SUPREME COURT OF INDIA

 

Ramesh Chandra Sankla

 

Vs.

 

Vikram Cement

 

C.A.No.4223 of 2008

 

(C.K. Thakker and D.K. Jain JJ.)

 

08.07.2008

 

JUDGMENT

 

C.K. Thakker, J.

 

1. Leave granted.

 

2. All these appeals arise out of common judgment and order passed by the Division Bench of the High Court of Madhya Pradesh (Indore Bench) on October 31, 2006 in Writ Appeal No.353 of 2006 and companion matters and   also against an order dated December 11, 2006 in Review Petition M.C.C. No. 1062 of 2006 and cognate matters. The orders passed by the Division Bench of the High Court have been challenged by both the parties i.e. employees/ workmen as also by the employer/Company.

 

FACTUAL BACKGROUND

 

3. To appreciate the controversy raised in the present appeals, few relevant facts may be noted.

 

4. Vikram Cement (`Company' for short) is engaged in the business of manufacturing cement of different grades and has its plant at Vikram Nagar, Khor, Madhya Pradesh. Appellants in one set of appeals are employees   engaged and working in the factory of the Company. It was the case of the Company that with a view to rationalize its manpower, it    introduced a Voluntary Retirement Scheme (`the Scheme' for short) on July 12, 2001 in the Cement Plant.

 

“The said scheme provided voluntary retirement of workmen who had either completed 40 years of age or put in at least 10 full years of service. They were to be    paid benefits as provided in the scheme. The scheme was displayed on the Notice Board and widely publicized through local press. It appears that out   of    1500       employees, about 460 employees opted for voluntary retirement which was accepted by the Company and they were granted all benefits towards `full and final settlement' in terms of the scheme. This was done during July-September, 2001. According to the Company, the workmen received those benefits, issued stamped receipts in token of acceptance of the amount under the scheme and ceased to remain `workmen' of the Company. The relationship between the `employer and employee' came to an end. According to the Company, however, during September-October, 2001, some of the employees who had opted for voluntary retirement, accepted benefits under the scheme and who were no more employees of the Company approached Labour Court, Mandsour by invoking Section 31 of the Madhya Pradesh Industrial Relations Act,1960 (hereinafter referred to as `the Act'),  inter alia, contending that they had not opted for voluntary retirement; they continued to remain workmen of the Company; they were pressurized, threatened and forced to accept some amount; though they were willing to work and continue as   employees of the Company, they were     not allowed to join duty. It was also their case that   they    were not paid legal and    proper benefits to which they were otherwise entitled even under the scheme. The so-called payment said to have been made to them was also not adequate and `full and final settlement' of the dues in accordance with law. It was, therefore, contended by them that they were entitled to reinstatement. As    they    were not    allowed     to continue as workmen by the Company, the impugned action was in the nature of an order of   `removal' or termination of   service and appropriate relief, therefore, was required to be granted to them.”

 

ORDER OF LABOUR COURT

 

5.  Cases were duly registered by    the Labour Court. Notices were issued. The Company appeared and raised preliminary objection as to the maintainability of the claim put forward by the workmen. It was contended by the Company that the workmen had accepted the scheme and received    the     amount     towards     `full and final settlement' and left the Company for ever. It was not a case of `removal' or `termination' of services and the applications were liable to be dismissed as they were no more in employment. A prayer was, therefore, made to uphold preliminary objections which were of legal nature and to dismiss cases only on    that ground. The Labour Court considered objections raised by the Company and reply of the workmen.  It,   however, opined that there was    `factual dispute' between the parties and it was not possible to dismiss cases as being not maintainable. It,    therefore, directed the Company by an order dated September 16, 2003 to file written statement so that the matter may be decided on merits. The Company challenged the said order by approaching the Industrial Court, Madhya Pradesh at Indore but the said application was also dismissed by the Industrial Tribunal vide an order dated February 11, 2004. The Company then filed reply contending that the applications filed by the `so    called workmen' were clearly an `afterthought', more so, when they had accepted the amounts/benefits under the scheme. Hence, the   claim    was wholly ill-founded. It  was averred by the Company that some of the workmen had even approached the Authority under the Payment of Gratuity Act for increased amount of gratuity, thus, clearly exhibiting and admitting to the severance of relationship of master and servant between the parties. It was contended that the workmen could not be allowed to resile from the stand taken by them earlier. They were estopped from challenging the factum of voluntary retirement.

 

6.  The Company moved the Labour Court on November 9, 2004 requesting the Court to frame three additional issues viz., 4(a), 4(b) and 4 (c) and hear them as preliminary issues. The said issues read as under:

 

“4(a) Whether the application    is   barred    by estoppel?

 

4(b) Whether  the   application    filed    by   the applicant can be heard under Sections 31(3), 61 and 62 of MPIR Act?

 

4(c) Whether the application is time barred?”

 

7.  The Labour Court accepted the request of the Company to frame issues 4(a), 4(b) and 4 (c). It, however, rejected the prayer to decide those    issues     as   `preliminary issues'   before deciding other issues on merits. According to the Labour Court, it was not advisable to decide the issues as preliminary issues without recording evidence. The application of     the Company was, therefore, dismissed.

 

ORDER OF INDUSTRIAL COURT

 

8.   Being aggrieved by the said order, the Company again approached the Industrial Court. It was contended that the preliminary issues raised by the   Company and approved by     the Labour Court were `purely legal issues' and the Labour Court  was wrong in treating    them  as mixed issues of law and fact which required  leading of evidence. The order passed by the Labour Court was, therefore, liable to be set aside.

 

9.  The Industrial Court, however, held that the Labour Court was right in rejecting the prayer of the Company to decide issues 4 (a), 4(b) and 4(c)    before deciding other issues. According to the Industrial Court, it was the case of the employees that their signatures had been taken on the applications for voluntary retirement by exercising pressure and under duress. It was also their case that they had been paid `lesser amount' than the amount     declared   under     the    scheme. Moreover, they had not accepted the amount voluntarily and with free consent but the same was paid to them under coercion. The Court also noted that the employees had given undertaking that they were ready to refund the amount received by them. The Industrial Court in     the circumstances observed that the dispute could not be resolved without     recording       evidence. Accordingly, the prayer made by the Company to decide   issues of jurisdiction and maintainability as preliminary issues   was rejected by the Industrial Court.

 

ORDER OF SINGLE JUDGE OF HIGH COURT

 

10.  Being aggrieved by the said order, the Company approached the High Court. The learned Single Judge of the High Court, by an order dated    February 6,     2006, dismissed the writ petition observing, inter alia, that the order passed by the Labour Court and confirmed by the Industrial Court was interlocutory in nature and did not decide any controversy. It merely deferred the decision on the question as to maintainability of claim along with     other issues. Such order could not be said to be without jurisdiction so as to interfere with it in exercise of supervisory jurisdiction under Article   227 of    the Constitution. No finding much less categorical finding one way or the other    had    been     recorded and     rights of   the parties    were    yet to be crystallized by   the Court.    It    was    also      observed      that      whether    a particular      issue  arising       from     the     pleading between   the     parties be tried as   preliminary issue or not should be examined by the Court keeping in view the provisions of Order XIV of the Code of Civil Procedure, 1908 (hereinafter referred to as `the Code'). On the facts and in the circumstances of the case, both the Courts were right in not deciding the issues as to jurisdiction and maintainability of claim as preliminary issues. No      interference was, therefore, called for. Accordingly, the writ petition was dismissed.

 

EARLIER SLP

 

11.  The Company challenged the said order by filing Special Leave Petition in this Court. Notice was issued and interim stay of further proceedings    was     granted by   this     Court.    The workmen   appeared. On   September 1, 2006,    the matter was placed before the Court. During the intervening period, however, an Act known as the   Madhya   Pradesh Uchcha Nyayalaya (Khand Nyayapeeth  Ko    Appeal) Adhiniyam, 2005 (`Adhiniyam' for short) came into force. This Court, therefore, held that it was not inclined to entertain Special Leave Petition    under Article 136    of    the   Constitution in view   of availability of intra      court     appeal (Writ Appeal) under the Adhiniyam and accordingly, Special Leave Petition was dismissed with liberty to the Company to approach the High Court.    Interim relief granted earlier was, however, ordered to be continued for a period of two months. But it was expressly stated by this Court that the question of maintainability of intra court appeal would be decided by the High Court in accordance with law.

 

ORDER OF DIVISION BENCH

 

12.  In view of the above order passed by this Court, intra court appeals were filed by the Company. The Division Bench of the High Court, as stated above, disposed of the appeals by an order dated 31st October, 2006. It was held by    the    Division Bench     that    the   writ petitions filed by   the Company were   under Article 227 of the Constitution and the learned Single Judge was exercising supervisory jurisdiction and intra court appeals were not maintainable and were liable to be dismissed. The Division Bench, however, held that since the    respondent-workmen had     received       the benefits under the scheme, pocketed the amount and approached the Labour Court claiming that they had not voluntarily accepted the scheme and   the     benefit      thereunder, it   would      be equitable to direct each of the employees who had filed a petition under Section 31(3) of the Act to return the benefit so received to the employer,     subject      to   the   undertaking       by   the Company     that    in    the   event   the    Labour    Court allows the claim and grants benefits to the workmen, the same would be restored to them by the Company with interest @ 6% per annum.

 

13.  The workmen are much aggrieved by that part of the order which directed them to refund the   amount. They   filed   review petitions but they were dismissed by the Division Bench on December 11, 2006. The workmen have, therefore, approached this Court by filing Special Leave Petitions in which notices were issued and the Company    appeared. The Company, on    the     other hand,     felt     aggrieved by     the     order of    the Division Bench holding intra court appeal not maintainable as also by the order passed by the Labour Court, confirmed by the Industrial Court and also by the High Court not deciding issues of jurisdiction and maintainability of petitions filed by the employees as preliminary issues before other issues are taken up for consideration. Their Special Leave Petitions were also ordered to be heard along    with Special Leave Petitions filed by the workmen and that is how all the matters are before us.

 

SUBMISSIONS OF COUNSEL

 

14.   We have heard learned counsel for the parties.

 

15.  The learned counsel for the    workmen vehemently contended that the order passed by the     Division     Bench of the High Court    was without jurisdiction so far as it directed the workmen to refund the amount received by them. The counsel submitted that once the Division Bench held that intra court appeals were not maintainable, it had no power to pass any order directing a party to do or not to do something. Such    direction    is   without     authority of   law, there is total lack of jurisdiction and the order is non est. No direction of refund of amount, therefore, could have been issued by the    Division     Bench. On   that    ground    alone, appeals    filed    by    the   workmen deserve    to   be allowed. Alternatively, it was submitted that once it was the case of the workmen that they had not accepted the scheme voluntarily, they were deemed to be continued in employment. If it is so, they would be entitled to receive wages. But they were not allowed to join duty and to work. No payment of wages had been made to them by the Company. The Company, for that reason also, cannot ask for repayment of amount paid to them. At the most, the said amount can be     adjusted    towards payment     of   wages.     The counsel also submitted that being aggrieved by the order passed by the Industrial Court, the Company filed a writ     petition which     was withdrawn. No express liberty was granted to the Company to file fresh petition on the same cause of    action. Thereafter fresh petitions were filed by the Company. Such petitions were not maintainable and ought not to have been entertained by    a    Single    Judge of the High Court. They were barred by the doctrine of constructive res judicata as also on the ground of abandonment of claim.

 

16.  On merits, it was submitted that the workmen were not paid the dues which ought to have been paid to them. A meager amount was offered    which was   accepted by   workmen under duress. It was less than the amount required to be paid under the scheme. The payment was made in remote past and at this stage, it would be very difficult for them to refund the amount. The High Court should     not     have     ordered repayment of     the amount   to   the    Company and ought   to have directed    the Labour Court    to proceed to decide the matter on   merits by expressly clarifying that    the payment would abide by the final outcome of the cases before the Labour Court. On all these grounds, it was submitted that the order passed by the Division Bench deserves to be set aside by restoring the order of the learned Single Judge.

 

17.  The learned counsel for the Company, on the other hand, supported that part of the order   of the Division Bench which directed refund of amount by the workmen to the Company. It was, however, submitted that the Division Bench was    not right     in     not    entertaining, dealing with and deciding intra court appeals on    the    ground that     such     appeals were not maintainable. The counsel submitted that while deciding the issue as to whether intra court appeal is or is not maintainable, nomenclature or reference to a particular Article of the Constitution in the writ    petition is not material. Similarly, observations of learned Single Judge that he is exercising the power under a particular provision of the Constitution are also not decisive. The Division Bench was     required to   apply its mind independently and to consider the    nature of controversy raised before the Single Judge. And if it finds that the petition was under Article 226 of the Constitution, the Division Bench   was     enjoined to   entertain intra-court appeals    and    to   decide       them   on     merits. The counsel alternatively submitted that even if the Division Bench felt that the writ petitions were under both the Articles, viz. Article 226 and Article 227 of the Constitution, as per settled law, no party can be deprived of right of intra court appeal merely by referring to the   other Article i.e. Article 227 of    the Constitution, over and above Article 226 of the Constitution under which such right is available to the party aggrieved by an order passed by a Single Judge. It was, therefore, submitted that the appeals of the Company should be allowed and the matter may be remitted to the Division Bench of the High Court so as to enable the Court to decide intra Court appeals on merits in accordance with law.

 

18.  The learned counsel also contended that an objection as to non-maintainability of writ petitions on the ground of constructive res judicata/abandonment of claim is not well- founded. First of all, no such contention was ever advanced either before the learned Single Judge or before the Division Bench of the High Court. It is also not raised in Special Leave Petitions. Such a plea has been taken at a belated stage as   an    `afterthought'.  Even otherwise, the contention is not well-founded and is totally misconceived. The Company filed a writ petition against more than 200 employees. The     Registry of    the     High      Court raised an objection as to maintainability of such petition. The petition was described as `defective' or under an `office objection' having `logistic problem'. The Company considered the point raised by the Office and withdrew the petition to file    separate and independent petitions. Individual petitions were then filed which were decided by the Court. The objection against maintainability of writ petitions has thus no force.

 

19. On merits, the counsel contended that the Labour Court, Industrial Court and   the learned Single Judge of the High Court were in error in not deciding the issue as  to maintainability of claims as preliminary issue. It was an admitted fact that the scheme was introduced by the Company, it was accepted by the workmen and payment was made to them. Once these facts are   admitted, there remained     no relationship of master and servant between the Company and the workmen. It is not even the case of the workmen that they have not been paid. In view of these facts, the Company was right in requesting the Labour Court to decide that the question whether claim petitions filed by the workmen were maintainable. The question was pure question of law. It did not require investigation of facts. The issue, therefore, ought to have been heard as preliminary issue. According to the counsel, the fact whether the claimants were workmen or not was a `jurisdictional' fact.    The    Labour Court    was having `limited jurisdiction' under the Act. It was, therefore, obligatory on the Labour Court to   decide whether the     jurisdictional or preliminary fact which could confer jurisdiction on the court was present. By not doing so, it had committed jurisdictional error which was required to be corrected by the High Court in certiorari-jurisdiction. But the High Court also   committed the    same    error. Hence, this Court may interfere with the said order by directing the Labour Court to decide issues 4 (a), 4(b) and 4(c) as preliminary issues. Even if intra court appeals are held not maintainable, the Company is before this Court under Article 136 of the Constitution and an appropriate order, therefore, may be made by the Court.

 

MAINTAINABILITY OF INTRA COURT APPEAL

 

20. So far as intra court    appeals      are concerned, the learned counsel for the Company strenuously urged that the Division Bench of the High Court was in error in holding that intra court appeals were not maintainable. He submitted that Adhiniyam conferred such right on the    party aggrieved by  a    decision of    a Single Judge of the High Court. It was also submitted that this Court at the time of hearing of Special Leave Petition considered the fact that intra court appeal was available to the aggrieved party under the Adhiniyam and disposed of Special Leave Petition by giving liberty to   the    appellant to approach the Division Bench of the High Court though notice was issued and interim relief was also granted earlier. It was also urged that the petition filed by    the    petitioner-appellant was   under Article 226 and Article 227 of the Constitution and, hence, a right of intra court appeal could not be taken away. According to the counsel, a statement by a Single Judge in the judgment that he was exercising power of superintendence under Article 227 of the Constitution is not final and conclusive. It was, therefore, prayed that the appeals be allowed by remitting all the matters to the Division Bench of the High Court to decide them on merits.

 

21. We are unable to persuade ourselves to uphold the contention of the learned counsel. The   Madhya   Pradesh   Uchcha   Nyayalaya   (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 (Act XIV of 2006) received the assent of the President on March 28, 2006. The Act was published in the Madhya Pradesh Gazette (Extraordinary) on April 05, 2006 and was brought into force "on the 1st day of July, 1981" [sub-section (2) of Section 1]. The Preamble of the Act states that it is an Act to provide for an appeal from a judgment or order passed by one Judge of the High Court in    exercise   of   original     jurisdiction    to   a Division Bench of the same High Court.

 

22.   Section 2   is   relevant   and   reads   as under:

 

“2. Appeal to the Division Bench of the High Court from a Judgment or order of one Judge of the High Court made in exercise of   original jurisdiction.--(1) An appeal shall lie from a Judgment or order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India, to a Division   Bench   comprising  of   two judges of the same High Court:  Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.

 

 (2) An appeal under sub-section (1) shall be filed within 45 days from the date of order passed by a single Judge:

 

Provided   that   any   appeal   may   be admitted after the prescribed period of   45 days, if the petitioner satisfies the Division Bench that he had sufficient  cause    for    not preferring the appeal within such period.

 

Explanation.--The   fact   that    the petitioner was misled by any order, practice or judgment of the High Court in   ascertaining  or  computing  the prescribed period may be sufficient cause within the meaning of this sub- section.

 

 (3) An appeal under sub-section (1) shall be filed, heard and decided in accordance with the procedure as may be prescribed by the High Court.”

 

23. Section 3 enables the High Court to make Rules under the Act for carrying out purposes of the Act. Section 4 repeals    the Madhya Pradesh Uchcha Nyayalaya (Letters Patent Appeals Samapthi) Adhiniyam, 1981.

 

24. Bare reading of    sub-section (1)    of Section 2 of the Act, quoted above, leaves no room for doubt that it allows a party aggrieved by a decision of a Single Judge of the High Court to appeal to a Division Bench of the High Court if a Single Judge has rendered a judgment or passed an order in exercise of   original jurisdiction under Article 226 of the Constitution. Proviso to   sub-section (1) expressly declares that no such appeal shall lie against an order passed in exercise    of supervisory jurisdiction under Article 227 of the Constitution.

 

25.  It is, therefore, clear that if the order is passed by a Single Judge of the High Court in exercise   of    original   jurisdiction under Article 226 of the Constitution, an intra court appeal would lie. If, on the other hand, a Single Judge exercises power of superintendence under Article 227 of   the Constitution, intra court appeal would not be competent.

 

26. Precisely, this was the position under different Letters Patents. For instance, Clause 15 of the Letters Patent as applicable to High Courts of Calcutta,      Madras and Bombay (Chartered High Courts), conferred such right of Letters Patent Appeal. It read as under:

 

“15. Appeal to the High Court from Judges of the Court.--And We do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order    made    in    the    exercise    of revisional jurisdiction and not being a sentence or order passed or made in the   exercise      of    the    power    of superintendence under the provisions of Section 107 of the Government of India Act or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any   Division     Court,     pursuant    to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act made on or after the first day of February One thousand nine hundred and twenty-nine in    the     exercise      of    appellate jurisdiction in respect of a decree or order    made    in    the    exercise    of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the   right    of    appeal    from    other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors in Our   or    Their    Privy    Council,    as hereinafter provided.”

 

27. The said clause (Clause 15) came up for consideration before this Court in several cases. We  may, however,  refer to only     one leading judgment on the point in Umaji Keshao Meshram & Ors. V. Radhikabai, Widow of Anandrao Banapurkar & Anr.1. In that case, proceedings had been initiated under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. A person aggrieved by an    order passed by Appellate Authority under the Act preferred revision before the Revenue Tribunal which was allowed. The order of the Tribunal was challenged in a writ petition under Article 227 of    the Constitution before the High Court of Bombay (Nagpur Bench). A Single Judge allowed the petition. The order passed by the Single Judge was then challenged by the aggrieved party by filing Letter Patent Appeal before the Division Bench under Clause 15 of the Letters Patent. The Division Bench of the High Court dismissed the appeal as not    maintainable. The said decision    was challenged by    the   appellant in this Court.

 

28. This Court observed that the High Court of Judicature at Bombay was established by Letters Patent dated June 26, 1862 issued by the  British Crown pursuant to the authority conferred on it by the Indian High Courts Act, 1861 (24 and 25 Vict., c. 104). The Letters Patent    also conferred right    to    institute an appeal to the Division Bench of the High Court against    the  `judgment'  rendered by a  Single Judge of the same court in certain cases.

 

29.  Considering the history, tradition and development of Letters Patent amended from time to time, the Government of India Acts, 1915 and 1935 and the provisions of the Constitution, this Court ruled that in case a Single Judge of the High Court has given a judgment or passed an order in exercise of    jurisdiction under Article 226 of the Constitution, remedy of Letters Patent     Appeal      is     available to     the aggrieved party. Madon, J. who delivered the judgment for the Court    proceeded to    observe that when the facts justify the party to invoke Article 226 or 227 of the Constitution and he chooses to institute a petition under both the Articles, he should not be deprived of right of appeal available under Clause 15 of the Letters Patent.

 

30.  His Lordship stated:

 

"Petitions are at times filed both under Articles 226 and 227 of the Constitution. The case of  Hari Vishnu Kamath v. Syed Ahmad Ishaque and Ors.2, before this Court was of such a type. Rule 18 provides that where such petitions are filed against orders of the tribunals or authorities specified in Rule 18 of Chapter XVII of the Appellate Side Rules or against decrees or orders of courts specified in that Rule, they shall be heard and finally disposed of by a Single Judge. The question is whether an appeal would lie from the decision of the Single Judge in such a case. In our opinion, where the facts justify a party   in   filing   an   application either under Article 226 or 227 of the Constitution, and the party chooses to file his application under   both    these   Articles,   in fairness and justice to such party and in order not to deprive him of the valuable right of appeal the Court ought to treat the application as being made under Article 226, and if in deciding the matter, in the final   order    the   Court   gives ancillary   directions   which   may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article 226".

 

(emphasis supplied)

 

31. (We may observe at this stage    that Chinnappa Reddy, J. expressed his inability to opine on the issue being `unfamiliar' with the history, tradition and the law of the city of Bombay).

 

32.  In our judgment, the learned counsel for the appellant is right in submitting that nomenclature of the proceeding or reference to a particular Article of the Constitution is not final   or   conclusive. He is also right    in submitting       that   an   observation     by    a   Single Judge as to how he had dealt with the matter is also not decisive. If it were so, a petition strictly falling under Article 226 simpliciter can be disposed of by a Single Judge observing that he is exercising power of superintendence under Article 227 of the Constitution. Can such statement by a Single Judge take away from the party aggrieved a right of appeal against the judgment if otherwise the   petition  is under Article 226 of the Constitution and subject to an intra court/Letters Patent Appeal? The reply unquestionably is in the negative [see Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors.3].

 

33. In our considered opinion, however, on the facts and   in the circumstances of    the present case, the petitions instituted by the Company and decided by a Single Judge of the High Court could not be said to be original proceeding under Article 226 of   the Constitution. We are clearly of the view that the learned Single Judge had decided the petitions in   exercise of power of superintendence under Article 227 of the Constitution.

 

34. We have already referred to the facts of the case. According to the Company, voluntary retirement was accepted    by    the employees. They     thereafter challenged the action on the ground that the acceptance was not voluntary but they were compelled to opt for the scheme and were paid some amount which was not in consonance with law and the action of   not allowing them to continue    in    the employment amounted to removal from service. They, therefore, approached Labour Court for an appropriate relief. The Labour Court entertained complaints and issued notice. The Company appeared and raised     preliminary objections. Issues were framed and a prayer was made by the Company to decide `issues of law' as preliminary issues which prayer was rejected by   the   Labour Court. The Company approached Industrial Court which also did not interfere with the order of the Labour Court. That order was again challenged by the Company by filing petitions in the High Court and the learned Single Judge dismissed    the    petitions.  In view of the aforesaid facts, we have no doubt that the learned Single Judge was exercising power of     superintendence over a Court/Tribunal subordinate to it under Article 227 of the Constitution. Obviously, a remedy of intra court appeal was not    available. We, therefore, hold that the    Division Bench was right in coming to the conclusion that intra court appeals filed by the Company were not maintainable. We see no infirmity in that part of the order. The contention of     the appellant Company is, therefore, rejected.

 

MAINTAINABILITY OF WRIT PETITIONS

 

35. It was urged on behalf of the workmen that the writ petitions filed by the Company for quashing and  setting  aside the orders passed by the Labour Court and confirmed by the Industrial Court were barred by constructive res judicata as also under Order XXIII, Rule 4 of the Code. The argument proceeds thus: The Company filed a Writ Petition No. 3471 of 2005 under Article 227 of the Constitution in the High Court for quashing and setting aside an order dated March 14, 2005 passed by the Labour Court and an order dated August 8, 2005 passed by the Industrial Court. On December 14, 2005, the Company withdrew the petition. It, however, filed fresh petition in respect of the same cause of action. No permission or leave of the Court was sought, nor it was granted by the Court when the writ petition was withdrawn to file fresh petition by the petitioner in respect of the same cause of action.   Fresh petitions were, therefore, not maintainable.

 

36. The learned counsel for the Company, however, submitted that the objection raised by the workmen is not well-founded. Firstly, it was urged that no such contention was raised by the    workmen   in    reply    to   the    writ   petitions filed by the Company, nor it was taken before the learned Single Judge at the time of hearing of petitions. Nor such argument was raised in this Court when earlier Special Leave Petition was filed by the Company in this Court. It was also not taken when the Company filed intra court appeals before the Division Bench of the High   Court   after   disposal   of   Special   Leave Petition by this Court. Even in Special Leave Petition filed in this Court by the workmen, no such point has been raised. A question whether a petition is barred by res judicata or under Rule 4 of Order XXIII of the Code is not a `pure' question of law. It is a question of fact or at any rate, a mixed question of law and fact. In absence of pleadings and necessary materials in support of such plea, petitions cannot be dismissed on the bald assertion by a party that they were not maintainable.

 

37.   Let us consider legal position on this issue.

 

38.  In the leading case of Daryao v. State of U.P.4 a Constitution Bench of this Court was called upon to decide whether withdrawal of a writ petition would operate as res judicata. The Court held that an order of withdrawal would not constitute res judicata inasmuch as there is no decision on the merits by the Court. The Court, however, proceeded to observe that when a petition is withdrawn by the party without obtaining liberty from the Court to file fresh     petition on the same subject matter, as a general rule, the petitioner is    precluded from   filing a fresh petition or an appeal against such an order because "he cannot be considered to be a party aggrieved by the order passed by the Court permitting withdrawal of the petition".

 

39. In Sarguja Transport Service v. State Transport Appellate Tribunal5 the Appellate Tribunal set aside permit granted in favour of the petitioner by the Regional Transport Authority to run a stage-carriage. The   petitioner filed a writ petition under Article 226 of the Constitution in the High Court of Madhya Pradesh against the order of the Tribunal but withdrew it. Then he filed a fresh   petition. The High Court dismissed it holding that after the withdrawal of the first petition, the second petition   was   not maintainable. The aggrieved    appellant approached this Court.

 

40.  Dismissing the appeal and considering the ambit and scope of Order XXIII of the Code and distinguishing it from the doctrine of res judicata under Section 11 of the Code, this Court observed:

 

"The law confers upon a man no rights or benefits which he does not desire. Whoever waives abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in Sub-rule (3) of Rule 1 of Order XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially  in   issue   has   been  directly   or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in   which   such   issue    has   been subsequently raised, and has been heard and finally decided by such Court.   The rule of  res   judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in Sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in Sub-rule (3) in order to prevent the abuse of the process of the Court".  (emphasis supplied)

 

41.  In   A.K. Bhattacharya   v.   Union   of India6 the petitioner filed a writ petition in the High Court of Gauhati under Article 226 of the Constitution seeking    Selection    Grade   in    Tripura   Civil Service and also promotion to the IAS cadre. A statement was made by the Advocate General that the case of the petitioner would be considered for Selection Grade in Tripura Civil Service. The petitioner, in view of the said statement, did not press the second relief. Subsequently, however, the petitioner prayed for that relief by    filing a petition in this   Court   under Article 32 of the Constitution.

 

42.   Dismissing the    petition,     this   Court commented:

 

"He   (petitioner) cannot, in   this petition under Article 32 of the Constitution, ask for the same relief which he had himself given up in the High Court".

 

 [See   also   State of   Gujarat   v. Bhaterdevi Ramnivas Sanwalram7,]

 

43.  In Murtujakhan v. Municipal Corpn. Of Ahmedabad8 a petition was filed   under Article 226    of    the   Constitution challenging the constitutional validity of the Bombay Town Planning Act, 1954. The respondents appeared, filed affidavits and contested the petition on merits. Ultimately, however, the petition was withdrawn by the petitioner since the point raised in the petition as to validity of the Act was covered by the decisions of this Court and as such nothing survived. Then again a fresh petition was filed by the petitioner challenging the validity of the Act.

 

44.  Dismissing the petition and applying the   general   principle   of   res   judicata,   the Court observed:

 

"The consequence of the withdrawal of the said writ petition in the eye of law was that it stood dismissed on merits albeit on a concession made by or on behalf of the petitioner to the effect   that   the   question   of the constitutional validity of the Act was no   longer   open   in   view   of the decisions of the Supreme Court. In other   words,   the    effect   of the dismissal by withdrawal was that the challenge of the petitioner to the actions of the respondents under the Act on the ground that the said Act itself was ultra vires stood concluded by an adverse decision of this Court based on his own concession. ...

 

45. The Court proceeded to state; [T]he petitioner  having    himself abandoned   without  reservation   the previous writ proceeding initiated in this very Court with eyes open and after due deliberation cannot now be allowed to pick up the thread after a lapse of five years and to start a fresh proceeding to re-agitate the very point which he expressly gave up in the previous proceeding. He had set the machinery of law in motion but solemnly brought it to an abrupt halt, indeed forsaken it in midstream, in proclaimed obeisance to the decisions of the Supreme Court. He cannot be permitted to resume it now after a number of years and be heard to say that despite his earlier proclamation, he still wishes to persist in raising the same point in this litigation. Courts moved upon a prerogative writ are not the forum to flog a dead horse or to resuscitate a ghost already laid to rest".  (emphasis supplied)

 

46.  In Bakhtawar Singh & Anr. v. Sada Kaur & Anr.9  this Court observed that if the plaintiff withdraws the suit and there is no evidence to show that the suit was bound to fail by reason of some `formal' defect or there were sufficient grounds for allowing the    plaintiff   to   institute   a   fresh   suit   in respect of the same subject matter and for the same relief, after   the   withdrawal of     the earlier suit, the action of filing fresh suit would be barred under Order XXIII of the Code.

 

47.  In K.S. Bhoopathy & Ors. V. Kokila & Ors.10 this Court stated that the Court has to discharge the duties mandated under the provisions of the Code in taking into consideration all relevant aspects of    the matter including the desirability of permitting the party to start a fresh round of litigation for the same cause of action.

 

48. We may also refer to a recent decision of this Court in Sarva Shramik Sangathan (KV), Mumbai v. State of Maharashtra & Ors.11. In that case, an application under Section 25-O of the Industrial Disputes Act, 1947 was filed by the employer for closure of undertaking. The application was,       however, withdrawn since attempts were made for settlement of the matter. The efforts were not successful and hence, the management filed fresh application.  It   was    contended by    the Union that since earlier application filed by the employer was withdrawn, the second application was hit by Order XXIII of the Code. The Union relied upon Sarguja Transport Service.

 

49.  Negativing the contention, holding the application maintainable and distinguishing Sarguja Transport Service, this Court held that the action of the Management of withdrawal of first petition was bona fide. It was not a case of Bench-hunting with a view to avoid an adverse order likely to be passed against it. Sarguja Transport Service had, therefore, no application. It was also observed that provisions of the Code of Civil Procedure do not strictly apply to industrial adjudication. The   second   application was, therefore,     held maintainable.

 

50. From the above case law, it is clear that it is open to the petitioner to withdraw a petition filed by him. Normally, a Court of Law would   not    prevent    him   from withdrawing his petition. But if such withdrawal is without the leave of the Court, it would mean that the petitioner is not interested in prosecuting or continuing the proceedings and he abandons his claim. In such cases, obviously, public policy requires that he should not start fresh round of litigation and the Court will not allow him to re-agitate the claim which he himself had given up earlier.

 

51.   In Sarguja  Transport  Service, extending the principles laid down in Daryao, Venkataramiah, J. (as His Lordship then was) concluded;

 

"[W]e are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from    indulging    in   bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court   under   Article   226   of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution   of   India   since  such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission".  (emphasis supplied)

 

52.  On the facts of the case, however, we are unable to uphold the argument on behalf of the workmen that the Company did not want to prosecute the petitions and had given up its claim against the order passed by the Labour Court and confirmed by the Industrial Court. The record reveals that the Company filed one writ petition against one employee which was registered as Writ Petition No. 3060 of 2005. It    also    filed    another petition against   the remaining employees (236) which was registered as Writ Petition No. 3471 of 2005. Since the other petition was against several employees, the    Registry of   the   High      Court    raised    an objection that it was under `defect'. It was, therefore, not placed for admission-hearing. In an    order,   dated October 3,   2005,     the   Court noted that the learned counsel for the Company prayed for time "to remove the defects pointed by the office". The prayer was granted. It also appears that according to the Registry, there were practical difficulties and    logistic problems since the petition was against more than 200 employees. The learned counsel for the Company, therefore, on December 14, 2005, did not `press’the petition and petition was accordingly dismissed`as not pressed'.   The said order was passed on December 14, 2005. Immediately thereafter,  in  January, 2006, separate petitions were filed by the Company against the workmen. It is thus clear that it was not a case of abandonment or giving up of claim by the Company. But, in view of office objection, practical difficulty and   logistic problem, the petitioner Company did not proceed with    an    `omnibus' and composite petition against several workmen and filed   separate petitions as suggested by the Registry of the High Court.

 

53.   There is an additional reason also for coming to this conclusion on the basis of which it can be said that the Company was prosecuting the matter and there was no intention to leave the matter. As is clear, Writ petition No. 3060 of 2005 which was filed against one employee was very much alive and was never withdrawn/'note pressed'. If really the Company wanted to give up the claim, it would have withdrawn that petition as well. Thus, from the circumstances in their entirety, we hold that the objection raised by the learned counsel for the workmen has no force and is rejected.

 

MAINTAINABILITY OF CLAIM PETITIONS

 

54.  The learned counsel for    the    Company contended that the courts below committed an error in not deciding the issueas to maintainability of claim petitions as preliminary issue and in rejecting the prayer of the Company. It was submitted that the workmen accepted the scheme, received the payment thereunder and separated from    the Company. The relationship of master and servant came to an end on     acceptance of    voluntary retirement and payment of dues thereunder. It was thereafter not open to them to invoke the provisions of    the Act     by    instituting claim petitions. The     relationship of    master and servant is sine qua non or condition precedent for the exercise of power under the Act by the Labour Court. It is thus a `jurisdictional fact' or `preliminary fact' which must exist before a Court assumes jurisdiction to entertain, deal with and decide the claim.

 

55.   A `jurisdictional fact' is one    on existence of which depends jurisdiction of a Court, Tribunal or an Authority.  If the jurisdictional fact does not exist, the Court or Tribunal cannot act. If an inferior Court or Tribunal wrongly assumes the existence of such fact, a writ of certiorari lies. The underlying principle is that by erroneously assuming existence of jurisdictional fact, a subordinate Court or an   inferior   Tribunal cannot confer upon itself jurisdiction   which   it   otherwise does not possess.

 

56. The counsel referred to a   recent decision of this Court in Arun Kumar v. Union of India12. Speaking for the Court, one of us (C.K. Thakker, J.) observed: "A `jurisdictional fact' is a fact which must exist before a Court, Tribunal or an Authority assumes jurisdiction over a particular matter. A jurisdictional   fact   is   one   on existence or non-existence of which depends jurisdiction of a court, a tribunal or an authority. It is the fact upon which an administrative agency's power to act depends. If the jurisdictional fact does not exist, the court, authority or officer cannot act. If a Court or authority wrongly assumes the existence of such fact, the order can be questioned by a writ of certiorari. The underlying principle is that by   erroneously assuming existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not posses".

 

57. It was further observed: "The existence of jurisdictional fact is thus sine qua non or condition precedent for the exercise of power by a court of limited jurisdiction".

 

58. Drawing   the   distinction    between `jurisdictional fact' and `adjudicatory fact', the Court stated: "[I]t is clear that existence of `jurisdictional fact' is sine qua non for the exercise of power. If the jurisdictional fact exists,   the authority can proceed with the case and take an appropriate decision in accordance   with    law.    Once   the authority has jurisdiction in the matter on existence of `jurisdictional fact', it can decide the `fact in issue' or `adjudicatory fact'. A wrong decision on `fact in issue' or on `adjudicatory fact' would not make the decision of the authority without jurisdiction or vulnerable provided essential or fundamental fact as to existence of jurisdiction is present".

 

59. The principle was reiterated in Carona Ltd. v. Parvathi Swaminathan & Ors.13.

 

60. The learned counsel for the workmen, on the other hand, supported the view taken by the Courts below. He submitted that the issues sought to be raised by the Company are mixed issues of law and fact. It is the allegation of the workmen that they had not voluntarily accepted the scheme but they were compelled to accept it under duress and coercion. Moreover, it is their case in the claim petitions that they were not paid full amount even under the scheme. They, therefore, did not cease to be workmen of the Company and the relationship of master and servant between the parties continued. If it is so, an action not allowing them to work would amount to termination of service or removal from employment. In   that eventuality, remedy under Section 31 of the Act is    available    and     accordingly they had    filed claim petitions. The question will have to be decided by the Labour Court on the evidence adduced by the parties and the issue as to maintainability cannot be decided in isolation and as preliminary issue as suggested by the Company.

 

61.  It was also submitted that this Court has held that statutory Tribunals must decide all    issues raised by the parties. This is particularly true to industrial disputes. Strong reliance was placed on D.P. Maheshwari v. Delhi Administration14. Dealing   with a similar argument, this Court said:

 

"There was a time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. We think it is better that   tribunals,     particularly    those entrusted with the task     of adjudicating     labour   disputes    Where delay    may    lead    to   misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts   in    the   exercise    of   their jurisdiction under Article 226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction of this Court under Article 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter    from    Court   to   Court    for adjudication     of   peripheral    issues, avoiding decision on issues more vital to them. Article 226 and Article 136 are not meant to be used to break the resistance of workmen in this fashion. Tribunals and Courts who are requested to decide preliminary questions must therefore ask them selves whether such threshold part-adjudication is really necessary and whether it will not lead to other woeful consequences. After all    tribunals like    Industrial Tribunals are constituted to decide expeditiously     special    kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of   preliminary    objections journeyings up and down. It is also worth   while   remembering    that   the nature   of   the   jurisdiction    under Article 226 is supervisory and not appellate while that under Article 136 is primarily supervisory but the Court may exercise all necessary appellate powers to do substantial justice. In the exercise of such jurisdiction neither the High Court nor this Court is required to be too astute to interfere with   the    exercise    of jurisdiction by special tribunals at interlocutory stages and on preliminary issues".  (emphasis supplied)

 

62. Reference was also made to S.K. Verma v. Mahesh Chandra & Anr.15. In that    case,    this    Court    commented    that   there appears     to be three preliminary objections which have become quite    the   fashion     to   be raised by all employees. Firstly, there is no industry. Secondly, there is no     industrial dispute. Thirdly, the workman is `no workman'.

 

63.  The attention of the Court was also invited to National Council for Cement & Building Materials v. State of Haryana16, wherein the Court deprecated the practice of the management to raise preliminary issues with a view to delay adjudication of industrial disputes.

 

64. In our considered opinion, in     the present case, it cannot be said that the Courts below have committed any error of jurisdiction in    not    deciding the issue as to the maintainability of claim-petitions as preliminary issue. It is well settled that generally, all issues arising in a suit or proceeding should be tried together and a judgment should be pronounced on those issues.

 

65.  Before more than hundred years, the Privy Council in Tarakant v. Puddomoney17 favoured this approach.

 

66.  Speaking for the Judicial Committee, Lord Turner stated:

 

"The, Courts below,   in  appealable cases, by forbearing from deciding on all     the    issues joined,     not infrequently oblige this Committee to recommend that a cause be remanded which    might  otherwise    be   finally decided on appeal. This is certainly a serious evil to the parties litigant, as it may involve the expense of a second appeal as well as that of another hearing below. It is much to be    desired,   therefore,     that   in appealable cases the Courts below should, as far as may be practicable, pronounce their opinions on all the important points". (emphasis supplied)

 

67.  The above principle has been consistently followed. This Court dealing with the provisions of Order XIV Rule 2 (prior to the amendment Act of 1976),   in   Major   S.S. Khanna v. Brigadiar F.J. Dillion18 stated;

 

"Under Order 14 Rule 2, Code of Civil Procedure, where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone,   but the    Code   confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the Court; not to do so, especially when the decision on issues even oflaw depend upon the decision of issues of fact, would result in a lop-sided trial of the suit".  (emphasis supplied)

 

68.  The Law Commission also considered the question and did not favour the tendency of deciding    some   issues   as   preliminary   issues. Dealing with Rule 2 of Order XIV (before the amendment), the Commission stated;

 

"This rule has led to one difficulty. Where a case can be disposed of on a preliminary point (issue) of law, often the courts do not inquire into the merits, with the result that when, on an appeal against the finding on the preliminary issue the decision of the Court on that issue is reversed, the case has to be remanded to the Court of first instance for trial on the other issues. This causes delay. It is considered that this delay should be eliminated, by providing that a court must give judgment on all issues, excepting, of course, where the Court finds that it has no jurisdiction or where the suit is barred by any law for the time being in force".         (emphasis supplied)

 

69.  Apart  from the fact that    the provisions of Code do not stricto sensu apply to `industrial adjudication', even under the Code, after the Amendment Act, 1976, the normal rule is to decide all the issues together in a civil suit. In the case on hand, the contention of the workmen is that the acceptance of the scheme   was   not     with   free   consent,     and   even otherwise they were not given all the benefits to which they were entitled under the scheme. Therefore, they continued to remain employees of the Company. The Labour Court felt that the controversy raised by the workmen can only be decided in the light of the evidence before it. The said decision has been confirmed by the Industrial Court as well as by   the   learned Single Judge. We find no illegality in this approach which   deserves           interference under Article 136 of the Constitution. We, therefore, see   no substance in the    contention of    the Company.

 

OPTION FOR RETIREMENT : WHETHER VOLUNTARY?

 

70.  The learned counsel  for    the      Company contended that the workmen had opted for and accepted voluntary retirement under the scheme floated by the employer and had received all the benefits thereunder. Thereafter it was not open to them to turn round and challenge the action of the Company. The workmen cannot `blow hot and cold', `fast and loose' or `approbate and reprobate'. The counsel, in this connection, referred to a number of decisions on the general principle of estoppel as also cases relating   to acceptance of   voluntary retirement by employees.

 

71.  The learned counsel for the workmen urged that the case of the employees was that they had not opted for the scheme and the `so called' voluntary retirement is no retirement in the eye of law. The phrase `voluntary retirement scheme' itself presupposes that acceptance of retirement should be voluntary and   must have been   opted by    employees with `free consent'. The counsel submitted that the workmen never accepted the scheme with    free consent but it was thrust upon them and under compulsion, duress and coercion, they were forced to submit to the illegal action of the Company. That was the reason for the workmen to approach Labour Court by filing claim petitions.

 

72. We would    have gone into   the     larger question had it been   decided by    the    Courts below in the light of the decisions of this Court. But as stated   above, in    the    present appeals, we are not called upon to consider the merits of the matter. The claim petitions are pending before the labour Court. The present proceedings are against interlocutory orders. Any    observation, one way or the other, may cause prejudice to one or the other party. We, therefore, refrain from entering into allegations and counter-allegations by granting liberty to both the parties to    raise     all contentions available in law. We also direct the Labour Court    to   consider the    matter    on merits and pass an     appropriate order      in consonance with law.

 

ORDER TO REFUND AMOUNT

 

73.  The learned counsel for the workmen contended that the order passed by the Division Bench of High Court directing refund of amount received by    the    workmen to the Company was illegal, unlawful and without jurisdiction. It was submitted that once the Court held that intra court appeals instituted by the Company were   not maintainable, it ought to have dismissed them without passing any order as to refund.

 

74.  The   Division   Bench,   in   paragraph   7, stated; "Learned counsel has further submitted that the respondent-employee is estopped from challenging the VRS and seeking reinstatement as the employee has already pocketed the money and received the other benefits    in accordance with the said Scheme. Since the employees who have approached the Labour    Court      claiming    that    by deceitful means or coercion, they were made to accept     the    voluntary retirement and received the benefit thereunder, it would be equitable to direct that any employee who wants to maintain a petition under Section 31  (3) of the M.P.I.R. Act against the said VRS and to seek reinstatement, should return the benefits received to the employer, subject to the condition and undertaking as offered by the learned counsel fort he appellant, that in the event, the Labour Court refund   of    the    amount   and    other benefits to the employee concerned, the same would be restored to the employee with interest at the rate of six per cent per annum. It is made clear that the Labour Court shall decline to proceed     with     the application of the employee who doesnot refund the amount to the employer as hereinabove directed. The learned counsel for the respondents has no objection    to    the    benefits    being refunded to the employer during the pendency of the case before the Labour Court subject to the result of the case".

 

75.  The learned counsel in this connection referred to a leading decision of this Court in Kiran Singh v. Chaman Paswan19. Dealing with the provisions of Code of Civil Procedure, 1908   and   jurisdiction   of    Civil Courts, this Court stated;

 

"It is fundamental principle well established that a decree passed by a court   without  jurisdiction    is   a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction ...strikes on the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties." (emphasis supplied)

 

76.  Reference was also made to a recent decision of this Court in Harshad Chiman Lal Modi v. DLF Universal Ltd. & Anr.20. Referring to Kiran Singh as also several other decisions, it was held by this Court that if the Court has no jurisdiction toentertain a particular claim or matter, neither acquiescence nor express consent of the parties can confer jurisdiction upon it. An    order passed by a Court having no jurisdiction is nullity and non est. It was submitted that even otherwise the learned Single    Judge     was right in not issuing an order for refund of amount.

 

77. The learned counsel for the Company submitted that the direction of refund of amount is proper, fair and in consonance with principles of justice, equity and good conscience. If the case of the workmen is that they had never accepted retirement voluntarily; that it was imposed upon them under duress and they     were     forced to receive payment under Voluntary Retirement Scheme     under    pressure, compulsion or coercion and were constrained to approach Labour Court asserting that they continued to be workmen of the Company, it was expected of them even in absence of any order or direction to refund the amount received by them. They could not have resiled from the position by retaining the benefits which they never wanted but were thrust upon them against their will. The workmen could not have best of both the worlds, i.e. to contend that they are still workmen of the Company but at the same time,   they would not    part   with     the   amount received by them for leaving the Company for ever. The High Court, balancing equity between the   parties,    issued direction to return     the amount received under the scheme which calls for no interference by this Court in exercise of equitable jurisdiction under Article 136 of the Constitution.

 

78. It was also submitted that even if it is held that Letter Patent Appeals were not maintainable, the Company has approached this Court and considering that circumstance also, the direction may be upheld if the Court is of the   view that Claim Petitions filed by   the workmen should   be   considered on   merits     and should be decided by Labour Court in accordance with law. The counsel also submitted that when the claims were lodged by the workmen, they themselves had stated that they were ready and willing to refund the amount which they had received under the `purported' Voluntary Retirement Scheme. It was, therefore, submitted that the order as to refund of amount needs no interference.

 

79. Since we have held that the decision of    the    Labour Court, confirmed by the Industrial Court as well as by the High Court in not deciding issues Nos. 4(a), 4(b) and 4(c) as    preliminary     issues   cannot    be   said   to   be illegal or contrary to law and those issues will be decided by the Labour Court along with other issues on merits, the Labour Court will consider     whether    the    Company    was   right      in contending that the workmen accepted retirement voluntarily      and     there    was     cessation       of relationship of master and servant between them and the Claim Petitions were not maintainable. In the circumstances, it would not be proper for this Court to express any opinion at this stage on merits. A short question which remains to be considered is whether on the facts and in the circumstances of the case, the direction of the High Court can be said to be unjust, unfair or unreasonable?

 

80.   Now, it is well settled that jurisdiction of High Courts under Articles 226 and 227 is discretionary and equitable. Before more than half a century, the High Court of Allahabad   in   the leading   case   of   Jodhey   v. State21 observed;

 

"There are no limits, fetters or restrictions placed on this power of superintendence in this clause and the purpose of this Article seems to be to make the High Court the custodian of all justice within the territorial limits of its jurisdiction and to arm it with a weapon that could be wielded for the purpose of seeing that justice is meted out fairly and properly by the bodies mentioned therein."  (emphasis supplied)

 

81. The power of   superintendence under Article 227 of the Constitution conferred on every High Court over all courts and tribunals throughout the territories in relation to which it    exercises    jurisdiction    is   very    wide    and discretionary in nature. It can be exercised ex debito justitiae, i.e. to meet the ends of justice.     It is equitable in nature. While exercising supervisory   jurisdiction, a High Court not only acts as a court of law but also as a court of equity. It is, therefore, power and also the duty of the Court to ensure that power of superintendence must `advance the ends of justice and uproot injustice'.

 

82.  In Roshan Deen vs. Preeti Lal22 dealing with an order passed by the High Court setting aside an order of Commissioner for Workmen's Compensation, this Court stated;

 

"Time and again   this Court   has reminded that the power conferred on the High Court under Article 226 and 227 of the Constitution is to advance justice and not to thwart it. The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the byproduct of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law".  (emphasis supplied)

 

 83. In Gadde Venkateswara Rao   v. Government of Andhra Pradesh & Ors.23 a Primary Health Centre was formerly inaugurated at village `A' subject to certain conditions. Since those conditions were not satisfied, it was resolved by Panchayat Samithi to shift it to village `B'. The Government set aside the said resolution without giving notice to the Samithi. Subsequently,    however,     the Government       reviewed    the    said   order    without giving opportunity      of being   heard    to   the affected persons.  The action was challenged in the High Court. The High Court held that the order passed by the Government on review was bad. It, however, did not interfere with the order on    merits.      In    this   Court    it   was contended that an order passed on review by the Government was illegal since no opportunity of hearing was afforded and the High Court was wrong    in    not   setting   aside   the     said    order. This Court, however, did not interfere with the order passed by the High Court observing that "if the High Court had quashed the order passed by the Government, it would have restored an illegal order and would have given the Health Centre    to    a    village   contrary   to     the    valid resolutions passed by the Panchayat Samithi". In the opinion of this Court, therefore, the High Court was right in refusing to exercise discretionary power in the circumstances of the case.

 

84. In Commissioner of Income Tax, Madras v. Vinod Kumar Didwania24 certain prohibitory orders under the Income Tax  Act, 1961 were passed against the assessee in connection with removal of goods. By filing a petition under Article 226 of the Constitution, the assessee challenged the legality of those orders. He obtained ex parte interim injunction, removed the goods and thereafter withdrew the petition. The Revenue challenged the said action by approaching this Court. The Court held that the assessee had abused the process of law and he could not be allowed to retain undue benefit received by him.

 

85. In Chief Settlement Commissioners v. Ram Singh25 this Court held that an order of allotment of land in excess of lawful entitlement does not allow such allottee to insist that excess land should not be taken away from him.

 

86.  In Mohammad Swalleh v. Third Additonal District Judge, Meerut26 an erroneous order was passed by the Prescribed Authority    refusing   to   grant eviction   of   the tenant under the relevant law. It was set aside by the District Court in appeal though no such appeal was maintainable. When the matter reached this Court, the Court refused to interfere with the order since justice had been done "though technically the appellant had a point that the order of the District Judge was illegal and improper".

 

87.  The learned counsel for     the   Company placed    heavy reliance on Shangrilla Food Products Ltd. v. Life Insurance Corporation of India27. In a suit by A, an order was passed by the Estate Officer against B holding that it was in unauthorized occupation and was liable to be evicted under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. He also ordered B to pay damages of Rs. 12 lakhs. An appeal was filed by B against the order and the Appellate Authority confirmed the   order    of    eviction. The   High Court, however, felt that an opportunity ought to have been afforded to B to prove that it was a    lawful   sub-tenant. The matter,    therefore, required remand. At that stage, A prayed that in that case, the matter be remanded as a whole to be decided afresh considering the question of    payment    of   rent/damages also. The   High Court    upheld the plea, negativing the contention of B that A had never challenged the order setting aside the direction as to payment of damages.    B approached this Court.

 

88.  Dismissing the appeal, confirming the order   of    the   High   Court    and   adverting   to substantial justice, this Court stated;

 

"It is well-settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court,    being     extraordinary,  is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking   the jurisdiction of the High Court, the court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief. What precisely has been done by the learned Single Judge is clear from the above emphasized words which be re-read with advantage. The question of claim to damages and their ascertainment would only arise in the event of the Life Insurance Corporation, respondent, succeeding to prove that the appellant Company was an unlawful sub-tenant and therefore in unauthorised occupation of public premises. If the finding were to go in favour of the appellant Company and it is proved to be a lawful sub-tenant and hence not an unauthorized occupant, the direction to adjudge the claim for damages would be rendered sterile and otiose. It is only in the event of the appellant Company being held to be an unlawful sub-tenant andhence an unauthorised occupant that the   claim for damages    would   be determinable. We see therefore no fault in the High Court adopting such course   in    order   to    balance   the equities    between    the contestants especially when it otherwise had power of superintendence under Article 227 of the Constitution in addition. We cannot be oblivious to the fact that when the occupation of the premises in question was a factor in continuation the liability to pay for the use and occupation thereof, be it in the form of rent or damages, was also a continuing    factor.    The    cause   of justice, as viewed by the High Court, did clearly warrant that both these questions be viewed inter-dependently. For those who seek equity must bow to equity".  (emphasis supplied)

 

89. From the above cases,   it   clearly transpires that powers under Articles 226 and 227   are   discretionary   and    equitable    and   are required to be exercised in the larger interest of justice. While granting relief in favour of the applicant, the Court must take into account balancing interests and equities. It can mould relief considering the facts of the case. It can pass an appropriate order which justice may demand and equities may project. As observed by this Court in Shiv Shankar Dal Mills v. State of Haryana28 Courts of equity should go much further both to give and refuse    relief in furtherance of public interest. Granting or withholding of relief may properly be dependent upon considerations of justice, equity and good conscience.

 

90.  In our considered opinion, taking into account facts and circumstances in    their entirety, the order passed and direction issued by the Division Bench of the High Court was in furtherance of justice. Not only it has not resulted in miscarriage of justice, in fact it has   attempted to put   status    quo    ante   by balancing interests and leaving the matter to be    decided by a Competent Authority in accordance with law.

 

91. Even otherwise, according to the workmen, they were compelled to accept    the amount and they received such amount under coercion and duress. In our considered opinion, they cannot retain the benefit if they want to prosecute Claim Petitions instituted by them with the Labour Court. Hence, the order passed by the Division Bench of the High Court as to refund of     amount cannot be    termed     unjust, inequitable or improper. Hence, even if it is held that a `technical' contention raised by the workmen has some force, this Court which again exercises discretionary and equitable jurisdiction under Article 136 of the Constitution, will not interfere with a direction which is in consonance with     the doctrine of equity. It has been rightly said that a    person "who seeks equity    must do equity". Here the workmen claim benefits as workmen of the Company, but they do not want to part with the    benefit they have received towards retirement and severance of relationship of master and servant. It simply cannot be permitted. In our judgment, therefore, the final direction issued by the Division Bench     needs no      interference, particularly when the Company has   also approached this Court under Article 136 of the Constitution.

 

92. For the foregoing reasons, in our opinion, the order passed by the Division Bench of the High Court deserves to be confirmed and is    hereby confirmed.      The    payment which     is required    to    be    made    as   per     the    said     order should be made by the applicants intending to prosecute their claims before the Labour Court, Mandsour. In view of the fact, however, that the said period is by now over, ends of justice would be served if we extend the time so as to enable the applicants to refund the amount. We, therefore, extend the time up to December 31, 2008 to make such payment.  We may, however, clarify    that     Claim Petitions will not be proceeded with till such payment is made.   If the payment is   not made within     the    period stipulated above, the Claim Petitions of those applicants will automatically stand dismissed. The Labour Court will take up the claim petitions after December 31, 2008.

 

93.    Before parting with the matter, we may clarify that we have not expressed any opinion on the merits of the case one way or the other. And as and when the matter will come up before the Labour Court, Mandsour, (if the conditions referred to above have been complied with and refund of payment is made), the Labour Court will consider the Claim Petitions on their own merits without being influenced by any observations made in this judgment. All contentions of all parties including the contention as to maintainability or otherwise of Claim Petitions are kept open. Civil Appeals stand disposed of accordingly. On the facts and in    the    circumstances of the case,   however, there shall be no order  as to   costs all throughout.

 

11986 Supp SCC 401                        2(1955) 1 SCR 1104:AIR 1955 SC 23          3(1998) 5 SCC 749 

4(1962) 1 SCR 574                           5(1987) 1 SCC 5                                           61991 Supp (2) SCC 109

7(2002) 7 SCC 500                          8(1975) 16 Guj LR 806                                 9(1996) 11 SCC 167

10(2000) 5 SCC 458                        11(2008) 1 SCC 494                                      12(2007) 1 SCC 732 

13(2007) 1 SCC 559                       14(1983) 4 SCC 293                                      15(1983) 4 SCC 214

16(1996) 3 SCC 306                                   17(1866) 10 MIA 476                                    18(1964) 4 SCR 409

19(1955) 1 SCR 117                      20(2005) 7 SCC 791                                      21AIR 1952 All 788

22(2002) 1 SCC 100                     23(1966) 2 SCR 172                                       24AIR 1987 SC 1260

25(1987) 1 SCC 612                     26(1988) 1 SCC 40                                         27(1996) 5 SCC 54

28(1980) 1 SCR 1170