- (1.) 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.
(2.) 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. 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. 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. 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.
(3.) 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. 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. 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. 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.;