THEIR WORKMEN THROUGH THE JOINT SECRETARY (WELFARE), FOOD CORPORATION OF INDIA EXECUTIVE STAFF UNION. versus EMPLOYER IN RELATION TO THE MANAGEMENT OF THE FOOD CORPORATION OF INDIA & ANR. on 3 July 2023

1. Leave granted.

2. Arising out of the very same judgment dated 17.12.2020 passedby a Division Bench of the Jharkand High Court in L.P.A. No. 80 ofF2019, these two appeals are amenable to a conjoined disposal.

3. By order dated 12.01.1996 issued under Section 10(1)(d) ofthe Industrial Disputes Act, 1947, the Ministry of Labour, Governmentof India, referred the industrial dispute raised by the Executive StaffUnion of Food Corporation of India, espousing the cause of 21 casualworkers, for adjudication. It was transferred to the Central GovernmentGIndustrial Tribunal No. 2, Dhanbad (hereinafter, ‘the Tribunal”), and takenon file as Reference No. 128 of 1996. The schedule of the reference setout the dispute for resolution as under:

‘Whether the action of the management of Food Corporation ofIndia, Patna, retrenching the services of S/Sh. Sashi Shankar and H

THEIR WORKMEN THROUGH THE JOINT SECRETARY (WELFARE), FCIEXECUTIVE STAFF UNION. v. EMPLOYER IN RELATION TO THEMANAGEMENT OF THE FCI

20 others (list enclosed) is justified and legal? If not, what reliefthe concerned workmen are entitled to?’

4. One witness each was examined before the Tribunal by bothsides. Exhibits M1 to M7 were marked by the management of FoodCorporation of India (FCI) while Exhibits W1 to W12 were marked onbehalf of the workmen. Upon considering the pleadings and evidence,the Tribunal found that the 21 workmen in question were engaged ascasual workers by the FCI at Patna and their retrenchment was void, asthey were neither given notice nor paid compensation. Further, havingfound that an earlier Award directing reinstatement and regularization inservice of casual workers was upheld by the High Court, the Tribunalopined that these 21 workmen should also be regularized in service asvacancies in Class IV posts were available. However, taking note of thefact that the workmen had not rendered services for a long time, theTribunal restricted their entitlement to back wages. In consequence, theTribunal passed Award dated 18.03.1997, holding that the action of themanagement of FCI in retrenching the services of these workmen wasnot justified and directed the management to reinstate them and regularizetheir services in Class-IV posts with effect from 10.05.1990, i.e., thedate of their retrenchment, and to pay them 75% of their back wages,within a time frame.

5. Aggrieved by the said Award, the management of FCI filedCWJC No. 953 of 1998 (R) before the Jharkhand High Court. Interimstay of the Award was granted in the writ petition on 05.08.1999, subjectto the FCI continuing to pay the full wages last drawn by the workmen.Thereupon, the management started paying each of them ¹ 507 per month,claiming that they were entitled only to minimum wages. Disputing this,the workmen instituted contempt proceedings in MJC Case No. 371 of2000. This contempt case was disposed of on 12.05.2000, holding that ifthe management failed to comply with the condition in the stay orderdated 05.08.1999 within two weeks, it would automatically stand vacatedand the workmen would be entitled to take steps for implementation ofthe Award. The management thereupon issued Orders dated 10/17.11.2000, 24/26.11.2000 and 27.11.2000, implementing the Award. Theworkmen were absorbed in regular service and paid 75% of their backwages from 10.05.1990 up to 18.03.1997 and full wages, applicable toClass IV, for the period thereafter. This compliance was made subjectto the final outcome of the writ petition.

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A6. However, a learned Judge of the Jharkhand High Courtdismissed CWJC No. 953 of 1998 (R), vide order dated 01.11.2018. Thelearned Judge affirmed the finding of the Tribunal that the workmenconcerned had worked in the FCI at Patna for 240 days in the preceding12 months and were then stopped from doing so without complying withthe mandatory provisions of Section 25F of the Industrial Disputes Act,B1947. Further, the learned Judge noted that the management did notcontrovert the claim of the workmen that similarly situated persons hadbeen regularized in service pursuant to the earlier order passed by theHigh Court and it did not cite any factor to distinguish the cases of theworkmen in question from those of the workmen so regularized. HavingCsaid so, the learned Judge observed that a casual employee who workedfor 240 days in the preceding calendar year would only be entitled toreinstatement in service, if his termination from service is without noticeor compensation in lieu thereof, as provided under Section 25F of theIndustrial Disputes Act, 1947, and he would not be entitled to seekregularization in service. However, as the management had chosen toDcomply with the impugned Award, without abiding by the conditionimposed in the interim order passed in the writ petition, and as theworkmen concerned had been availing the benefit of the impugned Awardfor more than 18 years, the learned Judge opined that it would causegreat hardship to them if the position was changed at that stage. TheElearned Judge, accordingly, dismissed the writ petition, upholding theAward in its entirety.

7. The matter was thereupon carried in appeal by the managementbefore a Division Bench of the Jharkhand High Court in LPA No. 80 of2019. By judgment dated 17.12.2020, the Division Bench modified theForder under appeal, by quashing the Award to the extent that it directedregularization of the services of the workmen. This modification wasmade on the ground that such relief could not be sustained when therewas no term of regularization in the reference of the industrial dispute.The Division Bench disposed of the appeal by setting aside the order ofthe learned Judge declining to interfere with the Award in so far as itGdirected regularization of services, but left untouched the direction topay 75% of the back wages.

8. Both sides are in appeal before this Court against the judgmentof the Division Bench. The Executive Staff Union of FCI filed an appealon behalf of the workmen concerned, aggrieved by the denial ofH

regularization of their services, while the management of FCI is in appealagainst the direction of reinstatement and payment of 75% of the backwages to the said workmen. While issuing notice on 08.03.2021 in SLP(C) 3656 of 2021 filed on behalf of the workmen, this Court directed thatoperation of the Division Bench judgment shall remain stayed. ContemptPetition (C) No. 366 of 2021 was instituted alleging disobedience to thisstay order and the same was disposed of with certain observations on26.07.2022.

9. Significantly, para 12 of the impugned Division Bench judgmentdated 17.12.2020 records that the learned counsel for the managementof FCI did not assail that part of the Award whereby directions weregiven for reinstatement and payment of back wages to the extent of75% and that the management was aggrieved by the Award pertainingto regularization. In fact, the grounds raised by the management in itsappeal before the Division Bench related mostly to the aspect ofregularization of the services of the workmen and there was only apassing reference to the issue of reinstatement. In any event, in the lightof the clear recording by the Division Bench that the management wasnot assailing the Award to the extent of directing reinstatement in serviceand payment of back wages, it is not open to the management to raisethe same before this Court. The appeal filed by the management of FCIraising these issues is, therefore, liable to be dismissed on that shortground.

10. As regards the appeal filed on behalf of the workmen, theonly issue raised therein is as to the regularization in service of thoseworkmen and the legality of the Award to the extent of granting suchrelief. At this stage, we may note that though the learned Judge himselfconcluded that there should not have been an order of regularization inservice by the Tribunal, he chose not to interfere therewith as theworkmen, in the meanwhile, had rendered regular service for about 18years and interference at that stage would be harsh upon them. On theother hand, the Division Bench held that once the Court comes to theconclusion that a wrong order was passed, it would be its sovereign dutyto rectify such mistake rather than perpetuate the same. The DivisionBench, however, did not consider the decisive features that had weighedwith the learned Judge while upholding the Award of the Tribunal, viz.,the fact that the management of FCI chose to fully implement the Awardduring the pendency of the writ petition and the fact that the workmen AB

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Aavailed the benefit thereof for 18 years. In this regard, the Office Orderdated 24/26.11.2000 issued by the management, in compliance with theAward, is of relevance. It reads as under:

‘THE FOOD CORPORATION OF INDIA

DISTRICT OFFICE: NORTH GANDHI MAIDAN (GAYA)BRef: No. Estt.10[C/L-Cum-Class-IV]/2000/192724/26.11.2000

OFFICE ORDER

In pursuance of Award dated 18.03.1997 in I.D. CaseNo.128/96 by CGIT Dhanbad, interim Order dated 5.8.1999Cpassed in CWJC No.953/98[R] and subsequent order dated12.05.2000 passed in MJC No. 371/2000 by the Hon’ble the HighCourt, Patna, Ranchi and in compliance of Sr. Regional Manager,FCI, Patna Office Order No.Estt.30[88]/94-Vol.II dated10.11.2000, the following Ex.Casual Workmen are hereby re-Dinstated w.e.f., 10.05.90, in the Cat.IV [Watchman].

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They are entitled to 75% of full back wages from 10.05.1990to 18.03.1997 and thereafter full wages of Cat.IV.

Further, the above order is subject to the out-come of theCWJC No.953/98 pending before the Hon’ble High Court, Patna,ERanchi Bench.

They are directed to report for duty within 10[Ten] daysfrom the date of receipt of this order.

FSrl. No. Name

1. Sri Sashi Shankar.

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21. Sri Ajoy Kumar.

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District Manager[I/c]

….’

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THEIR WORKMEN THROUGH THE JOINT SECRETARY (WELFARE), FCIEXECUTIVE STAFF UNION. v. EMPLOYER IN RELATION TO THEMANAGEMENT OF THE FCI [SANJAY KUMAR, J.]

11. Thereafter the management of FCI issued a corrigendum on27.11.2000, which is of great significance. The corrigendum reads thus:

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‘THE FOOD CORPORATION OF INDIA

REGIONAL OFFICE, PATNA-1

REF:NO.ESTT.30[88]/94-VOL.-II

DATED:27.11.2000B

CORRIGENDUM

In the office order issued under reference of even no. dated10/17.11.2000 regarding re-instatement of S/Sri Shashi Shankarand 20 others Casual workers of FSD, Chandauti, the word “re-instated” as mentioned in line 6 of the said Office Order may beread as “absorbed”

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Regional Manager

…’

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12. Notably, all that was required of the management of FCI, asper the interim order dated 05.08.1999 in CWJC No. 953 of 1998 (R),was that it should pay the full wages last drawn by the workmenconcerned, pending the disposal of the said writ petition, in due compliancewith Section 17B of the Industrial Disputes Act, 1947. Thereafter, thefinal order dated 12.05.2000 passed in MJC Case No. 371 of 2000 onlyput the management on notice that if it failed to comply with the conditionalstay order within two weeks, the said order would stand vacated and theworkmen would be at liberty to seek implementation of the Award. Facedwith this situation, the management of FCI could have paid the wageslast drawn to the workmen concerned after ascertaining the same. Thatwould have sufficed for continued subsistence of its interim protectionduring the pendency of the writ petition. However, the management ofFCI did not choose to adopt this course of action. In its wisdom, themanagement not only reinstated the workmen concerned, under the OfficeOrders dated 10/17.11.2000 and 24/26.11.2000, but went one step furtherand issued the Corrigendum dated 27.11.2000, ‘absorbing’ the saidworkmen in regular service. In effect, the management of FCI voluntarilychose to implement the Award in its totality, despite the conditional interimprotection afforded to it in the writ petition.

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A13. The feeble plea of the management of FCI that it wascompelled to comply with the Award, under the threat of contempt, cannotbe accepted as the contempt proceedings in MJC Case No. 371 of 2000were closed on 12.05.2000 itself, long prior to issuance of the orders of‘reinstatement’ and ‘absorption’ in November, 2000. Having committeditself to this course of action on its own, albeit by making it subject to theBresult of the pending writ petition, the question that arises is whether themanagement of FCI can be permitted a volte-face at this late stage.Pertinently, there is no evidence of the management at least seekingexpeditious disposal of the writ petition after complying with the Award,making it subject to the result thereof. In fact, the management merrilyCallowed the situation to continue for 18 long years, till the dismissal ofthe writ petition in November, 2018.

14. Given this factual scenario, we are of the opinion that thelearned Judge of the Jharkhand High Court was perfectly justified indismissing the writ petition on the grounds that he did, thereby upholdingDthe Award.

In Union of India and others vs. N. Murugesan and others[(2022) 2 SCC 25], this Court pointed out that the phrases ‘approbate’and ‘reprobate’ mean that no party can be allowed to accept and rejectthe same thing, as the principle behind the doctrine of election is inbuilt inEthe concept of approbate and reprobate, that is, a person cannot beallowed to have the benefit of an instrument while questioning the same.It was noted that an element of fair play is inbuilt in this principle and itis a species of estoppel dealing with the conduct of a party.

15. In the case on hand, the management of FCI filed a writFpetition challenging the Award passed by the Tribunal but having securedconditional interim relief therein, the management chose to implementthe impugned Award though it was under no compulsion to do so. Aspointed out hereinbefore, the management did not stop short at justreinstating the workmen in service but went further and absorbed themin regular service. Such absorption in service was not at all requiredGunder the interim order dated 05.08.1999 and was, therefore, squarelyattributable to the will and volition of the management of FCI itself. Ineffect, the management of FCI, be it for whatever reason, chose toacquiesce with and accept the Award in its entirety, though it made suchcompliance subject to the result of the writ petition. Its somnolence,Hthereafter, in taking timely measures for expeditious disposal of the writ THEIR WORKMEN THROUGH THE JOINT SECRETARY (WELFARE), FCIEXECUTIVE STAFF UNION. v. EMPLOYER IN RELATION TO THEMANAGEMENT OF THE FCI [SANJAY KUMAR, J.]

petition compounded the matter further, leading to the passing of 18 longyears, which conclusively weighed with the learned Judge and, in ourconsidered opinion, rightly so. A party to a proceeding cannot be permittedto challenge the same but thereafter abide by it out of its own free will;garner benefit from it; get the opposite party to effectively alter itsposition; and then press its challenge after the passage of a considerablelength of time.

16. Having allowed the workmen to put in regular service to itsown benefit for over two decades, the management can no longer claiman indefeasible right to continue with and canvass its challenge to theAward, merely because it made its compliance with the Award conditionallong ago. In the light of their absorption in regular service, these workmen,who may have otherwise opted for employment opportunities elsewhere,altered their position and remained with the FCI. Having placed them inthat position, it is no longer open to the management of FCI to seek toturn back the clock. Unfortunately, these crucial aspects were lost sightof by the Division Bench, while dealing with the management’s appeal.In that view of the matter, we are not inclined to alter the positionobtaining for over two decades, by accepting the legally weighty butessentially pedantic view taken by the Division Bench, ignoring the factualposition.

17. The appeal filed by the Executive Staff Union of FCI, onbehalf of the workmen, is accordingly allowed and the judgment dated17.12.2020 in LPA No. 80 of 2019, passed by the Division Bench of theJharkhand High Court, is set aside. In consequence, the order dated01.11.2018 passed by the learned Judge in CWJC No. 953 of 1998 (R)and the Award dated 18.03.1997 passed by the Central GovernmentIndustrial Tribunal No.2, Dhanbad, in Reference No.128 of 1996, arerestored, subject to the observations in the order dated 26.07.2022 passedby this Court in Contempt Petition (C) No. 366 of 2021 in SLP (C) No.3656 of 2021.

The appeal filed by the management of FCI is dismissed.Pending I.A.s, if any, in both appeals shall stand closed.

Parties shall bear their own costs.

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