Bharat Coking Coal Limited And Ors vs Indrasani Devi

I.A. No.1355 of 2018

The instant interlocutory application has been filed under Rule 96 of the Jharkhand High Court Rules, 2001 to implead the legal heir of the original

writ petitioner as party respondent as the original writ petitioner died during pendency of the writ petition and no steps has been taken for substitution

of the writ petitioner by his legal heir during pendency of the writ petition.

It is evident from the order dated 24.10.2019 that notice on interlocutory application being I.A. No.1355 of 2018 was directed to be issued by

Division Bench of this Court and in pursuance thereto Mr. Shailesh, learned counsel has put his appearance to represent the respondent herein namely

Indrasani Devi who has raised no objection to the interlocutory application.

This Court having heard learned counsel for the parties and considering the nature of dispute involved in this case which pertains to disbursement of

back wages for the period from 01.07.2011 to 05.11.2011 in favour of the original petitioner namely Lerha Harijan. Since the sole respondent being the

widow of the deceased namely Lerha Harijan, who is now being represented by Mr. Shailesh, learned counsel has got right to sue and in view thereof

the prayer made in the interlocutory application is allowed.

Accordingly, I.A. No.1355 of 2018 stands allowed.

L.P.A. No.41 of 2018

The instant intra court appeal is against the order/judgment dated 20.04.2017 passed in W.P.(S) No.7052 of 2011 whereby and whereunder the writ

petition has been allowed with direction upon the respondent-Management to make payment of the back wages in favour of the writ petitioner within

six weeks.

The brief facts of the case, which is required to be enumerated herein for adjudication of the lis, reads hereunder as:

The writ petitioner/respondent was appointed on 01.01.1970 at the Auto Washery Kustore area as PL Operator. In Form-B his age was recorded as

35 years as on 16.12.1986. He was served with the notice of superannuation on 28.01.2011. He objected to the said notice by filing a representation

which was received in the office of Deputy Chief Personnel, Kustore area on 05.02.2011. The writ petitioner/respondent had taken stand that his age

was assessed by the Medical Board and was, accordingly, recorded in service record as 35 years as on 16.12.1986. The writ petitioner by notice

dated 30.08.2011 was directed to appear before the Medical Board, which also confirmed his age as 35 years on 16.12.1986. The appellants accepted

the age of the writ petitioner/respondent and also recorded it in Form-B and consequently order dated 07.11.2011 was issued, whereby he was

permitted to join services under the appellants-BCCL. The writ petitioner/respondent was illegally prevented from working on the post of Pay Loader

Operator but subsequently after realizing the aforesaid mistake was allowed to resume his duty with immediate effect in pursuance to office order

dated 07.11.2011. In pursuance to a memorandum of settlement arrived at in between the representatives of employer and their workman

representative on 05.11.2011 whereby and whereunder it has been agreed in between the parties that the back wages from the period 01.07.2011 to

05.11.2011 shall not be paid to the writ petitioner and he will not claim for the said period in future. The writ petitioner thereafter filed writ petition,

questioning the action of the respondent authorities in declining the back wages between 01.07.2011 to 05.11.2011 which was allowed by the learned

Single Judge by the order impugned, holding the memorandum of settlement not an agreement under Section 18 of the Industrial Disputes Act. The

aforesaid order is the subject matter of the present intra court appeal.

Mr. A. K. Das, learned counsel for the appellants-BCCL has submitted that the learned Single Judge has failed to appreciate the fact about

memorandum of settlement which had been entered other than in course of conciliation and as such it will be construed to be under the provision of

Section 18(1) of the Industrial Disputes Act, 1947 and hence the said memorandum of understanding is having its binding effect but the said fact has

not been appreciated by the learned Single Judge.

The further contention/ground raised in assailing the aforesaid order that when the writ petitioner had agreed for not claiming the back wages for the

aforesaid period if he will be provided with the reinstatement but subsequently the other part of back wages which the writ petitioner had agreed not to

claim it, has been questioned by invoking jurisdiction of this Court under Article 226 of the Constitution of India which should not have been allowed by

the learned Single Judge mainly on the ground that if the memorandum of settlement followed by office order issued on 07.11.2011 has been accepted

in entirety by the writ petitioner and subsequently thereto the other part cannot be allowed to be refused by the writ petitioner/respondent.

Mr. Shailesh, learned counsel for the writ petitioner/respondent has defended the order passed by the learned Single Judge mainly on the ground

that the order has been passed allowing the writ petition purely on the ground that the workman has got no bargaining power and since the

appellants/BCCL has accepted its mistake and due to that reason the order of reinstatement has been issued, and if there is any mistake on the part of

the appellants, the writ petitioner/respondent cannot be allowed to suffer by denying the back wages.

He has relied upon a unreported judgment of the Division Bench of this Court passed in L.P.A. No.397 of 2015 disposed of on 05.04.2016 (Hari B.P.

vs. Bharat Coking Coal Limited & Ors.).

This Court, having heard learned counsel for the parties and on appreciation of the rival submissions, deems it fit and proper to refer the admitted

facts that the writ petitioner was appointed but subsequently, he was superannuated from service on the ground of dispute on the date of birth. The

writ petitioner who was duly represented by the union and the representative of the Management, entered in a memorandum of settlement on

05.11.2011, in Form-H, which is provided under the provision of Rule 58 of the Industrial Disputes (Central) Rules, 1957, the contents of the aforesaid

memorandum reads as under:

“Sri Lerha Harijan, P.L. Operator, Auto Workshop, Kustore, Personnel No.00523191, Kustore Area was superannuated from the service

of company with effect from 30.06.2011 as per recorded in NEIS at Hq. Sri Lerha Harijan aggrieved with the decision of the Kustore Area

Management represented his case for correction of date of birth on the basis of entries in original FORM ‘B’ Register. As conveyed

by the G.M (P & IR), BCCL, Koyla Bhawan vide letter No.BCCL: IR:DOB:2011:2087-88 dated 27.7.2011 for referring Sri Lerha Harijan to

Apex Medical Board for assessment of his age. Accordingly Sri Harijan has been sent to Apex Medical Board vide letter No.2085 dated

16.08.2011 to for assessment of his age. Dy. C.M.O, (MB), vide his note sheet no.BCCL:KNH:11:1352 dated 22.09.2011 conveyed the Age

Assessment of Sri Lerha Harijan as (55.60 years). His age recorded in Form ‘B’ is accepted i.e. Age 35 years as on 16.12.1986. The

same has been approved by the D(P)BCCL, Koyla Bhawan.

Sri Lerha Harijan will not be paid any back wages for the idle period from 01.07.2011 to 05.11.2011 & he will not claim for the same

wages in future.

The period of idleness mentioned above will be treated as diesnon. However the continuity of service shall be taken for the purpose of

Gratuity only.

The amount payable against pension for the aforesaid period it is 01.07.2011 to 05.11.2011 shall be deposited by the workmen concerned

in due course of times.

This has the approval of Director (Personnel), BCCL.â€​

It is evident from the memorandum of settlement that the parties were agreed for reinstatement of the writ petitioner in services. The writ petitioner

accepted the terms of agreement with respect to non-payment of any back wages for the period from 01.07.2011 to 05.11.2011 as also agreement to

the effect that he will not claim the back wages in future.

In pursuance to the aforesaid agreement dated 05.11.2011 the appellants-Management issued an office order on 07.11.2011 reinstating the writ

petitioner in service by referring the condition pertaining to disbursement of the back wages which was accepted by the writ petitioner not to claim it.

The writ petitioner thereafter approached to this Court by filing writ petition being W.P.(S) No.7052 of 2011 which has been allowed by the learned

Single Judge directing the respondent-BCCL to make payment within six weeks.

The learned Single Judge while passing such positive direction, came to the finding about settlement signed between the parties holding it not a

settlement under Section 18 of the Industrial Disputes Act.

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.â€​

It is evident from Section 18 as referred 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.â€​

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.

This Court has proceeded to examine the memorandum of understanding in the light of Provision of Section 18 of the Industrial Disputes Act, 1947

read with Rule 58 of the Industrial Disputes (Central) Rules 1957. The memorandum of settlement is part of the paper book as under Annexure-4

which has been arrived at in between the representatives of the employer and workman on 05.11.2011. The said memorandum of settlement is under

Form-H. The signatories are for employer, General Manager, Kustore area and Chief Manager (P), Kustore area for workman/union of the workmen

himself namely Lehra Harijan and the Secretary of the concerned union, therefore, the memorandum of settlement as contained in Annexure-4 is

pursuant to the provision of Rule 58 of the Industrial Dispute (Central) Act, 1957.

This Court, therefore, is not in hesitation to hold that the memorandum of settlement dated 05.11.2011 under Form-H since is in pursuance to the

provision of Rule 58 of Industrial Dispute (Central) Act, 1957, therefore, it is a settlement under Section 18(1) of the Industrial Disputes Act, 1947.

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 05.11.2011 binds both the writ petitioner and the management

herein.

In view of such discussion as above, the finding recorded by the learned Single Judge that the so called settlement signed between the parties is

not a settlement under Section 18 of the Industrial Disputes Act, cannot be held to be a proper finding, therefore, said finding is not sustainable and in

view of the discussion made hereinabove, this Court is of the considered view that the memorandum of settlement dated 05.11.2011 is a settlement

arrived at in pursuance to Section 18 (1) of the Industrial Disputes Act, 1947.

Since the settlement arrived at under the provision of Section 18(1) of the Act, 1947 binds both the parties, therefore, the settlement dated 05.11.2011

which contains two fold settlement, first, about reinstatement of the writ petitioner and second, forgoing the right of back wages as also not to claim it

in future from 01.07.2011 to 05.11.2011 which according to our considered view, will bind both the parties i.e. the writ petitioner/respondent and also

the management/appellant in pursuance to the provision of Section 18(1) of the Industrial Disputes Act, 1947. Since both the terms of the

memorandum binds both the parties, therefore, it is not available to the writ petitioner/respondent 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 regarding the agreement arrived under Section 18 of the Industrial Disputes Act, 1947, fell for consideration before the Hon’ble Apex

Court in the case of Mohan Mahto. vs. Central Coalfield Ltd. & Ors. reported in (2007) 8 SCC 549 wherein it has been held by the Hon’ble Apex

Court that the settlement arrived in pursuant to Section 18 is having its binding effect having its statutory fervor.

Since the settlement in issue is about two aspect of the matter, first pertaining to reinstatement of petitioner and second pertains to back wages from

01.07.2011 to 05.11.2011, out of which the first one i.e. pertaining to reinstatement in service has been provided by the management in pursuance to

the office order dated 07.11.2011 treating the period from 01.07.2011 to 05.11.2011 as dies non, the continuity of service can be taken only for the

purpose of gratuity only. The writ petitioner being aggrieved with the order dated 07.11.2011 had approached this Court in writ jurisdiction in which

direction has been given for payment of back wages.

Now the question is, whether the writ petitioner/respondent can be allowed to question the office order dated 07.11.2011, once the settlement has

been arrived by him with the management on 05.11.2011. The answer of this Court would be negative which is for the two reasons. First, the

settlement dated 05.11.2011 since under Section 18(1) of the Industrial Disputes Act, 1947 which binds the parties, therefore, it is not permissible to

the writ petitioner/respondent once to enter into the settlement, take benefit of reinstatement and subsequently question it before the Court of law.

Since the settlement has got the statutory force, hence it has got its binding effect and further, since in terms of the memorandum of settlement dated

05.11.2011, the office order has been issued on 07.11.2011, as such, the office order dated 07.11.2011 cannot be read out in isolation leaving apart the

memorandum of settlement dated 05.11.2011.

Secondly, the writ petitioner cannot be allowed to act by accepting the one part of the order and declining to accept the other part which is contrary to

the position of law to the effect that a person cannot be allowed to approbate and reprobate, as has been held by the Hon’ble Apex Court in the

case of R.N. Gosain vs. Yashpal Dhir reported in (1992) 4 SCC 683 wherein at paragraph 10 which reads 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 advantageâ€. [See : 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 asideâ€​. (para 1508)â€​

The Hon’ble Apex Court in the case of State of Punjab and Ors. vs. Krishan Niwas reported in AIR 1997 SC 234 9wherein at paragraph 4 it has

been laid down that once the employee has accepted the correctness of the order and then acted upon it, the same cannot be questioned by the

concerned.

Learned counsel for the writ petitioner/respondent has tried to impress upon unreported judgment of the Division Bench of this Court passed in

L.P.A. No.397 of 2015 disposed of on 05.04.2016. According to the writ petitioner/respondent, in the similar circumstances, the Division Bench has

passed order directing the authorities to make payment of back wages.

This Court has examined the factual aspect of the aforesaid judgment of this Court passed in L.P.A. No.397 of 2015 and finds therefrom that there is

no consideration of any binding effect of the settlement before parties considering the provisions of Section 18(1) of the Industrial Disputes Act.

This Court has examined the fact about the binding precedence of the judgment by taking aid of the principle of per incuriam as has been

considered by the Hon’ble Apex Court in the case of State of Orissa and Anr. vs. Mamata Mohanty reported in (2011) 3 SCC 436 wherein at

paragraph 64, 65 and 66 it has been held, which reads hereunder as:

“64. “Incuria†literally means “carelessnessâ€. In practice per incuriam is taken to mean per ignoratium. The courts have

developed this principle in relaxation of the rule of stare decisis. Thus the “quotable in lawâ€, is avoided and ignored if it is rendered, in

ignoratium of a stature or other binding authority.

In Mamleshwar Prasad v. Kanhaiya Lal this Court held: (SCC p.235, para 7)

“7. …. Where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority

running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an

obtrusive omission.â€​

In State of Orissa vs. Damodar Nayak, question arose that in case the teacher at the time of appointment, did not possess the requisite

eligibility i.e. qualifications, whether he could claim any benefit under the grant-in-aid scheme. The respondent teacher therein had secured

53.9% marks and required eligibility provided for 54%. This Court held that undoubtedly 53.9% marks were very close to required marks

i.e. 54%, but the teacher so appointed did not possess the eligibility. The court took notice of the fact that he was appointed in 1978 but

acquired further qualification on 10.07.1987, and held:

“Admittedly, since the first respondent on the date of his appointment was not possessing the requisite qualification and acquired the

same only on 10.07.1987 he will be eligible to the benefit of the grant-in-aid w.e.f. 1.8.1987 and onwards.â€​

This Court after considering the doctrine of per incuriam, is of the view that since in the judgment rendered by the Division Bench in L.P.A.

No.397 of 2015, there is no consideration about the binding effect of Section 18(1) of the Industrial Disputes Act, 1947, as such the same would not

have any binding effect.

This Court on the basis of detailed discussion made hereinabove, is of the considered view that the judgment rendered by the learned Single Judge of

this Court is held to be not sustainable in the eye of law and, accordingly, the same is quashed and set aside.

In the result, the appeal is allowed and the writ petition stands dismissed.

Consequently, I.A. No.2543 of 2018 also stands disposed of.