Supreme Court: In two appeals filed by Executive Staff Union of Food Corporation of India (‘FCI’) aggrieved by the denial of regularization of their services; and by the management of FCI against the direction of reinstatement and payment of 75% of the back wages to workmen passed by the division bench of Jharkhand High Court, the division bench of Krishna Murari and Sanjay Kumar*, JJ. while setting aside the impugned judgment, said that having allowed the workmen to put in regular service to its own benefit for over two decades, the management can no longer claim an indefeasible right to continue with and canvass its challenge to the Award, merely because it made its compliance with the Award conditions long ago.
By order dated 12-01-1996 issued under Section 10(1)(d) of the Industrial Disputes Act, 1947, the Ministry of Labour, Government of India, referred the industrial dispute raised by the Executive Staff Union of FCI, espousing the cause of 21 casual workers, for adjudication. It was transferred to the Central Government Industrial Tribunal (‘Tribunal’). The Tribunal found that the 21 workmen in question were engaged as casual workers by the FCI at Patna and their retrenchment was void, as they were neither given notice nor paid compensation. Thus, the Tribunal held that the action of the management of FCI in retrenching the services of these workmen was not justified and directed the management to reinstate them and regularize their services from the date of their retrenchment, and to pay them 75% of their back wages, within a time frame.
Aggrieved by this, the management of FCI filed a writ petition before the Jharkhand High Court, wherein the Court while dismissing the petition and upheld the award of the Tribunal. Further, an interim order was passed, wherein the Court directed the management to pay the full wages last drawn by the workmen concerned, pending the disposal of the said writ petition, in due compliance with Section 17-B of the Industrial Disputes Act, 1947.
Afterwards, a contempt petition was filed by workers seeking compliance with orders, wherein the Court held that if the management does not abide by the conditions, then the stay on the award will be vacated.
Thereafter, the management filed an appeal, wherein the division bench of the Court modified the order under appeal, by quashing the Award to the extent that it directed regularization of the services of the workmen but left untouched the direction to pay 75% of the back wages.
Both sides are in appeal against the judgment of the Division Bench. The Executive Staff Union of FCI filed an appeal on behalf of the workmen, aggrieved by the denial of regularization of their services, while the management of FCI is in appeal against the direction of reinstatement and payment of 75% of the back wages to the said workmen.
The Court said that the division bench, did not consider the fact that the management of FCI chose to fully implement the Award during the pendency of the writ petition and the fact that the workmen availed the benefit thereof for 18 years.
The Court further said that the feeble plea of the management of FCI that it was compelled to comply with the Award, under the threat of contempt, cannot be accepted as the contempt proceedings were closed prior to issuance of the orders of ‘reinstatement’ and ‘absorption’ in November 2000.
The Court opined that the Single Judge Bench of Jharkhand High Court was justified in dismissing the writ petition, thereby upholding the Award.
The Court relied on Union of India v. N. Murugesan, (2022) 2 SCC 25, wherein the Court pointed out that the phrases ‘approbate’ and ‘reprobate’ mean that no party can be allowed to accept and reject the same thing. As, the principle behind the doctrine of election is inbuilt in the concept of approbate and reprobate, that is, a person cannot be allowed to have the benefit of an instrument while questioning the same.
The Court said that the management of FCI filed a writ petition challenging the Award passed by the Tribunal, but having secured conditional interim relief therein, the management chose to implement the impugned Award though it was under no compulsion to do so. The management did not stop at just reinstating the workmen in service but went further and absorbed them in regular service. Such absorption in service was not at all required under the interim order dated 05-08-1999 and was, therefore, squarely attributable to the will and volition of the management of FCI itself. Thus, the management of FCI chose to acquiesce with and accept the Award in its entirety, though it made such compliance subject to the result of the writ petition. A party to a proceeding cannot be permitted to challenge the same, and also abide by it at its own free will; garner benefit from it; get the opposite party to effectively alter its position; and then press its challenge after the passage of a considerable length of time.
The Court said that having allowed the workmen to put in regular service to its own benefit for over two decades, the management can no longer claim an indefeasible right to continue with and canvass its challenge to the Award, merely because it made its compliance with the Award conditional long ago. In consideration of their absorption in regular service, these workmen, who may have otherwise opted for employment opportunities elsewhere, altered their position and remained with the FCI. Having placed them in that position, it is no longer open to the management of FCI to seek to turn back the clock.
The Bench said that these crucial aspects were not considered by the Division Bench, while dealing with the management’s appeal. Thus, the Court was not inclined to alter the position obtained for over two decades.
Therefore, the Bench has set aside the impugned judgment. Further, it restored the order passed by the Single Judge Bench and the Award dated passed by the Central Government Industrial Tribunal.
[Their Workmen through the Joint Secretary (Welfare), Food Corporation of India Executive Staff Union v. Employer in relation to the Management of the Food Corporation of India, 2023 SCC OnLine SC 757, decided on 03-07-2023]