Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 4152 OF 2023
(@ SPECIAL LEAVE PETITION (C) NO. 3656 OF 2021)
Their Workmen
through the Joint Secretary (Welfare),
Food Corporation of India Executive Staff Union. ............Appellant
Versus
Employer in relation to the Management
of the Food Corporation of India & Anr. ...........Respondents
WITH
CIVIL APPEAL No. 4153 OF 2023
(@ SPECIAL LEAVE PETITION (C) NO. 13620 OF 2021)
JUDGMENT
SANJAY KUMAR, J.
1. Leave granted.
2. Arising out of the very same judgment dated 17.12.2020 passed by a
Division Bench of the Jharkand High Court in L.P.A. No. 80 of 2019, these two
appeals are amenable to a conjoined disposal.
3. By order dated 12.01.1996 issued under Section 10(1)(d) of the
Industrial Disputes Act, 1947, the Ministry of Labour, Government of India, referred
the industrial dispute raised by the Executive Staff Union of Food Corporation of
India, espousing the cause of 21 casual workers, for adjudication. It was transferred
to the Central Government Industrial Tribunal No. 2, Dhanbad (hereinafter, ‘the
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Tribunal”), and taken on file as Reference No. 128 of 1996. The schedule of the
reference set out the dispute for resolution as under:
‘Whether the action of the management of Food Corporation of India, Patna,
retrenching the services of S/Sh. Sashi Shankar and 20 others (list enclosed) is
justified and legal? If not, what relief the concerned workmen are entitled to?’
4. One witness each was examined before the Tribunal by both sides.
Exhibits M1 to M7 were marked by the management of Food Corporation of India
(FCI) while Exhibits W1 to W12 were marked on behalf of the workmen. Upon
considering the pleadings and evidence, the Tribunal found that the 21 workmen in
question were engaged as casual workers by the FCI at Patna and their
retrenchment was void, as they were neither given notice nor paid compensation.
Further, having found that an earlier Award directing reinstatement and
regularization in service of casual workers was upheld by the High Court, the
Tribunal opined that these 21 workmen should also be regularized in service as
vacancies in Class IV posts were available. However, taking note of the fact that the
workmen had not rendered services for a long time, the Tribunal restricted their
entitlement to back wages. In consequence, the Tribunal passed Award dated
18.03.1997, holding that the action of the management of FCI in retrenching the
services of these workmen was not justified and directed the management to
reinstate them and regularize their services in Class-IV posts with effect from
10.05.1990, i.e., the date of their retrenchment, and to pay them 75% of their back
wages, within a time frame.
5. Aggrieved by the said Award, the management of FCI filed CWJC No.
953 of 1998 (R) before the Jharkhand High Court. Interim stay of the Award was
granted in the writ petition on 05.08.1999, subject to the FCI continuing to pay the
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full wages last drawn by the workmen. Thereupon, the management started paying
each of them 507 per month, claiming that they were entitled only to minimum ₹
wages. Disputing this, the workmen instituted contempt proceedings in MJC Case
No. 371 of 2000. This contempt case was disposed of on 12.05.2000, holding that if
the management failed to comply with the condition in the stay order dated
05.08.1999 within two weeks, it would automatically stand vacated and the
workmen would be entitled to take steps for implementation of the Award. The
management thereupon issued Orders dated 10/17.11.2000, 24/26.11.2000 and
27.11.2000, implementing the Award. The workmen were absorbed in regular
service and paid 75% of their back wages from 10.05.1990 up to 18.03.1997 and
full wages, applicable to Class IV, for the period thereafter. This compliance was
made subject to the final outcome of the writ petition.
6. However, a learned Judge of the Jharkhand High Court dismissed
CWJC No. 953 of 1998 (R), vide order dated 01.11.2018. The learned Judge
affirmed the finding of the Tribunal that the workmen concerned had worked in the
FCI at Patna for 240 days in the preceding 12 months and were then stopped from
doing so without complying with the mandatory provisions of Section 25F of the
Industrial Disputes Act, 1947. Further, the learned Judge noted that the
management did not controvert the claim of the workmen that similarly situated
persons had been regularized in service pursuant to the earlier order passed by the
High Court and it did not cite any factor to distinguish the cases of the workmen in
question from those of the workmen so regularized. Having said so, the learned
Judge observed that a casual employee who worked for 240 days in the preceding
calendar year would only be entitled to reinstatement in service, if his termination
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from service is without notice or compensation in lieu thereof, as provided under
Section 25F of the Industrial Disputes Act, 1947, and he would not be entitled to
seek regularization in service. However, as the management had chosen to comply
with the impugned Award, without abiding by the condition imposed in the interim
order passed in the writ petition, and as the workmen concerned had been availing
the benefit of the impugned Award for more than 18 years, the learned Judge
opined that it would cause great hardship to them if the position was changed at
that stage. The learned Judge, accordingly, dismissed the writ petition, upholding
the Award in its entirety.
7. The matter was thereupon carried in appeal by the management before
a Division Bench of the Jharkhand High Court in LPA No. 80 of 2019. By judgment
dated 17.12.2020, the Division Bench modified the order under appeal, by quashing
the Award to the extent that it directed regularization of the services of the
workmen. This modification was made on the ground that such relief could not be
sustained when there was no term of regularization in the reference of the industrial
dispute. The Division Bench disposed of the appeal by setting aside the order of the
learned Judge declining to interfere with the Award in so far as it directed
regularization of services, but left untouched the direction to pay 75% of the back
wages.
8. Both sides are in appeal before this Court against the judgment of the
Division Bench. The Executive Staff Union of FCI filed an appeal on behalf of the
workmen concerned, aggrieved by the denial of regularization of their services,
while the management of FCI is in appeal against the direction of reinstatement and
payment of 75% of the back wages to the said workmen. While issuing notice on
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08.03.2021 in SLP (C) 3656 of 2021 filed on behalf of the workmen, this Court
directed that operation of the Division Bench judgment shall remain stayed.
Contempt Petition (C) No. 366 of 2021 was instituted alleging disobedience to this
stay order and the same was disposed of with certain observations on 26.07.2022.
9. Significantly, para 12 of the impugned Division Bench judgment dated
17.12.2020 records that the learned counsel for the management of FCI did not
assail that part of the Award whereby directions were given for reinstatement and
payment of back wages to the extent of 75% and that the management was
aggrieved by the Award pertaining to regularization. In fact, the grounds raised by
the management in its appeal before the Division Bench related mostly to the
aspect of regularization of the services of the workmen and there was only a
passing reference to the issue of reinstatement. In any event, in the light of the
clear recording by the Division Bench that the management was not assailing the
Award to the extent of directing reinstatement in service and payment of back
wages, it is not open to the management to raise the same before this Court. The
appeal filed by the management of FCI raising these issues is, therefore, liable to
be dismissed on that short ground.
10. As regards the appeal filed on behalf of the workmen, the only issue
raised therein is as to the regularization in service of those workmen and the
legality of the Award to the extent of granting such relief. At this stage, we may note
that though the learned Judge himself concluded that there should not have been
an order of regularization in service by the Tribunal, he chose not to interfere
therewith as the workmen, in the meanwhile, had rendered regular service for about
18 years and interference at that stage would be harsh upon them. On the other
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hand, the Division Bench held that once the Court comes to the conclusion that a
wrong order was passed, it would be its sovereign duty to rectify such mistake
rather than perpetuate the same. The Division Bench, however, did not consider the
decisive features that had weighed with the learned Judge while upholding the
Award of the Tribunal, viz., the fact that the management of FCI chose to fully
implement the Award during the pendency of the writ petition and the fact that the
workmen availed the benefit thereof for 18 years. In this regard, the Office Order
dated 24/26.11.2000 issued by the management, in compliance with the Award, is
of relevance. It reads as under:
‘THE FOOD CORPORATION OF INDIA
DISTRICT OFFICE: NORTH GANDHI MAIDAN (GAYA)
Ref: No. Estt.10[C/L-Cum-Class-IV]/2000/1927 24/26.11.2000
OFFICE ORDER
In pursuance of Award dated 18.03.1997 in I.D. Case No.128/96 by CGIT
Dhanbad, interim Order dated 5.8.1999 passed in CWJC No.953/98[R] and subsequent
order dated 12.05.2000 passed in MJC No. 371/2000 by the Hon’ble the High Court,
Patna, Ranchi and in compliance of Sr. Regional Manager, FCI, Patna Office Order
No.Estt.30[88]/94-Vol.II dated 10.11.2000, the following Ex.Casual Workmen are hereby
re-instated w.e.f., 10.05.90, in the Cat.IV [Watchman].
They are entitled to 75% of full back wages from 10.05.1990 to 18.03.1997 and
thereafter full wages of Cat.IV.
Further, the above order is subject to the out-come of the CWJC No.953/98
pending before the Hon’ble High Court, Patna, Ranchi Bench.
They are directed to report for duty within 10[Ten] days from the date of receipt of
this order.
Srl. No. Name
1. Sri Sashi Shankar.
…..
21. Sri Ajoy Kumar.
Sd/-
District Manager[I/c]
….’
11. Thereafter the management of FCI issued a corrigendum on
27.11.2000, which is of great significance. The corrigendum reads thus:
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‘THE FOOD CORPORATION OF INDIA
REGIONAL OFFICE, PATNA-1
REF:NO.ESTT.30[88]/94-VOL.-II DATED:27.11.2000
CORRIGENDUM
In the office order issued under reference of even no. dated 10/17.11.2000
regarding re-instatement of S/Sri Shashi Shankar and 20 others Casual workers of FSD,
Chandauti, the word “re-instated” as mentioned in line 6 of the said Office Order may be
read as “absorbed”
Sd/-
Regional Manager
…’
12. Notably, all that was required of the management of FCI, as per the
interim order dated 05.08.1999 in CWJC No. 953 of 1998 (R), was that it should
pay the full wages last drawn by the workmen concerned, pending the disposal of
the said writ petition, in due compliance with Section 17B of the Industrial Disputes
Act, 1947. Thereafter, the final order dated 12.05.2000 passed in MJC Case No.
371 of 2000 only put the management on notice that if it failed to comply with the
conditional stay order within two weeks, the said order would stand vacated and the
workmen would be at liberty to seek implementation of the Award. Faced with this
situation, the management of FCI could have paid the wages last drawn to the
workmen concerned after ascertaining the same. That would have sufficed for
continued subsistence of its interim protection during the pendency of the writ
petition. However, the management of FCI did not choose to adopt this course of
action. In its wisdom, the management not only reinstated the workmen concerned,
under the Office Orders dated 10/17.11.2000 and 24/26.11.2000, but went one step
further and issued the Corrigendum dated 27.11.2000, ‘absorbing’ the said
workmen in regular service. In effect, the management of FCI voluntarily chose to
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implement the Award in its totality, despite the conditional interim protection
afforded to it in the writ petition.
13. The feeble plea of the management of FCI that it was compelled to
comply with the Award, under the threat of contempt, cannot be accepted as the
contempt proceedings in MJC Case No. 371 of 2000 were closed on 12.05.2000
itself, long prior to issuance of the orders of ‘reinstatement’ and ‘absorption’ in
November, 2000. Having committed itself to this course of action on its own, albeit
by making it subject to the result of the pending writ petition, the question that
arises is whether the management of FCI can be permitted a volte-face at this late
stage. Pertinently, there is no evidence of the management at least seeking
expeditious disposal of the writ petition after complying with the Award, making it
subject to the result thereof. In fact, the management merrily allowed the situation
to continue for 18 long years, till the dismissal of the writ petition in November,
2018.
14. Given this factual scenario, we are of the opinion that the learned
Judge of the Jharkhand High Court was perfectly justified in dismissing the writ
petition on the grounds that he did, thereby upholding the Award.
In Union of India and others vs. N. Murugesan and others [(2022) 2
SCC 25] , this Court pointed out that the phrases ‘approbate’ and ‘reprobate’ mean
that no party can be allowed to accept and reject the same thing, as the principle
behind the doctrine of election is inbuilt in the concept of approbate and reprobate,
that is, a person cannot be allowed to have the benefit of an instrument while
questioning the same. It was noted that an element of fair play is inbuilt in this
principle and it is a species of estoppel dealing with the conduct of a party.
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15. In the case on hand, the management of FCI filed a writ petition
challenging the Award passed by the Tribunal but having secured conditional
interim relief therein, the management chose to implement the impugned Award
though it was under no compulsion to do so. As pointed out hereinbefore, the
management did not stop short at just reinstating the workmen in service but went
further and absorbed them in regular service. Such absorption in service was not at
all required under the interim order dated 05.08.1999 and was, therefore, squarely
attributable to the will and volition of the management of FCI itself. In effect, the
management of FCI, be it for whatever reason, chose to acquiesce with and accept
the Award in its entirety, though it made such compliance subject to the result of the
writ petition. Its somnolence, thereafter, in taking timely measures for expeditious
disposal of the writ petition compounded the matter further, leading to the passing
of 18 long years, which conclusively weighed with the learned Judge and, in our
considered opinion, rightly so. A party to a proceeding cannot be permitted to
challenge the same but thereafter abide by it out of its own free will; garner benefit
from it; get the opposite party to effectively alter its position; and then press its
challenge after the passage of a considerable length of time.
16. Having allowed the workmen to put in regular service to its own benefit
for over two decades, the management can no longer claim an indefeasible right to
continue with and canvass its challenge to the Award, merely because it made its
compliance with the Award conditional long ago. In the light of their absorption in
regular service, these workmen, who may have otherwise opted for employment
opportunities elsewhere, altered their position and remained with the FCI. Having
placed them in that position, it is no longer open to the management of FCI to seek
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to turn back the clock. Unfortunately, these crucial aspects were lost sight of by the
Division Bench, while dealing with the management’s appeal. In that view of the
matter, we are not inclined to alter the position obtaining for over two decades, by
accepting the legally weighty but essentially pedantic view taken by the Division
Bench, ignoring the factual position.
17. The appeal filed by the Executive Staff Union of FCI, on behalf of the
workmen, is accordingly allowed and the judgment dated 17.12.2020 in LPA No. 80
of 2019, passed by the Division Bench of the Jharkhand High Court, is set aside. In
consequence, the order dated 01.11.2018 passed by the learned Judge in CWJC
No. 953 of 1998 (R) and the Award dated 18.03.1997 passed by the Central
Government Industrial Tribunal No.2, Dhanbad, in Reference No.128 of 1996, are
restored, subject to the observations in the order dated 26.07.2022 passed by this
Court in Contempt Petition (C) No. 366 of 2021 in SLP (C) No. 3656 of 2021.
The appeal filed by the management of FCI is dismissed.
Pending I.A.s, if any, in both appeals shall stand closed.
Parties shall bear their own costs.
………………………………………...J
[KRISHNA MURARI]
………………………………………...J
[SANJAY KUMAR]
New Delhi;
July 3, 2023.
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