Jharkhand High Court

M/S. Bharat Coking Coal Ltd. ... vs Brij Nath Pandey on 6 November, 2023

                        1                                  LPA No.142/2021

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
             L.P.A. No.142 of 2021
                                   ------

1. M/s. Bharat Coking Coal Ltd. represented through its Chairman-
  cum-Managing Director, At Koyala Bhawan, P.O. Koyala Nagar,
  P.S.-Saraidhela, District-Dhanbad.
2. The Director (Personnel), M/s. Bharat Coking Coal Ltd., At Koyala
  Bhawan, P.O. Koyala Nagar, P.S.-Saraidhela, District-Dhanbad.
3. The General Manager (P&IR), M/s. Bharat Coking Coal Ltd., At
  Koyala Bhawan, P.O. Koyala Nagar, P.S.-Saraidhela, District-
  Dhanbad.
4. The General Manager, Bastacolla Area No.IX, M/s. Bharat Coking
  Coal Ltd., At-Bastacolla, P.O. & P.S.-Jharia, District-Dhanbad.
5. The Project Officer, Bastacola Colliery, M/s. Bharat Coking Coal
  Ltd., At-Bastacolla, P.O. & P.S.-Jharia, District-Dhanbad.
                ....     ....                      Respondents/Appellants
                            Versus

1. Brij Nath Pandey, son of Late Dhan Bihari Pandey, resident of
  Geeta Bhawan, Jagjivan Nagar, P.O.-Jagjivan Nagar, P.S.-
  Saraidhela, District-Dhanbad.
                ....        ....             Writ Petitioner/Respondent

2. State of Jharkhand through          Superintendent          of   Police   (S.P.)
  Dhanbad, P.O., P.S. & District-Dhanbad
                                            ....    ....            Respondent

CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
        HON'BLE MR. JUSTICE NAVNEET KUMAR
                  ------
      For the Appellants                 : Mr. Anoop Kr. Mehta, Advocate
      For the Pvt. Respondent           : Mr. Apurb Lal, Advocate
                                         : Mr. Niranjan Singh, Advocate
                               ------

14/Dated: 06.11.2023

Per Sujit Narayan Prasad, J.

1. The instant intra-court appeal preferred under Clause-10 of

Letters Patent is directed against the order/judgment dated

04.03.2020 passed by the learned Single Judge of this Court in

W.P.(S) No.3238 of 2014, by which, while allowing the writ petition,

the direction has been passed upon the respondents (the appellants

herein) to treat the age of the writ petitioner as mentioned in the

matriculation certificate, which was duly accepted by the

management, with all consequential benefits.

2. The brief facts of the case, as per the pleading made in the writ

petition, required to be enumerated, are as hereunder:-

3. It is the case that the writ petitioner has joined the service on

01.07.1972 in the capacity of P.F. Clerk at Ghanudih Colliery and

after his satisfactory service, he superannuated on 31.12.2013 from

the post of Office Superintendent on attaining the age of 60 years.

However, by issuance of letter dated 06.11.2012 (Annexure-2 to the

writ petition), writ petitioner was made to retire prematurely from the

service with effect from 28.02.2013 considering his date of birth as

16.02.1953, whereas his date of birth as per the matriculation

certificate is 31.12.1953.

4. However, the writ petitioner was allowed to resume his service

on 30.09.2013 on the basis of so called settlement dated 25.09.2013

(Annexure-3 to the writ petition). After resuming his duties, the writ

petitioner also made representation for release of salary and other

dues for the intervening period when he was deprived from attending

duties, but no heed to that effect.

5. Therefore, the writ petitioner, being aggrieved with same, has

filed a writ petition being W.P.(S) No.3238 of 2014 to release the

salary for the period between 01.03.2013 to 29.09.2013.

6. One of the grounds taken by the learned counsel for the

petitioner before the writ Court that there was no settlement between

the parties and the respondents have illegally deprived the writ

petitioner from attending the duties.

7. Learned Single Judge, on appreciation of rival submissions

advanced on behalf of the respective parties, has allowed the writ

petition directing the respondent-BCCL to treat the age of the

petitioner, as mentioned in the matriculation certificate, which was

duly accepted by the management, with all consequential benefits.

8. The respondent-BCCL, being aggrieved with the order passed

by the learned Single Judge, has preferred the present intra-court

appeal.

9. Mr. Anoop Kr. Mehta, learned counsel appearing for the

appellant-BCCL has submitted that similar issue fell for consideration

before the Coordinate Bench of this Court in L.P.A. No.41 of 2018.

10. The Coordinate Bench of this Court vide order dated

18.01.2020 has allowed the aforesaid appeal by interfering with the

order passed by the learned Single Judge and in consequence

thereof, the writ petition was dismissed.

11. The learned Single Judge, while allowing the writ petition being

W.P.(S) No. 7052 of 2011, has directed the respondent management

to make payment of back wages in favour of the writ petitioner within

six weeks in the light of the agreement entered in between the

management and the workman.

12. The further ground has been taken that the learned Single

Judge has also erred in passing the order while allowing the writ

petition being W.P.(S) No.3238 of 2014 by making an observation

that the employee had no alternative but to sign the agreement.

13. It has been contended on behalf of the appellants that once the

workman has taken the recourse by raising the dispute and when the

management has not acceded, it had gone to the competent

authority of the State Government for the purpose of conciliation but

outside the conciliation, the settlement dated 25.09.2013 has arrived

at in due format as under form "H" provided under the provision of

Rule 58 of the Industrial Disputes (Central) Rules, 1957, appended

as Annexure-5 to the paper book.

14. The respondent, since has raised the dispute and as such, it

was well available to him not to accept the said agreement, rather to

contest the dispute by waiting for the failure report which is to be

sent before the appropriate government for reference before the

adjudicator for its adjudication.

15. We have heard the learned counsel for the parties, perused the

documents available on record as also considered the finding

recorded by the learned Single Judge in the impugned order.

16. It appears from the paper book that this Court in the similar

circumstances has passed order in L.P.A. No.41 of 2018, wherein,

by taking into consideration the object and intent of Section 18 of the

Industrial Disputes Act, wherein, if settlement has been arrived at

outside in course of conciliation proceeding, the same have the

statutory fervor.

17. The Coordinate Bench of this Court by taking into

consideration the aforesaid object of the statutory mandate, has

interfered with the order passed by the learned Single Judge, which

was the subject matter of the intra-court appeal being L.P.A. No.41

of 2018 and has quashed and set aside the same by dismissing the

writ petition.

18. This Court in order to appreciate the aforesaid finding, deems it

fit and proper to refer certain relevant sections of the Industrial

Disputes Act, 1947. The relevant portion in this context, is the

provision of Section 18 of the Industrial Disputes Act, 1947 which

reads hereunder:

"18.Persons on whom settlements and awards are binding.-

(1) A settlement arrived at by agreement between the employer

and workman otherwise than in the course of conciliation

proceeding shall be binding on the parties to the agreement.

(2) [Subject to the provisions of sub-section (3), an arbitration

award] which has become enforceable shall be binding on the

parties to the agreement who referred the dispute to arbitration.]

[(3)] A settlement arrived at in the course of conciliation

proceedings under this Act [or an arbitration award in a case

where a notification has been issued under sub-section (3-A) of

section 10-A] or [an award [of a Labour Court, Tribunal or

National Tribunal] which has become enforceable] shall be

binding on-

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as

parties to the dispute, unless the Board, [arbitrator,] [Labour

Court, Tribunal or National Tribunal], as the case may be,

records the opinion that they were so summoned without proper

cause;

(c) where a party referred to in clause (a) or clause (b) is an

employer, his heirs, successors or assigns in respect of the

establishment to which the dispute relates;

(d) where a party referred to in clause (a) or clause (b) is

composed of workmen, all persons who were employed in the

establishment or part of the establishment, as the case may be,

to which the dispute relates on the date of the dispute and all

persons who subsequently become employed in that

establishment or part."

19. It is evident from Section 18 as referred hereinabove that the

provision has been made under sub section 1 thereof about arriving

at a settlement between the employer and the workman otherwise

than in course of conciliation proceeding which shall be binding on

the parties. Sub section 2 of the aforesaid provision speaks about a

settlement in course of conciliation proceeding. The other relevant

provision is Rule 58 of the Industrial Disputes (Central) Rules 1957

(hereinafter referred to as the 'Rule 1957') under Part VIII thereof.

The process how to enrich in a memorandum of settlement, has

been provided which reads hereunder as:

"58. Memorandum of Settlement-(1) A settlement arrived at in

the course of conciliation proceedings or otherwise, shall be in

Form H.

(2) The settlement shall be signed by-

(a) in the case of an employer, by the employer himself, or by his

authorized agent, or when the employer is an incorporated

company or other body corporate, by the agent, manager or other

principal officer of the corporation;

[(b) in the case of the workmen, by any officer of a trade union of

the workmen or by five representatives of the workmen duly

authorised in this behalf at a meeting of the workmen held for the

purpose;]

[(c) in the case of the workman is an industrial dispute under

section 2-A of the Act, by the workman concerned.]

(3) Where a settlement is arrived at in the course of conciliation

proceeding the Conciliation Officer shall send a report thereof to

the Central Government together with a copy of the memorandum

of settlement signed by the parties to the dispute.

(4) Where a settlement is arrived at between an employer and his

workmen otherwise than in the course of conciliation proceeding

before a Board or a Conciliation Officer, the parties to the

settlement shall jointly send a copy thereof to the Central

Government, the Chief Labour Commissioner (Central) New Delhi,

and the Regional Labour Commissioner (Central) and to the

Assistant Labour Commissioner (Central) concerned."

20. It is evident from the aforesaid provision that the settlement

arrived at in the conciliation proceedings or otherwise shall be in

Form-H. Sub section 2 thereof provides that the settlement shall be

signed in the case of an employer, by the employer himself, or by his

authorized agent, or when the employer is an incorporated company

or other body corporate, by the agent, manager or other principal

officer of the corporation while in the case of the workman, by any

officer of a trade union of the workmen or by five representatives of

the workmen duly authorized in this behalf at a meeting of the

workmen held for the purpose. It is, thus, evident that the

memorandum of settlement would take shape of the statutory fervor

in view of provision of Section 18 of the Industrial Disputes Act, if the

settlement will be arrived at in pursuance to provision of Rule 58 of

the Rule 1957 as referred above.

21. It is evident from the provision of sub section 1 to Section 18

which speaks about a settlement otherwise than in course of

conciliation. Admittedly herein the dispute has not been raised,

meaning thereby, there is no conciliation proceeding and hence the

memorandum of settlement is a settlement arrived at in pursuance to

the provision of sub section 1 to Section 18 since the provision of

sub section 1 to Section 18 is binding on the parties to the

agreement, therefore, whatever the terms has been settled in the

settlement dated 25.09.2013 binds both the writ petitioner and the

management herein.

22. Herein, when the learned Single Judge has considered the

factual aspect involved in the case in hand, has found that also it is

the admitted case of the workman who is the private respondent that

he has entered into an agreement on 25.09.2013, wherein, he has

accepted for reinstatement in service without claiming any back

wages, the relevant paragraph of the said agreement is being

referred as under:-

"2. The workman concerned shall not claim any back

wages for the idle period and the period of idleness shall

be treated as dies non, however continuity of the service

shall be maintained for the purpose of payment of gratuity

only. Pension amount due for intervening period shall be

deposited by the workman in due course."

23. It is the admitted case of the workman also that the dispute

having been raised, which was referred before the competent

authority under the Labour Department for conciliation.

24. The private respondent had appeared in the conciliation

proceeding, wherein, the settlement was arrived at with the

acceptance of the workman that he will not claim the back wages if

he will be reinstated in service, as would appear from the terms of

the said settlement as referred and quoted hereinabove.

25. The aforesaid settlement having been entered said to be in

view of the provision of Section 18(1) of the Industrial Disputes Act,

1947 which has got statutory fervor.

26. The moment settlement has been arrived at in between the

private respondent and the management and the same has also

acted upon by the private respondent on the order of reinstatement

passed by the management and thereafter, it is not available for the

private respondent to negate the second part of the settlement,

whereby and whereunder, he himself has acceded not to claim the

back wages for the intervening period.

27. This Court is conscious of the fact that once the agreement has

been entered and part of the same has been accepted, then it will

not be available for one of the party not to accept the other part

otherwise, the same will be against the settled position of law that

there cannot be approbate or reprobate, as has been held by the

Hon'ble Apex Court in the case of R. N. Gosain vs. Yashpal Dhir,

(1992) 4 SCC 683. Paragraph-10 of the said judgment is being

reproduced as hereunder:

"10. Law does not permit a person to both approbate and

reprobate. This principle is based on the doctrine of

election which postulates that no party can accept and

reject the same instrument and that "a person cannot say

at one time that a transaction is valid and thereby obtain

some advantage, to which he could only be entitled on the

footing that it is valid, and then turn round and say it is void

for the purpose of securing some other advantage". [See :

Verschures Creameries Ltd. v. Hull and Netherlands

Steamship Co. Ltd. [(1921) 2 KB 608, 612 (CA)] , Scrutton,

L.J.] According to Halsbury's Laws of England, 4th Edn.,

Vol. 16, "after taking an advantage under an order (for

example for the payment of costs) a party may be

precluded from saying that it is invalid and asking to set it

aside". (para 1508)"

In Suzuki Parasrampuria Suitings Private Limited vs.

Official Liquidator of Mahendra Petrochemicals Limited (In

Liquidation) and Ors., (2018) 10 SCC 707, the Hon'ble Apex Court

at paragraphs 12 & 13 has laid down which reads as hereunder:

"12. A litigant can take different stands at different times but

cannot take contradictory stands in the same case. A party

cannot be permitted to approbate and reprobate on the

same facts and take inconsistent shifting stands. The

untenability of an inconsistent stand in the same case was

considered in Amar Singh v. Union of India [Amar Singh v.

Union of India, (2011) 7 SCC 69 : (2011) 3 SCC (Civ) 560] ,

observing as follows: (SCC p. 86, para 50)

"50. This Court wants to make it clear that an

action at law is not a game of chess. A litigant who

comes to court and invokes its writ jurisdiction

must come with clean hands. He cannot

prevaricate and take inconsistent positions."

13. A similar view was taken in Joint Action Committee of

Air Line Pilots' Assn. of India v. DGCA [Joint Action

Committee of Air Line Pilots' Assn. of India v. DGCA, (2011)

5 SCC 435] , observing: (SCC p. 443, para 12)

"12. The doctrine of election is based on the rule

of estoppel--the principle that one cannot

approbate and reprobate inheres in it. The

doctrine of estoppel by election is one of the

species of estoppels in pais (or equitable

estoppel), which is a rule in equity. ... Taking

inconsistent pleas by a party makes its conduct far

from satisfactory. Further, the parties should not

blow hot and cold by taking inconsistent stands

and prolong proceedings unnecessarily."