The High Court · 2023
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) L.P.A. No. 43 of 2021 Kali Singh, aged about 66 years, s/o late Ladu Singh, r/o village-Hirapur, PO-Singdaha, PS-Topchanchi, District-Dhanbad ……Petitioner/Appellant Versus 1. Chairman-cum-Managing Director, M/s Bharat Coking Coal Limited, having its office at Koyal Bhawan, PS-Saraidhela, PO-Koyala Nagar, District-Dhanbad 2. Project Office, Jogidih Colliery of M/s Bharat Coking Coal Limited, Area-III, Govindpur, PO & PS-Govindpur, District-Dhanbad 3. General Manager, Govindpur Area, M/s Bharat Coking Coal Limited, PO & PS-Govindpur, District-Dhanbad …... Respondents CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Appellant For the Respondents : Mr. S.N. Das, Advocate : Mr. Amit Kumar Das, Advocate Mr. Sahay Gaurav Piyush, Advocate -------------- O R D E R 29th August 2023 Per, Shree Chandrashekhar, J.
Legal Reasoning
The workman has challenged the order dated 18th December 2020 passed in W.P(L) No.2627 of 2014. 2. The workman claimed that his date of birth is 14th February 1954 but, while more than seven years of his service remained, he was made to superannuate with effect from 30th June 2006. This led to the raising of a dispute which was referred to the Central Government Industrial Tribunal No.1 at Dhanbad (in short, “Industrial Tribunal) vide Notification dated 9th November 2009 in the following terms:
Legal Reasoning
“Whether the action of the management of Jogidih colliery of M/s BCCL in superannuating Sri Kali Singh, Attendance Clerk w.e.f. 30.06.2006 when there is discrepancy in his date of various records is legal and justified? To what relief is the workman concerned entitled?” 3. The Industrial Tribunal has answered the aforesaid reference in favor of the workman and made the Award dated 15th March 2013 holding that the action of the Management of Jogidih Colliery of 2 L.P.A No.43 of 2021 M/s Bharat Coking Coal Limited (in short, “BCCL”) in superannuating the workman with effect from 30th June 2006 is not legal and justified. The Industrial Tribunal has therefore ordered reinstatement of the workman with continuation in service within 10 days. 4. The Award was not challenged by the BCCL and a settlement in Form-H was entered into between the parties on 17th August 2013, which recorded the following terms and conditions: “1. As per the above Award, The DOB of Sri Kali Singh, Attendance Clerk Pers No.00238303 of Jogidih Colliery, Govindpur Area is accepted as 14.02.1954 instead of 27.06.1946. 2. Sri Kali Singh, Attendance Clerk, Pers. No.00238303 of Jogidih Colliery, Govindpur Area will not claim any back wages for the idle period. 3. The period of idleness shall be treated as dies-non. However, continuity of service shall be maintained for the purpose of Gratuity. 4. Pension amount dues for the intervening period shall be deposited by Sri Kall Singh, Attendance Clerk, Pers. No. 00238303 of Jogidih Colliery, Govindpur Area in due course. 4. 5 Sri Kali Singh, Attendance Clerk, Pers.No.00238303 of Jogidih Colliery, Govindpur Area as well as representing union will withdraw the case for DOB in respect of Sri Kali Singh un-conditionally if any pending before any Forum i.e. judicial or quasi-judicial like Labour Court, High Court etc.” 5. The workman who is the appellant before us tendered his joining on 20th August 2013. But, at the same time, he challenged a portion of the aforesaid settlement dated 17th August 2013 whereby he was denied back wages, by filing W.P(L) No.2627 of 2014. 6. The writ Court has held as under: “7. Before delving into the issue as to whether workman is entitled for back wages in view of reinstatement into service, it would be pertinent to examine as to whether settlement dated 19.08.2013, arrived at in pursuance of Section 18(1) of the I.D. Act, 1947 is binding on the parties or not ? 8. Since the settlement arrived at binds both the parties, therefore, the settlement dated 19.08.2013, which contains two fold settlement, first, regarding reinstatement of the writ petitioner and second, forgoing of the right of back wages as also not to make any claim for the period of idleness is binding on both the parties. Since the terms of memorandum binds the parties, therefore, it can comfortably be said that it is not open to the writ petitioner to question the memorandum of settlement which has taken shape of the statutory fervor in terms of Section 18(1) of the Industrial Disputes Act, 1947. The issue fell for consideration before the Hon’ble Supreme Court in the case of Mohan Mahto. vs. Central Coalfield Ltd. & Ors. reported in (2007) 8 SCC 549 wherein the Hon’ble Supreme Court observed that the settlement arrived in pursuant to Section 18 is having its binding effect having its statutory fervor. Since the settlement is binding upon the parties, therefore, it is not permissible for the writ petitioner to challenge the same as once he has entered into the settlement, submitted himself to the terms and conditions 3 L.P.A No.43 of 2021 of the settlement, taken benefit of reinstatement and subsequently, questioned it before Court of Law. Admittedly, the settlement dated 19.08.2013 has got statutory force and hence, it has got its binding effect and further, since in terms of the memorandum of settlement dated 05.11.2011, the petitioner has been reinstated in service treating the period of idleness as ‘Dies Non’, for which no back wages can be claimed, the settlement cannot be taken into piecemeal and the entire settlement is binding on the parties. In case of R.N. Gosain vs. Yashpal Dhir, reported in (1992) 4 SCC 683 in para-10, the Hon’ble Supreme Court has held as under: “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”. : Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd, Scrutton, L.J.] According to Halsbury’s 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)” [See
Decision
Thus, it is not permissible for the writ petitioner to accept one part of the settlement and decline to accept the other part, which is contrary to the position of law to the effect that it is not allowed to a person to both approbate and reprobate.” 7. Mr. S.N. Das, the learned counsel for the appellant submits that the Award dated 15th March 2013 made by the Industrial Tribunal could not have been modified by the BCCL inasmuch as an extraneous condition as to treating the period between 30th June 2006 and 20th August 2013 as “Dies Non” has been incorporated in the settlement dated 17th August 2013, and thereby, the workman has been illegally denied back wages. On the other hand, Mr. Amit Kumar Das, the learned counsel for the BCCL would submit that the settlement dated 17th August 2013 is an outcome of negotiations between the parties as a result of which the workman who himself is a party to the settlement dated 17th August 2013 agreed to forgo his claim for back wages and now he cannot turn around and challenge the said condition incorporated therein. According to the BCCL, the settlement dated 17th August 2013 is binding on the workman under section 18 of the Industrial Disputes Act, 1947 which provides as under: “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 4 L.P.A No.43 of 2021 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.” 8. The object behind the Industrial Disputes Act is to maintain industrial peace and harmony and, in furtherance of this object, the Court may not interfere with an Award which would be in furtherance of maintaining the industrial peace and harmony. The Award dated 15th March 2013 was not challenged by the BCCL and in the settlement dated 17th August 2013 there is a specific recital that by moving Note Sheet No.26 dated 18th July 2013 necessary approval of the competent authority for implementation of the Award dated 15th March 2013 was taken on 9th August 2013. In the settlement dated 17th August 2013, there is no reference to the workman forfeiting his rights or some of his rights flowing to him by virtue of the Award dated 15th March 2013. As we have indicated, the Industrial Tribunal recorded a specific finding that the action of the Management of the BCCL in superannuating the workman with effect from 30th June 2006 was not legal and justified. Now once this finding remains on the record, the natural consequence shall be that the workman becomes entitled to claim salary and other emoluments, to which he would have been entitled to having worked during that period. By superannuating the workman on 30th June 2006, the Management illegally prevented him from discharging his duty and for such act of the Management the workman cannot be penalized. This is a well-settled proposition in law that wherever it is found that the termination order was illegal and, as a consequence of which the workman could not discharge 5 L.P.A No.43 of 2021 his duty, he shall be entitled to claim full wages and other emoluments. No doubt the grant of full back wages is normally not automatic and it may depend on several factors but, in no case, denial of back wages can be without any reason. In the circumstances of the case, essentially it is for the employer to plead and prove that the workman was not entitled to back wages. The learned counsel for the appellant referred to “Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 32 wherein the Hon’ble Supreme Court has observed as under: “22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.” 9. The contention raised on behalf of the BCCL that after having signed the settlement dated 17th August 2013 the workman cannot challenge the terms of the settlement is liable to be rejected. 10. By virtue of the Award dated 15th March 2013, the BCCL was required to reinstate the workman in service. However, the learned counsel for the BCCL has submitted that it was on account of negotiations between the BCCL and the sponsoring Union that the BCCL did not challenge the Award and the workman made concessions as regards back wages. However, no material was produced before the writ Court in this connection and, moreover, the conditions of a valid 6 L.P.A No.43 of 2021 settlement are not established by the BCCL. No doubt the settlement dated 17th August 2013 is a matter of record and, therefore, this can be inferred that there were negotiations between the parties. But then, the Court is required to look into the circumstances of the case and the bargaining power of the parties to decide on the validity of the settlement. The salary of an employee partakes the nature of “property” and the right to property is a Constitutional right of which the workman cannot be deprived of without following a procedure established in law. Now this can be contended that the workman himself forfeited his claim for back wages in a bargain and such a procedure is recognized under section 18 of the Industrial Disputes Act. So the circumstances of the case and the bargaining power of the parties have to be looked into to find out whether the settlement is an outcome of coercion by the employer. 11. Section 23 of the Contract Act, 1872 reads as under: “23. What considerations and objects are lawful, and what not.—The consideration or object of an agreement is lawful, unless— it is forbidden by law1; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful, is void.” 12. A valid settlement is a necessary condition to bind the workman by virtue of section 18 of the Industrial Disputes Act. There may be cases where the statutory requirements are not fulfilled and the impugned action was put to discussions and deliberations and ultimately a settlement is arrived at. However, such a settlement shall be a nullity having regard to non-compliance with the mandatory requirements for taking the impugned action. Similarly an unconscionable settlement cannot be given effect to; the stipulation under clauses (2) and (3) of the settlement dated 17th August 2013 are extraneous conditions which have been imposed upon the workman. Furthermore, it is apparent from clause (5) that the BCCL put a condition on the workman that he shall withdraw all litigations relating to the date of birth pending before any Forum i.e judicial or quasi-judicial like Labour Court, High Court etc. unconditionally. The cases of nature 7 L.P.A No.43 of 2021 like the present one bring a difficult situation before the Courts. At times this becomes really difficult to find out the element of coercion and undue influence in bringing about a settlement. Therefore, it becomes necessary to make an inquiry about the nature of the order in respect of which a settlement has been recorded. The Award dated 15th March 2013 directing reinstatement of the workman with continuation in service would have provided back wages to the workman. Now the claim of the BCCL that it agreed not to challenge the Award in lieu of the workman relinquishing his right to back wages cannot be accepted. Even if the Award was challenged before the writ Court and an order of stay was granted the workman would not have been in a worse position. In the event the Award is stayed the workman continues to get his last pay drawn salary and, therefore, the workman tendering his joining on 20th August 2013 was not by virtue of the settlement. This becomes further clear from the Note Sheet a reference of which is made in the settlement dated 17th August 2013. Clearly the plea put forth before the writ Court that the settlement dated 17th August 2013 cannot be accepted in piecemeal rather the entire settlement with all stipulations must be held binding on both parties, cannot be accepted. The joining of the workman being a natural consequence of the Award made by the Industrial Tribunal, the workman cannot be criticized for challenging the offending part of the settlement. 13. In view of the discussions made above, the order dated 18th December 2020 passed in W.P (L) No.2627 of 2014 is set aside. 14. Consequently, clauses (2) and (3) in the settlement dated 17th August 2013 are quashed. 15. W.P (L) No.2627 of 2014 is allowed. (Shree Chandrashekhar, J.) Sudhir/NAFR (Anubha Rawat Choudhary, J.)