice” must not defeat his right to assail the same if there are good reasons justifying the same. According to Mr. Dhar the petitioner had accepted the amount “without prejudice” and it is a settled law that if any amount is accepted “without prejudice” that cannot be considered as a factor disentitling him to challenge the Award or ask the respondent no. 2 to pay him more than what he has been paid. In support of his contentions Mr. Dhar relied on the case of Aurohill Global Commodities Limited – Vs.-Maharashtra STC Limited, reported in (2007) 7 SCC 120 where it was held that a certain letter did not constitute a waiver as it was a “without prejudice concurrence”. The petitioner further relied on the case of Bhau Ram –Vs. In support of his contentions Mr. Dhar relied on the case of Aurohill Global Commodities Limited – Vs.-Maharashtra STC Limited, reported in (2007) 7 SCC 120 where it was held that a certain letter did not constitute a waiver as it was a “without prejudice concurrence”. The petitioner further relied on the case of Bhau Ram –Vs. Baij Nath Singh, reported in (1962) 1 SCR 358 where it was held that a statutory right of appeal cannot be presumed to have come to an end because the appellant has in the meantime abided by or taken advantage of something done by the opponent under a decree. The Supreme Court held that the appellant’s act in withdrawing the pre-emption price cannot preclude him from continuing his appeal and the preliminary objection was overruled. In continuation of his further submission that accepting the three cheques from the respondent no. 2 is not fatal to the writ petition the petitioner has also relied on the case of Prashant Ramchandra Deshpande – Vs.-Maruti Balaram Haibatti, reported in 1995 Supp (2) SCC 539. In that case the respondent relying on the case of R. N. Gosain – Vs.-Yashpal Dhir, reported in (1992)4 SCC 683 , argued that the appellant having given an undertaking before the High Court that he would vacate the premises within six months was precluded from approaching the Supreme Court under Article 136 of the Constitution of India. The Division Bench did not agree with the ratio of R. N. Gosain’s case and held that Article 136 of the Constitution of India is a constitutional right and cannot be taken away by legislation by invoking the principle of election or estoppel. There is no estoppel against a statute and the Supreme Court held that no law can be framed much less the principle of election which can stand in the way of the appellant from invoking the constitutional jurisdiction of the Supreme Court. Since the Bench differed with the earlier decision the case was referred to a larger Bench. There is no estoppel against a statute and the Supreme Court held that no law can be framed much less the principle of election which can stand in the way of the appellant from invoking the constitutional jurisdiction of the Supreme Court. Since the Bench differed with the earlier decision the case was referred to a larger Bench. The larger Bench in the case of P. R. Deshpande –Vs.-Maruti Balaram Haibatti, reported in (1998)6 SCC 507 , was in agreement with the view of the referring Bench that the appeal filed under Article 136 of the Consittution of India by special leave could not be dismissed as not maintainable on the mere ground that the appellant had given an undertaking to the High Court on being so directed in order to keep the order of the High Court in abeyance for some time. The repeated submission of Mr. Dhar that the petitioner had accepted the cheques “without prejudice” has no factual foundation. It is true that in the letter dated January 25, 2012 the petitioner wrote that he had received the cheques without prejudice to his rights and contentions on the issue and he has also mentioned in paragraph 14 of the writ petition that he had received the same without prejudice to his other rights. In paragraph 13 of the writ petition he discloses that the respondent no. 2 by a letter dated January 19, 2012 had requested him to visit their office on January 25, 2012 to collect the sum as awarded by the Tribunal. Mr. Sengupta had raised a point that the communication from the respondent no. 2 was not on its own volition but as a result of the petitioner’s asking for money in terms of the Award. A close look at the letter of the respondent no. 2 which has been annexed to the writ petition as Annexure P-3, lends support to the submission of Mr. Sengupta. In the said letter addressed to the petitioner it was specifically mentioned that in terms of the Award, “as communicated by you vide letter dated 27th December 2011” which suggests that the petitioenr had himself asked for the money from the concerned respondents. Mr. Sengupta submits that it was only for this that the respondent no. 2 decided to make the payment, otherwise the respondent no. 2 also might have challenged the Award itself. Mr. Sengupta submits that it was only for this that the respondent no. 2 decided to make the payment, otherwise the respondent no. 2 also might have challenged the Award itself. It also does not appear that the petitioner had accepted those cheques without prejudice to his rights and contentions. In the letter dated January 25, 2012 the petitioner mentioned that the cheques had been accepted without prejudice to his rights and contentions but that letter was not delivered to the respondent no. 2 before January 27, 2012. Mr. Dhar submits that after he had received those amounts he had written a letter but it could not be served before January 27, 2012 as January 26, 2012 was a public holiday. But irrespective of the date of the delivery of any subsequent letter to the office of the respondent no. 2, the petitioner having not indicated on the receipts themselves that he had accepted the amounts without prejudice forfeited his right to ask for more amount from the respondent no. 2. The three receipts annexed to the writ petition as parts of Annexure P-4, however, do not indicate that the petitioner anywhere mentioned “without prejudice” on those three receipts. Mr. Dhar submitted that on the originals this was mentioned. This was a surprising submission as the copies of the receipts had been made after the revenue stamps were affixed on them and if there had been any such endorsement on the original receipt that would have been reflected in the copies as well. The writ petition is also is absolutely silent about his endorsing those on the original receipts. Mr. Sengupta decided to produce the originals of the receipts to show that the petitioner’s claim was not justified. He had not really accepted those cheques “without prejudice”. It is worth mentioning that on two receipts it was specifically typed that payments were being made towards full and final settlement of all the dues as per the Award and his Gratuity respectively. Thus, when the petitioner had accepted those cheques he had not only not accepted them “without prejudice” he accepted that those payments were made in full and final settlement of his claims. Thus, when the petitioner had accepted those cheques he had not only not accepted them “without prejudice” he accepted that those payments were made in full and final settlement of his claims. It may be mentioned that in the letter of intimation, dated January 19, 2012 it was clearly and unambiguously mentioned that the compensation would be paid in full and final settlement of the petitioner’s dues and on discharge of valid receipts towards that end by him. Thus, there was no scope for any confusion that the amount that was paid to him was not in full and final settlement of his dues and when he went to receive the payments he had full notice of the nature of payment that the respondent was making. The petitioner’s assertion in paragraph 14 of the writ petition that he “was made to sign the money receipts”, vaguely suggesting a certain degree of coercion, is also not correct. Anybody making a payment has a right to insist on a receipt and what he would have to endorse on the receipts was also made known to him. Thus, there was no occasion to endorse “without prejudice” on the receipts. His subsequent stand must be taken to be an afterthought. In the case of Jayanta Nath Majumdar –Vs.-State of West Bengal and others, reported in 1997(1) CHN 137 , a Division Bench of this Court had held that when the Award had been accepted the petitioner could not be allowed to play hot and cold at the same time. A person cannot approbate and reprobate. This should be particularly kept in mind when the jurisdiction of high prerogative writ is involved. The petitioner also having accepted the amount and in full and final settlement of his dues cannot now be allowed to turn around and say that his acceptance was “without prejudice” and, therefore, it cannot disentitle him to invoke the writ jurisdiction. I have already seen that the petitioner has not accepted it “without prejudice”. On the contrary he recorded his fullest satisfaction that the payment was made in full and final settlement of the amount. Analogy may be drawn to the provisions contained in Section 18 to the Land Acquisition Act, 1894. Under Section 18 a person interested, if he has not accepted the Award may require the Collector to make a reference to the civil court for determination of his compensation. Analogy may be drawn to the provisions contained in Section 18 to the Land Acquisition Act, 1894. Under Section 18 a person interested, if he has not accepted the Award may require the Collector to make a reference to the civil court for determination of his compensation. A question quite frequently arises for determination is whether a person having accepted the compensation can still require a Collector to make such reference. In the case of Ashwani Kumar Dhingra –Vs.-State of Punjab, reported in AIR 1992 SC 974 the Supreme Court had held that the person interested in order to enable him to seek the reference can do so only if he does not accept the Award. Once the compensation awarded in pursuance of the Award is accepted without protest the person concerned may lose his right to a reference for various matters mentioned in Section 18 of the Land Acquisition Act. The judgements cited by Mr. Dhar can hardly be applied to the facts of the present case. The case of Bhau Ram (Supra) is distinguishable on finer points. In that case the appellant had withdrawn the price of preemption which was deposited by the respondent no. 1 in the court below. The majority judgement had accepted the principle that a person who takes a benefit under an order de hors the claim on merits cannot repudiate that part of the order which is detrimental to him because the order is to take effect in its entirety. The Supreme Court held that a vendee in a pre-emption suit against whom a decree is passed takes no benefit thereunder. The price of pre-emption cannot be characterised as a benefit under the decree. It is only in the nature of compensation to the vendee for the loss of his property. The majority judgement held that it was for this reason that the well settled principles did not apply to a pre-emption decree. But in this case the petitioner had definitely accepted the benefit under the Award. In the case of P. R. Deshpande (Supra) High Court had directed the appellant to file an undertaking before court that he would vacate the premises within six months. The three-judge Bench of the Supreme Court held that by directing a party to give an undertaking no court can scuttle or foreclose a statutory remedy of appeal, much less a constitutional remedy. The three-judge Bench of the Supreme Court held that by directing a party to give an undertaking no court can scuttle or foreclose a statutory remedy of appeal, much less a constitutional remedy. In the present case the acceptance of his dues in full and final settlement of the claim was not pursuant to any direction by the labour court and in this vital aspect the present case differs from the one relied on by the petitioner. Again, the case of Aurohill Global Commidities Ltd. (Supra) is not factually applicable to the present one. The petitioner not having accepted the money without prejudice cannot draw on the principle decided therein. Mr. Sengupta submits that if the petitioner had not approached the concerned respondents then they themselves might have challenged the Award. It was only because the petitioner had asked for payment in terms of the Award that they decided not to challenge it. This is quite an acceptable submission. The respondents while making the payment must have been in legitimate expectation that they would not have to face further litigation over the Award passed by the Tribunal and they cannot be faulted if they had lulled a reasonable belief that this would put the dispute between the petitioner and the respondent no. 2 to an end. The petitioner by his conduct had induced the respondents to believe in a certain state of things and accordingly is now estopped from altering his stand to the detriment of the respondents. Moreover, the effect of accepting the amount in full and final settlement of his dues clearly amounts to an act of waiver on the part of the petitioner. It is now settled that waiver is a voluntary relinquishment of a known right. That the petitioner had a right to challenge the Award must have been known to him and nobody had compelled him to accept the payment. On the other hand he himself had written to them in the first instance. Thus, he had relinquished his right voluntarily and thereby induced the respondents to alter their stand to challenge the Award to their detriment. In substance the principle on which the writ petitioner is estopped from challenging the Award is based on the doctrine of election. On the other hand he himself had written to them in the first instance. Thus, he had relinquished his right voluntarily and thereby induced the respondents to alter their stand to challenge the Award to their detriment. In substance the principle on which the writ petitioner is estopped from challenging the Award is based on the doctrine of election. This doctrine applies to cases when a man as against another has two alternative but mutually exclusive courses to resort to and he is to make an election between the two. If he by his conduct induces the other man to believe that he is pursuing a certain course leaving aside the other and as a result of it that induced other man alters his course of action he is not permitted to subsequently alter his stand by resorting to the other course which he had intentionally decided not to follow. Spencer Bower and Turner in their celebrated work on estoppel by representation had explained the essence of the doctrine of election: “It is of the essence of election that the party electing shall be “confronted” with two mutually exclusive courses of action between which he should mast, in fairness to the other party, make his choice. ………….… In election he is always found confronted by a choice of two alternatives one of which he must eventually choose, to the exclusion of the other.” (Ref. Spencer Bower and Turner – The Law Relating to Estoppel by Representation – 3ed Edition, Indian Reprint, Calcutta 1994 – pp. 313-314) The same authors included conduct of litigants within the four fields to which the doctrine may be applied. Courts also have persistently applied this doctrine to this area. The whole thing boils down to whether a person having reaped the benefit out of a judgement to the litigation can still question the validity of the same. In re Lart. Wilkinson –Vs.-Blades., reported in 1896(2) Chancery 788 Chitty J. had held that a person who is fully cognizant of the proceedings and who stands by and deliberately takes the benefit of a decision on the construction of a will under which a particular fund is distributed, is estopped by his conduct from reopening any of the questions covered by the former judgement by means of a fresh action. Although this judgement was delivered in the context of the construction of a will the principle deducible therefrom is of universal application. A litigant who has taken the benefit either in whole or in part of a decision of an inferior tribunal which has gone in his favour is precluded from a plea by way of an appeal or otherwise between the same parties that the decision was wrong or even if it was partly right was erroneously decided as to the residues. He is thus estopped from raising any such plea. Reference may be made to another case where the same principle was applied in the context of an action for specific performance of a contract or alternatively for damages. In the case of Meng Leong Development Pte Ltd. –Vs. Jip Hong Trading Co Pte Ltd., reported in (1985)1 All ER 120 the Judicial Committee of the Privy Council held that the purchaser had made an election to accept the trial Judge’s Award of damages and abandoned his right of appeal seeking specific performance when he demanded and accepted the deposit of damages passed by the trial Court. It was further held that since the vendor had altered his position to his detriment by raising and paying over the damages when he would not have been required to do so if the purchaser had sought specific performance on appeal, the purchaser was estopped from seeking specific performance on appeal. Lord Templeman delivering the majority judgement held that “the vendor was only liable to pay damages or to perform the contract and was not bound to suffer the infliction of both remedies, even with the hope of recovering from the effect of one of them in due course, subject to any order the court might care to make about costs or delay. The vendor having been obliged by the purchaser to comply with the order to pay damages was harassed by the order for specific performance. Once the damages had been raised and paid and accepted the purchaser was estopped by election from appealing against the order for the payment of those damages.” This is all that the law of approbation and reprobation in essence is about. Once the damages had been raised and paid and accepted the purchaser was estopped by election from appealing against the order for the payment of those damages.” This is all that the law of approbation and reprobation in essence is about. In the case of Bhau Ram (Supra) the Supreme Court had accepted in principle that a person who takes benefit under an order de hors the claim on merits cannot repudiate the part of the order which is detrimental to him, because the order is to take effect in its entirety. In the present case the conduct of the petitioner is very significant. The company has responded to his letter and made the payment which the petitioner had accepted in full and final settlement of his dues. From his conduct it cannot also be inferred that he ever considered the Award not to be binding on him. This is not a case where the petitioner by his consistent and unequivocal conduct had given out to the respondent company that he was not willing to accept the Award of the trial Court. On the contrary his conduct was such which made the company alter its position to its detriment as he had accepted the amount in full and final satisfaction of the sum awarded. This is a case in which the equitable principle of estoppel precludes the writ petitioner from challenging the Award. Judicial decisions at times expressed some misgivings about the application of such technical doctrine like estoppel, res judicata etc. to industrial adjudications. The controversy has now been set at rest. After exhaustively discussing different judgements the Supreme Court in the case of Steel Authority of India Limited –Vs.-Union of India and Others, reported in AIR 2006 SC 3229 applied the principle to industrial adjudication having regard to the reference made by the appropriate Government. Thus there is no bar in applying these principles to the facts of the present case. Another aspect of the case requires to be highlighted. The petitioner in the writ petition has prayed for a writ of Mandamus upon the respondents numbers 2 to 4 to pay to the petitioner full compensation in lieu of 50 per cent. of the wages with full retirement benefit. It is a trite law now that writ against the Calcutta Electric Supply Corporation Limited does not lie unless it acts in discharge of its statutory duties. of the wages with full retirement benefit. It is a trite law now that writ against the Calcutta Electric Supply Corporation Limited does not lie unless it acts in discharge of its statutory duties. In the case of Raghuraj Singh and Company (Contractors) Pvt. Ltd. –Vs.-CESC Limited and others, reported in 1998(II) CHN 325 this Court had held that a writ against the Corporation may be maintainable as regards its activities relating to supply of electrical energy but no writ shall lie against it for enforcing a contract. In the case of Mithai Lal Passi –Vs.-CESC Limited and others, reported in 2003(3) CHN 357 this Court had occasion to consider whether an employee of the CESC Limited could invoke the writ jurisdiction of the High Court being dissatisfied with the order of termination of service. The Court unequivocally held that the CESC authority, the employer, could not be said to be a ‘State’ within the meaning of Article 12 of the Constitution of India for the purpose of challenging an order of termination of service of its employees. Therefore, the petitioner’s prayer for a Mandamus is clearly not maintainable against those respondents. The petitioner has also prayed for setting aside of the Award after taking the benefit of it. A question was put by this Court whether the petitioner was willing to refund the amount to the respondent no. 2. Mr. Dhar, the learned counsel for the respondents on instruction submitted that it was no longer possible. Such being the position the petitioner can never now ask for an order setting aside of the Award which has been satisfied by the payment received by him. Thus, there is sufficient merit in the preliminary objection by the respondents regarding the maintainability of the writ petition. What the writ petitioner in fact was trying to do has been disapproved by Scrutton L. J. in Dexters Limited –Vs.-Hill Crest Oil Company (Bradford) Limited, reported in (1926) I K B 348 saying “So, in my opinion you cannot take the benefit of a judgement as being good and then appeal against it as being bad”. What the writ petitioner in fact was trying to do has been disapproved by Scrutton L. J. in Dexters Limited –Vs.-Hill Crest Oil Company (Bradford) Limited, reported in (1926) I K B 348 saying “So, in my opinion you cannot take the benefit of a judgement as being good and then appeal against it as being bad”. A judge faced to deal with a similar situation feels equally startled like His Lordship “to hear it argued that a person can say the judgement is wrong and, at the same time, accept payment under the judgement as being right.” It will thus be inequitable to admit the writ petition challenging the Award the benefit of which has already been taken by the petitioner in full and final satisfaction of the dues. The preliminary objection thus succeeds and the writ petition is dismissed. Since this writ petition is being dismissed without calling for an affidavit allegations made therein are deemed to have been denied by the respondents. There shall, however, be no order as to costs.