judgement:
Civil Appeal No. 1865 of 1982 Appeal by Special leave from the Order dated the 24th December, 1981 of the Labour Court, Delhi in ID.
No. 120 of 1977.
M.K. Ramamurthi, V.P. Choudhary Jitendra Sharma and P. Gaur, for the Appellant.
G.B. Pai, O.C. Mathur, D.N. Mishra, section Sukumaran and Ms. Meera Mathur, for the Respondent.
311 The Judgment of the Court was delivered by DESAI, J.
If solemn agreements proposed by the employer and readily acceeded to by the workmen and holding the forte for over a quarter of a century are crudely disowned compelling the workmen to knock at the door of the apex court for removing the road block in the access to justice set up by preliminary objection of technical nature, industrial peace and harmony chanted by the employer would be not merely an empty mantra but a futile exercise of chasing a mirage and unfortunately that is the situation here.
Hindustan Lever Ltd., a multi national company, respondent herein addressed a communication dated January 24, 1957 recording the out come of mutual deliberations between the Hindustan Lever Ltd. (employer ' for short) and the Hindustan Lever Mazdoor Sabha ( 'union ' for short) recognised representative union of the workmen employed by the employer.
The relevant portion may be extracted: "exhibit W 2 24th January, 1957 The President, Hindustan Lever Mazdoor Sabha, Bombay.
Dear Sir, Referring to our recent meeting about field force, we would like to place on record that: (1) We recognise you as the representative union for all sections of field force all over India.
(2) You have agreed to treat all matters relating to wages/salaries and terms and conditions of service on an all India basis and not on a regional basis as far as field force is concerned.
(3) For all matters of an all India nature relating to field force, you will communicate with the Personnel Director.
We hope that all such matters will be settled by direct negotiation but if at any stage you decide to refer the matter to conciliation, you will do so only at Bombay.
We, on our part, give you the assurance that if the matter 312 is referred to a Tribunal in Bombay then its award will be applied by you to field force all over India.
For this reason, you will agree that it will be only proper for the Tribunal to examine the matter in an all India perspective.
4) Although we do not anticipate any problems of a purely local nature, in case such problems do arise your members will first try to arrive at a solution by approaching their own managers and if this fails, your local Committee should refer the matter to the local Commercial Manager or Office Manager.
5) For future disputes we shall not contest issues about field force on the basis of their not being 'workmen ' but shall contest issues only on the merits in the same way as we do for other employees.
Please confirm that you agree with the points mentioned above.
Yours faithfully, Sd/ B.K. Bindani The union responded to this communication as per its letter dated April 24, 1957 which reads as under: "exhibit W.3 The Personnel Manager, Hindustan Lever Limited, Scindia House, Ballard Estate, Bombay 1.
24th April, 1957 Dear Sir, With reference to your letter Personnel KSB/BN/49 dated 24.1.1957 and in the light of further discussions we had with you on the subject, we would like to state as under: 1.
We thank you for recognising us as the Representative Union for all sections of the Field Force employees all over India.
313 2.
We agree that certain major issues such as a salary wages, bonus, provident fund, Gratuity, leave etc.
will be treated as far as possible on an all India basis.
We agree that for all matters of an all India nature, we will communicate with the Personnel Director.
As for the other points raised by you, we agree to follow the procedure, as far as legally permissible.
Local matters, if not settled by negotiations, will have to be dealt with otherwise.
For instance, the Sabha may go in for conciliation or may be free to resort to any other legitimate and/or peaceful method.
We are indeed glad to note that you will not contest issues about field force on the basis of their not being 'Workmen ' but you will contest issues only on their merits in the same way as you do for other employees.
We wish to take the opportunity also to confirm your agreement with us that in regard to demands relating to Field Force contained in Ref.
N.48 of 1956, now pending adjudication at Delhi, you will not contest the issue on the basis of their not being 'Workmen ' but you will contest the issue on the merits of the demands as you do for other employees.
Yours faithfully, Sd/ P. Pullat President 1st May, 1957" A further communication ensued from the employer dated May 1, 1957.
It is not necessary to reproduce the whole of it save and except that the employer wanted to be assured that the union by its communication dated April 24, 1957 unequivocally intended to confirm the items of agreement relating to various items of industrial disputes between the parties as set out in its communication dated January 24, 1957 and further sought clarification of the two points raised by the union.
The substantial question is whether there emerged a concluded agreement between the parties and binding on the parties till it is terminated according to law? The question of the existence of a concluded agreement and its validity arises in the following circumstances.
314 Shri A.K. Sircar and Shri R.L. Gupta were protected workmen within the meaning of the expression in the ( 'Act ' for short) and were admittedly the office bearers of the union and consequently leaders of the workmen.
The employer served a charge sheet on Shri A.K. Sircar on April 10, 1974 and on the next day, a charge sheet was served on Shri R.L. Gupta.
There followed a disciplinary enquiry and ultimately the services of Shri A.K. Sircar and Shri R.L. Gupta were terminated by the employer.
The union raised an industrial dispute contending that the termination of services of the aforementioned two workmen was illegal and invalid and the enquiry was equally illegal and improper and that the action of the employer was an act of reprisal and victimization because of the trade union activities of the aforementioned two office bearers of the union: The appropriate Government referred the industrial dispute to the Industrial Tribunal on July 16, 1977.
The employer in its written statement inter alia contended that Shri A.K. Sircar and Shri R.L. Gupta were not workmen within the meaning of the expression in the and therefore the appropriate Government had no jurisdiction to refer the dispute to the Industrial Tribunal and consequently the Industrial Tribunal had no jurisdiction to hear and deal with the reference.
It was further contended that in a reference between the employer and the union in another dispute to the Industrial Tribunal in Maharashtra State, a contention was raised by the employer that salesman of the employer is not a workman within the meaning of the expression in the and this objection was upheld by the Industrial Tribunal and a petition for special leave against the decision of the Industrial Tribunal to the Supreme Court was rejected on October 1, 1975.
It was further contended that the services of the aforementioned two workmen were terminated not by way of punishment but under the contract of service and the disciplinary enquiry which was commenced earlier was subsequently dropped.
The union in its counter affidavit inter alia contended that the employer was estopped from challenging the status of the two concerned workmen as not being workmen within the meaning of the expression in the on account of a subsisting valid concluded agreement between the parties inter alia providing that the employer will not contest the issue about status of field force (which expression includes salesman) on the basis of their not being workmen but shall contest the issue only on the merits in the same way as they do for other employees.
It was also contended that in view of Shri Roop 315 Chandra award the issue about existence of the agreement and the status of salesman is res judicata and cannot be reopened till the agreement remains in force and operative.
The rival pleadings led to the Industrial Tribunal framing the following issues: "1) Whether the management is estopped from challenging the status of these two concerned workmen as "workman ' within the meaning of the . 2) Whether the award dated 17 11 66 of the Additional Industrial Tribunal, Delhi would operate as res judicata between the parties ? 3) If issue No. 1 is answered in the negative whether the concerned (sic) are 'workman ' within the meaning of the I.D. ? 4) What is the effect of the order dated 6 1 75 passed by the I.T. Maharashtra in reference 203 of 1973 and order dated 1.10.1975 of the Supreme Court in Petition for special leave 1602 of 1975 ? 5) Whether the reference is incompetent and bad in law for reasons mentioned in prel.
objections (III), (IV), (V) and (VII) and (VIII) ? Issue Nos.
1,2, 4 and 5 were directed to be heard as preliminary issues.
On Issue No. 1, the Industrial Tribunal held that the three communications exhibit
W 2 dated January 24, dated April 24, 1957 and exhibit W 4 dated May 1, 1957 did not spell out a complete concluded agreement between the parties on the points set out therein but it was an inchoate agreement in the stage of negotiations and therefore the employer was not bound to stand by its offer made in the communication dated January 24, 1957 denying to itself the right to contest the status of the field force including salesman as not being workman within the meaning of the expression in the .
On Issue No. 2, it was held that the award of Shri Roop Chandra in I.D. No. 46 of 1966 in which it was held that there was a concluded agreement between the parties as disclosed in Exs.
W 2, W 3 & W 4 and therefore the industrial dispute therein raised could not be adjudicated upon at Delhi, it being an All India dispute and ought to have been raised at Bombay, did not operate as res judivata 316 because the issue in the award was not directly and substantially in issue in the present reference.
Parties did not advance any argument on Issues Nos. 4 and 5 and therefore with reference to Issue No. 4, the Tribunal observed that the same may not be disposed of without further hearing the parties and no finding was recorded on Issue No. 5.
The Tribunal accordingly rejected the preliminary objections raised on behalf of the union and set down the reference for further hearing.
Hence this appeal by special leave by the union.
At the outset, we must record our unhappiness on the attitude adopted by the employer in contending as late as 1981 that the three communications Exs.
W 2, W 3 and W 4 did not constitute a concluded agreement between the parties with respect to the points settled therein and the Tribunal ignoing the history and repeated advantage taken by the employer of this concluded agreement on numerous occasions accepted the contention of the employer.
IT is therefore necessary first to point out how from 1957 till as late as 1966 and even thereafter the employer non suited the union, if that is a proper term, by setting up the very agreement which now the employer wants to urge that it is not a concluded agreement.
The three important clauses of the agreement emerging from the correspondence relevant to the present dispute are that (i) the Hindustan Lever Mazdoor Sabha was recognised by the employer as a representative union for all sections of field force all over India in the employment of the employer and (ii) the union agreed to bring all matters relating to wages/salaries and terms and conditions of service on an All India basis and not on regional basis as far as field force is concerned and (iii) that in future disputes, the employer will not contest issue about member of the field force being workmen but shall contest issues only on their merits in the same way as the employer would do for other employees.
Freed from technical jargon, the employer agreed and undertook not to contest in any industrial dispute the status of the field force as not being workman within the meaning of the expression in the and that reference, if any, would be contested on the merits of the industrial dispute in respect of which reference is made to the Industrial Tribunal.
The out come of the agreement would be that if a dispute of an all India nature in respect of the field force is raised at a regional level, founding its contention on one of the terms of the agreement, the employer would be in a position to get any regional reference rejected on the ground that there is a subsisting valid agreement between the parties that such dispute of an all India nature in respect of the field force can be raised at Bombay only and within the jurisdiction of the Industrial Tribunal at Bombay only.
317 There is no dispute between the parties that if there is an agreement such would be the out come of it.
This is not only not in dispute but it is conceded that a settlement was arrived at in respect of industrial disputes between the employer and the union concerning the field force including salesman in 1957, 1959 and 1964.
An averment to this effect is made in Paragraph 'H ' of the petition for special leave and Anx.5 was annexed to the petition which purports to be the settlement dated December 22, 1964.
It is signed by Shri C.J. Mahimkar, Joint Personnel Manager on behalf of the employer and Shri A.K. Basu, General Secretary of the union at the relevant time.
The various industrial disputes in respect of which settlement is arrived at were between the employer and the workmen of the company who were the members of the field force (salesmen, sales supervisors etc.) employed in any part of India.
This settlement was arrived at under the and was registered according to the requirements of the .
This implies that the status of the salesman as being workman within the meaning of the expression of the was not only not disputed but specifically conceded and that must obviously be pursuant to the subsisting agreement.
This is however an inference so it is better now to move on to adjudication and award by a forum with jurisdiction to decide the point.
The Chief Commissioner of Delhi referred an industrial dispute whether workmen whose names were set out in the order of reference be paid compensation in addition to the usual remuneration for the period they had marketed Erasmic Blades and what directions were necessary in this behalf.
The reference was between the employer the present respondent and the appellant union.
In this reference, the workmen who claimed remuneration were Delhi based salesmen of the employer.
The employer appeared and contested the reference.
The only important contention raised on behalf of the employer which must be noticed reads as under: "That the concerned workmen are members of the field force of the company; that the field force unit is a separate unit known as Field Force Unit; that they are liable to be transferred anywhere in India; that the Field Force Unit is controlled by Company 's Head Office in Bombay; that it was agreed between the company and the Hindustan Lever Mazdoor Sabha, Bombay that all matters relating to Field Force Unit would be dealt with by both parties at Bombay on all India basis and if no settlement is reached, the dispute 318 shall be raised in Bombay in accordance with ; and that any settlement or Award therein would be made applicable and shall be binding on all members of the field force all over India." (Emphasis supplied).
The employer also contended that in view of the agreement between the parties, the dispute referred to the Industrial Tribunal regarding the field force could not be raised at Delhi.
It was also contended that in view of the agreement subsisting between the parties, the employer had agreed not to contest the issue that its salesman were not workmen within the meaning of the expression in the .
A further contention was raised that the union has committed breach of the agreement by raising the dispute at Delhi.
The union while conceding that there was an agreement between the parties as alleged by the employer contested the issue by saying that the dispute was not of an all India nature as it was concerning only some Delhi based salesmen of the employer and therefore the dispute was not covered by the agreement.
The Industrial Tribunal (Shri Roop Chandra) on the rival contentions of the parties, raised the following issues: "ISSUES "1) Is there any agreement between the Company and its workmen through the Hindustan Lever Mazdoor Sabha that all matters relating to members of the field force would be dealt with by both the parties in Bombay on an all India basis and that if no settlement is reached, the dispute would be raised in Bombay in accordance with the ? 2) Does the said agreement prevent the workmen in this case from raising the dispute in Delhi ? 3) Are the employees concerned not 'workmen ' within the meaning of the term under the ? If so, has the tribunal no jurisdiction ? 4) Whether workmen have committed a breach of the agreement alleged to have been entered into between the management and the union in 1957 and if so, is the 319 management not entitled to raise the plea that the salesmen are not 'workmen ' within the meaning of . ?" It would thus appear at a glance that it was the employer who wanted the reference to be rejected on the preliminary objection that there was a valid subsisting concluded agreement between the parties which had a direct bearing on the industrial dispute involved in the reference and that because of the agreement and as a necessary corollary of the agreement the Tribunal had no jurisdiction to entertain the dispute.
Now see the out come of this contention of the employer.
On Issue Nos. 1 and 2, Shri Roop Chandra as per his award dated November 17, 1966 held that in view of Exs.
W 2, W 3 and W 4 marked in evidence in the reference before him as Exs.
M 1, M 2 and M 3 produced and relied upon by the management that is the employer, the Industrial Tribunal at Delhi would have no jurisdiction to entertain it.
It was never contended by the employer before Shri Roop Chandra that the three documents did not end in a concluded agreement.
On a contrary parties were ad idem that there was a concluded agreement between the parties.
The difference was in their approach as to the applicability of various clauses of agreement to the dispute raised in the reference before the Tribunal.
The employer contended that the dispute was of an all India nature and therefore could not be raised at Delhi.
The union on the other hand, contended that the dispute was of a regional nature concerning only 16 Delhi based salesmen of the Company and therefore the dispute could not be styled as an all India dispute.
The Tribunal held that the dispute was of an all India nature, related to the duties and liabilities of all members of the field force employed all over India and it involved such a major issue as salary and wages.
Approaching the matter from this angle, the Tribunal further held on the basis of the agreement, that the dispute could only be taken cognizance of at Bombay.
The Tribunal was of the opinion that the agreement was valid and did not contravene Sec.
28 of the Indian Contract because where the parties choose to have the matter entertained in one of the two or more courts having jurisdiction to entertain the matter, such an agreement does not contravene Sec.
The Tribunal further held that the agreement had the sanctity of a contract and the parties must be held to the contract.
The Tribunal concluded by observing that the union was not justified in raising 320 the dispute in Delhi in view of its agreement with the employer as evidence by the three documents and that it is not expedient in the interest of justice and peace and harmony in industry that the Tribunal should adjudicate the matter of an all India nature.
So saying the Tribunal rejected the reference.
The question is who took advantage and benefit of the agreement ? Unquestionably, the employer who now decades after successfully contending before another Tribunal that there was a valid and concluded agreement, wants to contend that the three documents Exs.
W 1, W 2 and W 3 do not spell out a concluded agreement but an inchoate one which remained at the stage of negotiations only.
But that is not the end of the vacillation on the part of the employer.
Mr. Pai, learned counsel on behalf of the employer on the other hand contended that the union has expressly repudiated the agreement and therefore, it is not open now to the union to take recourse to the agreement.
It was submitted that if the union has committed a breach of the agreement, if there was any, the employer is absolved from observing or complying with the agreement.
To substantiate this submission, our attention was invited to a reference made by the Lt. Governor, Delhi to the Addl.
Industrial Tribunal constituted for the Union Territory of Delhi, then presided over by Shri Hans Raj for adjudication of the following two issues: '1.
whether the deduction of leave by the management for the year 1967 is illegal and/or unjustified and if so, to what relief are the affected workmen entitled and what directions are necessary in this respect ? 2.
Whether the management was obliged to grant special increment to all of its workmen in Delhi Branch and if so, to what relief the affected workmen are entitled and what directions are necessary in this respect ?" The union filed a statement of claim and subsequently filed an additional or amended written statement in which inter alia it was contended 'that the workmen of the concern throughout India were agitated because of this measure and its wholly illegal implementation and the applicant Sabha led the opposition of the scheme and the resistance of the workmen to it. ' This averment was relied upon to urge that the union raised a dispute of an all India nature at Delhi which was the regional centre and this would imply intentional breach or repudiation of the agreement.
Before we examine this contention, 321 it is necessary to refer to para 10 of the amended statement of claim in which the union states as under: "That the binding nature of the agreement has been flagrantly flouted by the Management and the very basis of collective bargaining for industrial peace has been attacked.
" This would show that the union accused the employer of breach of agreement.
On the other hand, the employer in its written statement contended as under: "No claim on behalf of the employees of the Field Force can be taken up by Hindustan Lever Mazdoor Sabha, Delhi Centre and this Hon 'ble Tribunal has no jurisdiction to entertain the same in view of an agreement arrived at and between the Company and the Hindustan Lever Mazdoor Sabha in 1957.
" (emphasis supplied) It would be crystal clear that the employer wanted the reference to be rejected at the threshold on the preliminary objection that in view of the concluded binding agreement between the parties, the dispute referred to for adjudication being of an all India nature, the union was precluded from raising the same at a regional level and the Tribunal had no jurisdiction to entertain the same.
Apart from the extracted specific contention in paragraphs 5 and 6, the contention is elaborated by the employer and it was specifically contended that in the award dated Nov. 17, 1966 by Shri Roop Chandra, Addl.
Industrial Tribunal, Delhi, it was held that a valid agreement was in existence between the parties and no dispute pertaining to the members of the Field Force can be raised anywhere except in the State of Maharashtra.
It was further contended that the award of Shri Roop Chandra was confirmed by the High Court of Delhi by summarily dismissing the Writ Petition No. 1163/67 filed by the union against the award and when the union approached the Supreme Court in Appeal No. 42/68, the same was rejected thereby affirming the existence and binding character of the agreement.
These assertions by the employer flow from the pleadings.
To revert to the narration, Shri Hans Raj proceed on leave and then retired and when a new Presiding Officer was appointed, the reference with one application filed by the union to summon certain documents came up before the Tribunal.
By a laconic order, unsupported by any reasoning, the Tribunal observed that the salesmen are not workmen and so the documents need not be summoned.
It was this order on the application which was chal 322 lenged in the writ petition filed by the union.
It is difficult to appreciate what permitted the Tribunal to hold that the salesmen are not workmen within the meaning of the expression in the and why it did not consider the specific contention that the employer was estopped from raising the contention as to the status of the salesmen in view of the binding agreement between the parties.
But for the present purpose, it is sufficient to notice that the employer and the union both swore by the agreement and at any rate the employer never contended that there was no concluded agreement between the parties covering one of the points in the dispute namely, the status of the members of the Field Force including salesmen.
Mr. Pai next turned to another round of litigation between the parties.
It appears that effective from September 6, 1966, the employer reorganised its marketing organisation into two divisions, the Main Lines Division and the Speciality Lines Division.
The Calcutta Branch of the employer was concerned only with marketing.
The workmen at Calcutta were directly affected by the reorganiszation.
On a dispute raised by the union, the Government of West Bengal referred the following dispute for adjudication to the Industrial Tribunal "Is the human rationalisation as a measure of economic reorganisation of the company reflected through job integration that have either been effected or proposed to be effected justified ?" Pending adjudication of the dispute, some workmen filed applications under Sec.
33A of the before the Tribunal alleging that during the pendency of the adjudication their service conditions had been altered adversely and their salary for the month of October, 1966 had not been paid.
The Tribunal granted the applications of the workmen and the employer approached the Supreme Court by special leave.
The main reference was finally disposed of in favour of the employer upholding the reorganisation of marketing organisation.
The union questioned the correctness of this award before the Supreme Court.
Both the groups of appeals came up for hearing together and the decision of this Court is reported in Hindustan Lever Ltd. vs Ram Mohan Ray & Ors.
This Court upheld the right of the employer to organise and reorganise its work in the manner it pleases.
Accordingly the appeals filed by the union were rejected.
323 The appeals filed by the employer against the award in favour of the workmen in the applications under Sec.
33A were equally rejected by this Court holding that non payment of wages in the circumstances of the case amounts to an alteration in the conditions of service.
Frankly, this decision sheds no light on the point under discussion because neither side relied upon the agreement nor did the agreement figure into the dispute.
However, it is interesting to note that when the main reference was before the Tribunal, a preliminary objection was raised on behalf of the employer to the effect that by an agreement entered into in January 1957 by and between the employer and union, it was agreed that all matters relating to the matters of the outdoor marketing staff, to wit members of the field force can be raised at Bombay only and as such the company as well as the Sabha are bound by the aforesaid agreement.
Therefore, not only the employer affirmed the agreement, did not contend that it was an inchoate one but specifically placed that it is a concluded binding agreement between the parties.
It appears that there was one more reference I.D. No. 43/72 between the parties at Delhi.
Following the decision of this Court in the case just herein discussed, the reference was rejected.
Mr. Pai next referred to an order in Reference (I.D.) No. 203/70 by the Industrial Tribunal Maharashtra between the employer and the workmen employees under it.
The demand which was referred for adjudication included revision of pay scales with adjustment, revision of the wage scale of sub clerical grade, gratuity disturbance allowance/and settling in allowance to the office staff, allowance to office staff while on tour, acting allowance, overtime wages, cash allowance and leave travel facilities.
The employer raised number of preliminary objections, one such being that Salesmen, Marketing Research Investigators, Market Research Supervisors, Sales Supervisors, Trade Marks Investigators, Seed Buyers and Supervisors of clerical staff are not workmen within the meaning of the expression in the , and hence no industrial dispute can be raised on their behalf and consequently the Tribunal had no jurisdiction to adjudicate upon the same.
The union countered this preliminary objection by asserting that the contention about the status of the aforementioned categories is barred by the principle of res judicata in view of the award dated April 13, 1967 made by the 3rd Industrial Tribunal, West Bengal.
The Tribunal rejected the contention of the union observing that the dispute between them is not of an all India nature and therefore, the employer is entitled to raise the question about the status of the work 324 men included in the aforementioned categories.
This would imply that the reference was rejected not on the ground that there was no agreement but on the ground that the dispute involved in the reference was not covered by the agreement.
In the same reference, a plea of estoppel raised on behalf of the union to the effect that the company was precluded in view of the subsisting agreement from questioning the status of the salesmen and allied categories as workmen was overruled by the Tribunal observing that Exs.
W 2, W 3 and W 4 leave no doubt that the employers ' agreement not to dispute the status of the Field Force was only on the clear understanding that it will be so, if dispute is raised on all India basis.
The Tribunal then observed that the dispute admittedly was not an all India dispute and therefore, rejected the plea of estoppel.
It is at this stage necessary to refer to one more reference between the parties being I.T. No. 233/67.
The dispute referred to was a demand by the workmen to withdraw the reorganisation integration imposed on the Supervisors attached to the Sales Department and impending in the case of Field Force (Salesmen) and other staff attached to the Sales, Accounts, Transport and allied department.
This demand was rejected by the Tribunal following the decision in Hindustan Lever Ltd. vs Ram Mohan Ray & Ors.
(supra) The rejection of the demand has no impact at all on the point under discussion.
Having meticulously examined various references pertaining to various industrial disputes between he parties at different centres in India since the agreement in 1957, it unquestionably emerges that the employer till the present reference never once even whispered that the agreement was not a concluded agreement or that it was an inchoate one left hanging at the stage of negotiations.
But in the present reference the contention raised was that the agreement was not a concluded agreement because that is how the Tribunal has approached the problem.
The Tribunal has observed in this behalf as under: "According to the management the three letters do not constitute an agreement because in an agreement there should be an offer and the offer must be accepted as such.
They have argued that the offer made in exhibit W 2 have not been accepted as such in exhibit W 3 . . . . " The employer which swore by the agreement and repeatedly succeeded in getting thrown out certain references at the threshold on account of the agreement, now wants to contend that there was no 325 concluded agreement, and ignoring the whole history, the Tribunal falls into an error in accepting this contention.
The weight of evidence not only not at all referred to by the Tribunal but frankly wholly ignored clearly and unmistakably leads to one and one conclusion alone that according to the employer there was the concluded agreement between the parties.
It is a solemn agreement, the agreement of which effective and wholesome advantage has been taken by the employer and when it now does not suit it, it in breach of the solemn agreement wants to turn round and not only repudiate it but disown it as having never been entered into.
No Court of justice can ever permit such a thing to be done.
Mr. Pai, however, raised a very technical contention that the preliminary objection raised by the union that the employer is estopped from questioning the status of the salesmen or members of the Field Force being not workmen within the meaning of the expression in the must be rejected either on the principle of issue of estoppel or promissory estoppel and neither of the three contentions is available to the union notwithstanding the fact whether the agreement exists or stands repudiated and therefore, the Tribunal was justified in rejecting the contention of the union.
Mr. Pai in support of the submission urged that at no time as the status of the salesmen as not being workmen or otherwise was ever directly and substantially in issue in earlier references, the issue cannot be rejected on the ground of res judicata and at any rate there was no decision on this issue and therefore the principle of issue estoppel cannot preclude the employer from raising the contention.
Mr. Ramamurthi, on the other hand, contended that it is not the contention of the union that the issue about the status of the salesmen is res judicata but what is res judicata is the existence and binding character of the agreement which was directly and substantially in issue between the parties in the award given by Shri Roop Chandra and in various other awards.
In order to appreciate rival contentions it is necessary to focus attention on the issues framed by Industrial Tribunal presided over by Shri Roop Chandra in I. D. No. 46 of 1966.
These issues have been extracted earlier.
The most important issue was Issue No. 1 about the existence of a binding agreement between the parties which would preclude the employer from ever questioning the status of the salesmen till the agreement remains subsisting and till it is terminated.
The issue was: 'is there any agreement between the company and 326 its workmen covering inter alia the question about the status of salesmen? And the answer was: 'there is such a valid and subsisting agreement and that position was adopted by none other than the employer and the employer succeeded in getting the reference thrown out at the threshold on the ground that in view of the subsisting valid agreement between the parties, the union was estopped from raising a dispute of an all India nature at a regional level and it can only be raised at Bombay and therefore, the Industrial Tribunal at Delhi had no jurisdiction to entertain the same.
Even if the technical principle of res judicata is imported in the field of industrial adjudication, the issue about the existence of an agreement was substantially and directly in issue between the parties in the earlier proceedings and was decided in the affirmative that there exists such an agreement.
In the reference from which the present appeal arises, the employer contended that there is no such concluded agreement as pleaded by the union, and therefore, the issue that arises is: whether there is such an agreement as pleaded on behalf of the union.
But that was the specific issue in Reference I.D. No. 46 of 1966 between the same parties.
To that extent, one can say that unless change of circumstances are established, the issue would be res judicata.
But we consider it inappropriate to usher in this technical concept of res judicata pervading the field of civil justice into the field of industrial arbitration.
The apprehension was voiced by this Court in Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. vs Shahdara (Delhi) Saharanpur Railway Workers Union (1) when it said that it is doubtful whether the principles analogous to res judicata can properly be applied to industrial adjudication.
We are not unaware of the legal position that principle of res judicata was invoked and applied by this Court in Workmen of Straw Board Manufacturing Co. Ltd. vs M/s. Straw Board Manufacturing Co. Ltd.(2) One can safely say that principle analogous to res judicata can be availed of to scuttle any attempt at raising industrial disputes repeatedly in defiance of operative settlements and awards.
But this highly technical concept of civil justice may be kept in precise confined limits in the field of industrial arbitration which must as far as possible be kept free from such technicalities which thwart resolution of industrial disputes.
We however proceed on the assumption that an industrial dispute may be rejected on the principle analogous to res judicata.
The matter however may be looked at from a slightly different angle.
The concept of compulsory adjudication of industrial disputes was statutorily ushered in with a view to providing a forum 327 and compelling the parties to resort to the forum for arbitration so as to avoid confrontation and dislocation in industry.
A developing country like India can ill afford dislocation in industrial production.
Peace and harmony in industry and uninterrupted production being the demands of the time, it was considered wise to arm the Government with power to compel the parties to resort to arbitration and as a necessary corollary to avoid confrontation and trial of strength which were considered wasteful from national and public interest point of view.
A welfare State can ill afford to look askance at industrial unrest and industrial disputes.
(See Dahyabhai Ranchhoddas Shah vs Jayantilal Mohanlal(1).
The did not confer till the introduction of Chapters V A and V B, any special benefits or enforceable benefits on the workmen.
The was designed to provide a self contained Code to compel the parties to resort to industrial arbitration for the resolution of existing or apprehended disputes without prescribing statutory norms for varied and variegated industrial relation norms so that the forums, created for resolution of disputes may remain unhampered by any statutory control and devise rational norms keeping passe with improved industrial relations reflecting and imbibing socioeconomic justice.
If this is the underlying object behind enactment of the the Court by interpretative process must strive to reduce the field of conflict and expand the area of agreement and show its preference for upholding agreements sanctified by mutuality and consensus in larger public interest, namely to eschew industrial strife, confrontation and consequent wastage.
The parties in this case entered into a solemn agreement.
It is not for a moment suggested that the agreement has been terminated.
The only argument put forward on behalf of the employer was that the union has repudiated the agreement by raising disputes of an all India nature at a regional level and thereby committed breach of the agreement.
This contention is entirely without merits.
What has happened is that the union raised certain disputes which according to the union were of a regional nature and which it was not estopped from raising in the teeth of the terms of the binding agreement between the parties.
On the other hand the employer contended that the disputes so raised were of an all India nature.
Both sides swore by the agreement the difference in approach being whether the dispute was of an all India nature or of regional nature.
The emerging situation would be that neither the union repudiated the agreement nor the employer and till the present dispute, both swore by the agreement.
The divergence in 328 the approach was as to the interpretation the coverage, the ambit and the width of the agreement.
Both the parties swore by the agreement but differed in their approach and interpretation and the forum namely the Industrial Tribunal consistently upheld at the instance of the employer that there was a binding valid agreement subsisting between the parties forbidding the union from raising a dispute of an all India nature at the regional level and succeeded in getting the reference thrown out at the threshold on the ground that the dispute was of an all India nature and not of a regional level as contended by the union.
This constitutes adherence to agreement, performance of the agreement, implementation of the agreement and being bound by the agreement.
This conduct in no sense can be said to constitute repudiation of agreement by the union.
Unilateral repudiation of an agreement, as contended by Mr. Pai, does not result in termination of a solemn agreement because the wrongful repudiation can be corrected by enforcement of agreement through machinery provided by the statute.
And that is what the employer has succeeded in achieving.
The employer relying on the agreement got a number of references rejected on the preliminary objection founded on the agreement.
The employer cannot therefore be heard to say that the attempted repudiation by the union, if any, permits the employer to disown the same when it suits it.
Unilateral repudiation is distinct from termination and an agreement/settlement remains in force and binding till terminated and does not come to an end by unilateral repudiation.
But it must be made clear that there is no substance in the contention of Mr. Pai that the union repudiated the agreement.
If thus the employer swore by the agreement relied upon it and successfully contested the claim of the union it cannot now be permitted to back out from such solemn agreement and apart from the technicality of the issue being res judicata or issue estoppel, industrial peace and harmony good behaviour and fair relation with workmen estopes the employer from either repudiating the agreement or contending that the agreement was not a concluded agreement but an inchoate one.
In this connection we may profitably refer to Western India Match Co. vs Their Workmen(1) wherein this Court observed as under: "It is not out of place to mention in this connection that on some previous occasions the management itself has treated these categories as workmen within the meaning of the U.P.
The management 's contention that 329 the Tribunal has erred in thinking that the inspectors, salesmen and retail salesmen are workmen must therefore be rejected." Same view was adopted in Aluminium Factory Worker 's Union vs Indian Aluminium Co Ltd.(1) In that case certain correspondence which passed before and after the awards between the parties was referred to.
This correspondence showed that the appellant/union and the staff association of the company fully accepted the principle that Supervisors would no longer be regarded as workmen and that Supervisors had resigned from membership of the workmen unions.
These averments in the correspondence regarding the status of the Supervision being not workmen was held binding between the parties and both the Industrial Tribunal and this Court declined to examine the contention about the status on merits If the union can be held bound to such an inferred agreement from correspondence, the employer conceding the status or to be precise conceding not to contest the status of salesmen would equally be binding on the employer.
It would thus appear that the employer management was held bound not by any specific agreement but an agreement spelt out of its conduct in Western India Match Co. case and assertions in correspondence in India Aluminium Co. case treating certain categories of the workmen as workmen or not as workmen or not as workmen respectively within the meaning of the expression in the then at a later stage the employer and the union respectively were estopped from contending to the contrary.
The case before us is much stronger in that there is a concluded binding agreement between the parties neither repudiated nor terminated till today which provides that the employer on its part will not contest the status of the membership of the Field Force including the salesmen employed by the Company as workmen within the meaning of the expression in the .
Therefore the Tribunal committed a serious error apparent on recorded in holding that there was no concluded agreement between the parties as emerging from Exs.
W 2, W 3 and W 4.
The Tribunal negatived the contention of the union that the employer was estopped from challenging the status of the workmen also on the ground that there can be no estoppel against the statute We must confess that even Mr. Pai did not appear to be very enthusiastic to support the finding of the Tribunal that even if there is a binding agreement between the parties and therefore the employe is estopped 330 from questioning the status of salesmen as being workmen, it cannot be availed of by the union because there can be no estoppel against a statute.
We find it very difficult not only to understand but to appreciate the approach and the finding of the Tribunal in this behalf.
There is no statutory provision that a status of a person invoking the jurisdiction of the Tribunal must be adjudicated upon notwithstanding that no contention to that effect is raised.
No statutory provision was brought to our notice which would be rendered nugatory or ineffective if the Status of workman is not questioned.
Nor it can be said that the employer has contracted out of the benefits of a statute.
Whether a particular person is a workman or not depends upon factual matrix.
Workman is defined in Sec.
2(S) of the .
The ingredients and the incidents of the definition when satisfied.
the person satisfying the same would be a workman.
Negatively, if someone fails to satisfy one or other ingredient or incident of the definition he may not be held to be workman within the meaning of the expression in the .
There is no provision in the which obliges the Industrial Tribunal or other forums set up under the to decide even in the absence of a contention from the employer, a preliminary issue whether the person who has invoked its jurisdiction is a workman or not.
There is no such obligation cast statutorily on the Tribunal.
If the employer does not arise contain about the status of the workman approaching the Tribunal the Tribunal has no obligation to decide the status of the person whether he is a workman or not.
Conversely if the employer agrees not to question the status in future it would only imply that such a contention would not only be not raised but if raised it would not be pressed and if pressed should be negatived in view of the binding agreement.
The resultant situation would be that the Tribunal must proceed on the assumption that no such contention is raised and required to be adjudicated upon.
If the contention is not raised the Tribunal is under no obligation suo motu or on its own to raise and decide such a contention to cloth itself with jurisdiction to adjudicate upon the dispute.
The Tribunal derives its jurisdiction by the order of reference and not on the determination of a jurisdictional fact which it must of necessity decide to acquire jurisdiction.
Therefor the Tribunal was clearly in error in holding that the contention convassed on behalf of the union would permit it to raise estoppel against a statute.
Undoubtedly it is true that there can be no estoppel against the law of the land.
If a party is estopped by doing a thing which it is under a legal disability to perform or forbearing to do something which it is his duty to do the result would be an enlargement of the contractual or other rights allowed by law or their alteration.
The 331 Court enforces the performance of statutory duty and declines to interfere for the assistance of persons who seek its aid to relieve them against the express statutory provision.
Approving the dicta in Maddison vs Alderson(1) this Court observed in K.Ramadas Shenoy vs The Chief Officers, Town Municipal Council, Udipi and Ors.
,(2) that an excess of statutory power could not be validated by acquiescence in or by the operation of estoppel.
Is that the situation here? The Tribunal observed that notwithstanding the fact that the employer has agreed to recognise the union as representative of the Field Force including the salesmen, agreement between the parties cannot override the statute and if therefore Shri A.K. Basu is not workman under the , the agreement between the Union and the employer cannot confer on the Tribunal any jurisdiction to give any relief to him under the .
The Tribunal completely misdirected itself when it assumed and arrogated to itself the obligatory duty in the absence of an impermissible contention, to raise one and proceeded to adjudicate upon, notwithstanding the fact if the agreement is subsisting no such contention can be raised and if raised has to be ignored as an irrelevant pleading.
In this connection, it may be recalled that when a reference is made under Sec.10 of the , Rule 10 B of the Industrial Disputes (Central) Rules, 1957 obliges the workman involved in the reference to file with the Tribunal a statement of demands relating only to the issues as are included in the order of reference and simultaneously serve a copy of the same to the employer.
Sub rule(2) enjoins the employer within two weeks of the receipt of the statement of claim to file its rejoinder and simultaneously serve a copy of the same on the workman.
Ordinarily, the Tribunal after ascertaining on what issue the parties are at variance raises issues to focus attention on points in dispute.
In industrial adjudication , issues are of two types: (i) those referred by the Government for adjudication and set out in the order for reference and (ii) incidental issues which are sometimes the issues of law or issues of mixed law and fact.
The Tribunal may as well frame preliminary issues if the point on which the parties are at variance, as reflected in the preliminary issue, would go to the root of the matter.
But the Tribunal cannot travel beyond the pleadings and arrogate to itself the power to raise issues which the parties to the reference are precluded or prohibited from raising; to wit if the employer does not question the status of the workmen, the Tribunal cannot suo motu raise the issue and proceed to adjudicate upon the same and throw out 332 the reference on the sole ground that the concerned workman was not a workman within the meaning of the expression of the .
And it is not obligatory upon the employer necessarily to raise the contention that the concerned workman was not a workman within the meaning of the expression under the .
Therefore, the Tribunal was wholly in error in holding that if the contention of the union were to prevail, the well laid rule of no estoppel against a statute would be violated.
Having examined all the dimensions of the matter, it is crystal clear and is indisputably established that the agreement relied upon by the union is a valid subsisting agreement.
It is in force.
It is neither repudiated nor terminated.
It is binding upon both the parties.
Once the agreement is held to be binding, the employer is estopped from contending that the workmen involved in the dispute who were salesmen were not workmen within the meaning of the expression under the .
Therefore, the Tribunal was in error in undertaking to examine that contention and answer it.
That part of the order/award of the Tribunal is unsustainable and must be quashed and set aside.
We accordingly, direct the Tribunal to proceed to determine the dispute on merits without concerning itself with the consideration of the question whether the concerned workmen were workmen within the meaning of the expression under the .
This appeal accordingly succeeds and the award of the Tribunal to the extent indicated herein is quashed and set aside and the matter is remitted to the Industrial Tribunal with a direction to proceed further in the light of the observations made in this judgment.
The respondent shall pay to the appellant costs quantified at Rs. 3,000.
N.V.K. Appeal allowed.

summary/full:
The appellant Union and the respondent company through their communications dated January 24,1957, April 24,1957 and May 1,1957 concluded an agreement relating to various items of industrial disputes which inter alia provided that the employer had agreed not to contest the issue whether field force including salesmen were not 'workmen ' within the meaning of the expression in the and that disputes of an All India nature could be raised only at Delhi.
Two employees of the Respondent company who were salesmen and protected workmen with the meaning of the expression in the and who were office bearers of the union, were charge sheeted and after a disciplinary enquiry their services were terminated.
The appellant union raised an industrial dispute contending that the termination of services of these two workmen were illegal and invalid, and that the enquiry was equally illegal, and improper, and that the action of the employer was an act of reprisal and victimization, because of their trade union activities.
The Government referred the industrial dispute to the Industrial Tribunal.
The employer contended that the two workmen were not 'workmen ' within the meaning of the expression in the Act and that the Government had no jurisdiction to refer the dispute to the Industrial Tribunal.
It was further contended that the services of the workmen were terminated not by way of punishment but under the contract of service and that the disciplinary enquiry which was commenced was subsequently dropped.
The appellant union however contended that the employer was estopped from challenging the status of the two workmen within the meaning of the expression 308 in the Act on account of the subsisting, valid, concluded agreement between the parties and that in view of the award of the Industrial Tribunal, Delhi in I.D. No. 46/66.
The contentions about the existence of the agreement and the status of salesmen were res judicata and could not be reopened so long as the agreement was in force and operative.
The Tribunal rejected the preliminary objections raised on behalf of the union and came to the conclusion that the three communications dated January 24,1957, April 24,1957 and May 1, , W 3, W 4 respectively did not spell out a complete, concluded agreement between the parties on the points mentioned therein but it was an inchoate agreement in the stage of negotiations and the employer was not bound to stand by its offer made in the communication dated January 24,1957 denying itself the right to contest the status of the field force including salesmen as not being workman within the meaning of the Act.
The award of the Industrial Tribunal, Delhi in I.D. No. 46/66 in which it was held that there was a concluded agreement between the parties and therefore the industrial disputes raised therein could not be adjudicated at Delhi did not operate as res judicata because the issue in that award was not directly and substantially in issue in the present reference.
The Tribunal set down the reference for further hearing.
Allowing the Appeal: ^ HELD: 1.
The Tribunal committed a serious error, apparent on record in holding that there was no concluded agreement between the parties as emerging from Exs.
W 2, W 3, and W 4.
[329 F] In the instant case, having meticulously examined various references pertaining to various industrial disputes between the parties at different centres in India since the agreement in 1957 it unquestionably emerges that the employer till the present reference never once even whispered that the agreement was not a concluded agreement or that it was an inchoate one left hanging at the stage of negotiations.
It was only in the present reference the contention raised was that the agreement was not a concluded agreement.
The employer which swore by the agreement and repeatedly succeeded in getting thrown out certain references at the threshold on account of the agreement contended that there was no concluded agreement, and ignoring the whole history, the Tribunal fell into an error in accepting this contention.
The Tribunal wholly ignored the fact that it was a solemn agreement, of which effective and wholesome advantage had been taken by the employer and when it did not suit it, it wanted to turn round and not only repudiate it but disown it.
No court of justice can ever permit such a thing to be done.
[324 E 325 B] Hindustan Lever Ltd. vs Ram Mohan Ray & Ors., ; Western India Match Co. vs Their Workmen ; at 566; and Aluminium Factory Workers, Union vs Indian Aluminium Co. Ltd. , referred to 2.
The Tribunal is directed to proceed to determine the dispute on merits without concerning itself with the consideration of the question whether the concerned workmen were workmen within the meaning of the expression under the Act.
[332 E] 3.
The concept of compulsory adjudication of industrial disputes was statutorily ushered in with a view to providing a forum and compelling the parties 309 to resort to the forum for arbitration so as to avoid confrontation and dislocation in industry.
A developing country like India can ill afford dislocation in industrial production.
Peace and harmony in industry and uninterrupted production being the demands of the time, it was considered wise to arm the Government with power to compel the parties to resort to arbitration and as a necessary corollary to avoid confrontation and trial of strength, which were considered wasteful from national and public interest point of view.
A welfare State can ill afford to look askance at industrial unrest and industrial disputes.
[326H 327B] Dahyabhai Ranchhoddas Shah vs Jayantilal Mohanlal.
,[1973] Lab.
& Industrial Cases 967 referred to.
The Act did not confer till the introduction of Chapters V A and V B, any special or enforceable benefits on the workmen.
The Act was designed to provide a self contained Code to compel the parties to resort to industrial arbitration for the resolution of existing or apprehended disputes without prescribing statutory norms for varied and variegate industrial relation, so that the forums created for resolution of disputes may remain unhampered by any statutory control and devise rational norms keeping place with improved industrial relations reflecting and imbibing socioeconomic justice.
If this is the underlying object behind enactment of the Act, the Court by interpretative process must strive to reduce the field of conflict and expand the area of agreement and show its preference for upholding agreements sanctified by mutuality and consensus in larger public interest, namely to eschew industrial strife, confrontation and consequent wastage.
[327 C E] 5.
It is inappropriate to usher in the technical concept of res judicata pervading the field of civil justice into the field of industrial arbitration.
The principle analogous to res judicata can be availed of to scuttle any attempt at raising industrial disputes repeatedly in defiance of operative settlements and awards.
But this highly technical concept of civil justice may be kept in precise confined limits in the field of industrial arbitration which must as far as possible be kept free from such technicalities which thwart resolution of industrial disputes.
[326 D G] Shahdara (Delhi) Sharanpur Light Railway Co. Ltd. vs Shahdara(Delhi) Sharanpur Railway Workers Union, at 742; and Workmen of Straw Board Manufacturing Co. Ltd. vs M/s Straw Board Manufacturing Co. Ltd. ; referred to.
Unilateral repudiation is distinct from termination and an agreement/settlement remains in force and binding till terminated and does not come to an end by unilateral repudiation.
[328 E] In the instant case, the parties entered into a solemn agreement.
It is not suggested that the agreement has been terminated.
The only argument put forward on behalf of the employer was that the union has repudiated the agreement by raising disputes of an all India nature at a regional level and thereby committed breach of the agreement.
This contention is entirety without merits.
What has happened is that the Union raised certain disputes which according to the Union were of a regional nature and which it was not estopped from raising in the teeth of the terms of the binding agreement between the parties.
On the other hand the employer contended that the disputes so raised were of an all India nature.
Both sides swore by the agreement, the difference in approach being whether the dispute was of an all India nature or of regional nature.
The divergence in approach 310 was as to the interpretation, the coverage, the ambit and the width of the agreement Both the parties swore by the agreement but differed in their approach and interpretation and the forum namely the Industrial Tribunal consistently upheld at the instance of the employer that there was a binding valid agreement subsisting between the parties.
This constitutes adherence to agreement, performance of the agreement, implementation of the agreement and being bound by the agreement.
This conduct in no sense can be said to constitute repudiation.
[327 F 328 C] 7.
The Tribunal derives its jurisdiction by the order of reference and not on the determination of a jurisdictional fact which it must of necessity decide to acquire jurisdiction.
[330 G] 8.
In industrial adjudication, issue are of two types: (i) those referred by the Government for adjudication and set out in the order of reference, and (ii) incidental issues involving mixed questions of law and facts.
The Tribunal may frame preliminary issues if the point on which the parities are at variance, go to the root of the matter.
But the Tribunal cannot travel beyond the pleadings and arrogate to itself the power to raise issues which the parties to the references are precluded from raising.
If the employer does not question the statues of the workmen, the Tribunal cannot suo motu raise the issue and proceed to adjudicate upon the same and throw out the reference on the sole ground that the concerned workman was not a workman within the meaning of the expression under the Act.
[331 G 332 A] 9.
Whether a particular person is a workman or not depends upon factual matrix.
Workman is defined in Sec.
2(s) of the Act.
The ingredients and the incidents of the definition when satisfied, the person satisfying the same would be a workman.
Negatively if someone fails to satisfy one or other ingredient or incident of the definition, he may not be held to be workman within the meaning of the expression in the Act.
[330 C] 10.
There is no provision in the Act which obliges the Industrial Tribunal or other forums set up under the Act to decide even in the absence of a contention from the employer, a preliminary issue whether the person who has invoked its jurisdiction is a workman or not.
There is no such obligation cast statutorily on the Tribunal.
If the employer does not raise the contention about the status of the workman approaching the Tribunal, the Tribunal has no obligation to decide.
The status of the person whether he is a workman or not.
The Tribunal must proceed on the assumption that no such contention is raised and is required to be adjudicated upon.
[330 D F]


judgement:
Civil Appeal (NCE) No. 735 of 1982.
From the Judgment and order dated the 22nd April, 1981 of the Punjab &; Haryana High Court in Election Petition No. 6 of 1980.
K.L. Sharma, A.S. Sohal and MC Phingra for the Appellant.
M. Yeerappa and Ashok Kumar Sharma for Respondent No. 1.
416 A.S. Pundir for Respondent No. 2.
The Judgment of the Court was delivered by FAZAL ALI, J.
This election appeal arises out of an election to the Baghapurana Constituency (District Faridkot) to the Punjab Legislative Assembly.
The polling took place on May 31, 1980 and the counting was done on June 1, 1980.
Tej Singh, respondent, secured 25694 votes whereas Avtar Singh (appellant) secured 25571 votes.
There were three other candidates also in the field, viz., (1) Sathi Ruplal, (2) Bhagat Puran Singh, and (3) Jagdish Chander.
Ruplal secured,.
1347 votes while Bhagat Puran Singh and Jagdish Chander secured 140 and 2856 votes.
respectively.
It appears that the margin between the votes secured by Tej Singh (respondent) and .
Avtar Singh (appellant) was only 123.
Avtar Singh filed an election petition in the Punjab & Haryana High Court against Tej Singh alleging that he was guilty of committing corrupt practices, detailed in the petition an(l in the Statement of facts.
Ruplal supported the appellant but Bhagat Puran Singh and Jagdish did not put in any appearance despite service and, therefore, the proceedings.
were taken ex parte against them.
Tej Singh denied having indulged in any corrupt practice as alleged by Avtar Singh.
It is not necessary for us to .
go into further details because, in our opinion, the appeal must succeed on a short point.
The main corrupt practice said to have been indulged in Tej Singh was that he had got circulated pamphlets and posters among the voters of the constituency wherein he had mentioned that Ruplal: had withdrawn his candidature and any vote given to him (Tej Singh) would be deemed to be a vote for Ruplal, and the said posters were printed not by Ruplal but at the instance of Tej Singh., on a perusal of the evidence both oral and documentary adduced by the parties, we are clearly of the opinion that the allegations of corrupt practices indulged in by Tej Singh have been clearly proved.
The posters said.
to have been printed and circulated are Annexures P 1 and P:2 which appear at page 42 of the second paper book and it may be necessary to extract certain portions thereof "Keeping in view the present conditions in the country it is imperative to defeat the dictatorial Congress in these elections.
417 Therefore, I fervently appeal to all the voters of Baghapurana Constituency to vote and elect Shri Tej.
Singh, the joint .
front candidate of the Akali Dal, because Shri Tej Singh is the only candidate who can defeat the Congress.
In the end r submit that every vote.
cast in favour of section Tej Singh will be deemed to have been cast in my favour," According to PW 4 (Roshanlal) in whose press the posters were printed, the order for the printing was placed by Darshan Singh and Mukhtiar Singh.
The witness goes on to state that a few (lays before Tej Singh had come to his printing press and informed him that he (Tej Singh) would be sending some work for printing.
Soon thereafter the witness was approached by Darshan Singh and Mukhtiar Singh.
Roshan Lal also admitted that Tej Singh was known to him.
The witness further proved exhibit P 5 and P 6 (vouchers) which were issued by his press and signed by him, and he stated that the payment was made to him by Darshan Singh and Mukhtiar Singh.
The effect of the posters was to mislead the voters so as to make them believe that one of the candidates, viz.; Ruplal, had withdrawn and any vote given to Tej Singh would be considered as a vote given to Ruplal.
In other words, the effect of the posters was that all the voters who would have voted for Ruplal would now cast their votes in favour of Tej Singh.
As the margin of votes between the defeated and the returned candidates was very small, viz. 123 votes, if such a misrepresentation was not made, in all probability the votes would have gone to the appellant (Avtar Singh) and, therefore, the result of the election would have been materially altered.
We find a good deal of substance in the argument of the appellant.
Tej Singh (R.W. 2) has not disputed that the payment of the vouchers .(Ex.
P 5 and P 6) was made by him and the vouchers were appended by him along with the return of expenses incurred during his election campaign, which was verified by him to be a true and correct statement.
In these circumstances, therefore, the irresistible inference and inescapable conclusion that can be arrived at is that Tej Singh had actually paid for the posters which were printed at his instance and Rup Lal was not collected with the printing of the posters.
Tej Singh further admitted that Bhum Raj was incharge of his election office at Moga and that Exs.
P 5 and P 6 were taken by him from Bhum Raj.
He further admits that whatever expenses were incurred by Bhum Raj were incurred on his behalf.
In other words, Tej Singh.
falsely represented to the voters that the posters were circulated by 418 Ruplal whereas the same was done by or with the consent of Tej Singh.
Therefore, it is clear that Ex P 1 and P 2 which contained the appeal purporting to be of Ruplal were in fact printed at the instance of Tej Singh and Ruplal had no connection with the same.
In these circumstances, we are satisfied that the appellant has , proved beyond reasonable doubt that Tej Singh had indulged in corrupt practices particularly when the printing of the posters by Tej.
Singh has been clearly admitted by him, as indicated above.
It is also clear to us that in view of the very narrow margin of votes (123) between Tej Singh and Avtar Singh, a strong presumption and possibility that the votes polled in favour of Rup Lal would have gone to Avtar Singh cannot be ruled out and that would have doubtless materially altered the result of the election.
Leaving aside other grounds taken by the appellant which were in fact not pressed before us, the appellant is entitled to succeed on the ground of corrupt practices (referred to above) as contemplated by section 123(2) of the Act having been adopted by the first respondent (Tej. Singh) which have been fully proved.
The result is that the appeal is allowed, the judgment of the High Court is quashed and the election of the first respondent (Tej Singh) is set aside.
In the circumstances, we make no order as to costs.
H.S.K. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The first respondent, Tej Singh, won in legislative assembly election defeating the appellant by 123 votes and also 3 other candidates including Ruplal.
The appellant challenged the election of Tej Singh on the ground that he was guilty of committing corrupt practices.
The main corrupt practice said to have been indulged in by Tej Singh was that he had got circulated pamphlets and posters among the voters of the constituency wherein he had mentioned that Ruplal had withdrawn his candidature and any vote given to him (Tej Singh) would be deemed to be a vote for Ruplal, and the said posters were printed not by Ruplal but at the instance of Tej Singh.
Allowing the appeal, ^ HELD .
The effect of the posters was to mislead the voters so as to make them believe that one of the candidates, viz., Ruplal, had withdrawn and any vote given to Tej Singh would be considered as a vote given to Ruplal.
in other words the effect of the posters was that the voters who would have voted for Ruplal would now cast their votes in favour of Tej Singh.
As the margin of votes between the defeated and the returned candidates was very small, viz., 123 votes, if such a misrepresentation was not made, in all probability the votes would have gone to the appellant (Avtar Singh) and, therefore, the result of the election would have been materially altered.
On a perusal of the evidence both oral and documentary adduced by the parties and in the circumstances of the case, the irresistible inference and inescapable conclusion that can be arrived at is that Tej Singh had actually paid for the posters which were printed at his instance and Ruplal was not connected p with the printing of the posters.
In these circumstances the appellant has proved beyond reasonable doubt that Tej Singh had indulged in corrupt practices particularly when the printing of the posters by Tej Singh has been clearly admitted by him.
[417 D E; G; 418 B]


judgement:
Civil Appeal No. 3429 of 1982 Appeal by Special leave from the Judgment and order dated the 29th July, 1982 of the Madhya Pradesh High Court in Misc.
Petition No. 1169 of 1981.
G.L. Sanghi and Ashok Srivastava for the Appellant.
D. Y.S. Chitale, Mrs. A K. Verma, D.N. Misra, A.M. Dittia and A K. Sanghi for the Respondents The Judgment of the Court was delivered by VENKATRAMIAH J.
The appellant is a judicial officer of the State of Madhya Pradesh, who would have ordinarily retired on January 31, 1984 on attaining 58 years of are, He was appointed 468 as a Munsiff Magistrate in the erstwhile State of Bhopal in 1953.
On reorganisation of States on November 1, 1956, he became a member of the Judicial Service of the State of Madhya Pradesh.
He was promoted as an Additional District Sessions Judge on January .
8, 1974 and was confirmed in that post with effect from November 25, 1971.
Consequent upon the decision of the State Government to reorganise the Higher Judicial Service of the State of Madhya Pradesh in accordance with the advice of the High Court of Madhya Pradesh 101 posts Of the cadre of Additional District & Sessions Judges came to be abolished and the incumbents of those posts were to be absorbed as District & Sessions Judges as per Government Memorandum dated February 24, 1981.
In the . issue of the said Memorandum the High Court of Madhya Pradesh decided to screen the officers in the cadre of Additional District & Sessions Judges for the purpose of making recommendation to the State Government about the promotion of selected officers to the cadre of District & Sessions Judges.
For this purpose, Full Court Meetings of the Madhya Pradesh High Court were held on February 27 and 28, 1981 and March 1, 1981.
The case of the appellant was also considered in that connection It is stated that at those meetings, the High Court first resolved to scrutinise the cases of all the judicial officers who were to attain the age of 55 years in the year, 1981.
In the course of such scrutiny the High Court decided on February 27, 1981 to retire the appellant compulsorily on his attaining the age of SS years under Rule 56(3) of the Fundamental Rules.
On March l, 1981 it decided not to recommend him for promotion to the cadre of District & Sessions Judges.
Accordingly, the State Government was addressed by the High Court to retire the appellant compulsorily.
The appellant thereafter continued as an Additional District & Sessions Judge until he was served with the order of compulsory retirement dated August 28, 1981.
Aggrieved by that order, the appellant filed a writ petition before the High Court.
The petition was dismissed by a Division Bench of the High Court on July 29, 1982.
This appeal is preferred by special leave against the judgment of the High Court, Clause (a) of the Fundamental Rule 56(3) as amended in 1976 which governs the case of the appellant reads thus: "F.R.56(3)(a) A Government servant may, in the public interest, be retired at any time after he attains the age of fifty five years without assigning any reason by giving him a notice in writing 469 It is contended that the order of compulsory retirement is unsustainable on various grounds and the principal ground urged is that the High Court had made the recommendation to retire the, appellant compulsorily without applying its mind to the case as required by law that it was a decision based on collateral considerations and that it was arbitrary.
It is now firmly settled that the power to retire a Government servant compulsorily in public interest in terms of a service rule is absolute provided the authority concerned forms an opinion bona fide 'that it is necessary to pass such an order in public interest.
It is equally well settled that if such decision is based on collateral grounds or if the decision, is arbitrary, it is liable to be interfered with by courts.
(See Union of India vs Col. J.N. Sinha & Anr).
We have also gone through the following decisions, namely, Union of India vs M.E. Reddy & Anr., Swami Saran Saksena vs State of U.P., Baldev Raj Chadha vs Union of India of, Brij Bihari Lal Agawral vs High Court of Madhya Pradesh & Ors., and D. Ramaswami vs State of Tamil Nadu which have a bearing on the question before us.
We shall now proceed to deal with the facts, of the case in the light of the principles enunciated in the above decisions.
In Para 10 of the counter affidavit of Shri A.K. Pandey, Additional Registrar of the High Court of Madhya Pradesh filed before this Court, it is stated as follows .
"It is not disputed that Full Court Meeting was held on 27th/28th February, as well as Ist March, 1981 to consider the cases of Additional District & Sessions Judges for promotion in the Higher Judicial Service.
It is also not disputed that the petitioner stood at serial No. 10 in the seniority list of Additional District Sessions Judges, It is also not disputed that he was confirmed as Additional District & Sessions judge in August, 1976.
The personal confidential record of the petitioner is placed before this Hon 'ble Court and (it) speaks for itself (Annexure R XI to XXXVIII).
470 It is wrong to say that any extraneous consideration operated in the Full Court Meeting against the petitioner and it is wrong to say that the resolutions in the Court Meeting were unjust, arbitrary or mala fide.
As already pointed out, the decision was taken in Full Court Meeting after consideration of the entire record of the petitioner, The decision to retire the petitioner under Fundamental Rule 56(3) was after due consideration of the entire record of the petitioner.
(Confidential entries are Annexures R XT to XXXVIII).
" On going through the said counter affidavit we are satisfied that apart from the confidential records, nothing else appears to have been relied on by the High Court to reach the decision that the appellant should be compulsorily retired.
We shall now proceed to Examine the confidential rolls maintained in respect or the appellant.
The Confidential Reports in respect of the appellant are placed before us.
lt is stated by the Registrar of the High Court in Para 13 of the counter affidavit that the appellants performance for 28 years was taken into consideration for screening under Fundamental Rule 56(3), The High Court has relied on some adverse remarks relating to 1959 60 or thereabouts, lt is true that in the early part of his career, the entries made do not appear to be quite satisfactory.
They are of varied kinds.
Some are good, some are not good and some are of a mixed kind.
But being reports relating to a remote period, they are not quite relevant for the purpose of determining whether he should be retired compulsorily or not in the year ]981, as it would be an act bordering on perversity to dig out old files to find out some material to make an order against an officer.
We therefore, confined our scrutiny to the reports made in respect of the appellant for about ten years prior to the date on which action was taken against him to retire him compulsorily.
We find that all of them except for 1972 73 and 1973 74 are good and quite satisfactory.
Even in 1972 73 and 1973 74 it is stated that there was nothing to doubt his integrity and that he was punctual in attending it to his work.
It may be noted, that the appellant was promoted as an Additional District & Sessions Judge on January 8, 1974 and was also confirmed with effect from November 25, 1974 by an order passed in 1976.
Any adverse report in respect of an earlier period unless it had some connection with any event which took place subsequently cannot, therefore, reasonably form a basis for forming an opinion about the work of the appellant.
471 We give below a few relevant extracts from the Confidential Reports for the period subsequent to March 31, ]974 .
Year : 1975 On confidential enquiries from the members of the Bar and from other sources nothing was found against him in respect of his integrity.
During surprise check he was found on the board in time.
Enquiries from other sources also disclosed that he usually comes in time and does not rise early and engages himself in judicial work.
This impression was gathered from judicial diary also.
After scrutiny of the cases, the following impression was gathered.
Knowledge about rules and orders, law and procedure is adequate but the number of the interlocutory application is sometimes not entered in the margin of the connected order sheet in red ink.
Judgments are good with proper discussion of evidence.
Interlocutory matters are not kept unduly pending for long time.
Rules regarding pleadings, and evidence etc.
are followed.
Punishments were adequate.
Examination of accused is proper.
Charges framed are proper.
Record is legible Control and supervision over the staff is satisfactory.
Judicial diary calls for no particular comments.
His relations with the Bar are cordial, with no complaints of any misbehavior with any litigants His average disposal during the period in question was of very good category.
There is nothing else to comment in particular.
Year : 1976 Knowledge of law and judicial Good capacity: Remarks about his promptness in Promptness satisfactory the disposal of cases: Remarks about reputation of integ Nothing was found against rity and impartiality: his integrity or impartiality.
General Remarks: He was mostly punctual and 472 did not rise early.
Judgments were proper and contained the required discussion of evidence Charges and examination of accused and issues were proper.
Promptness in framing of issues was marked in recent months.
Control and super vision over the staff was satisfactory.
Settling dates should not normally be of more than two weeks as was notice in certain cases.
Interlocutory matters were generally not kept unduly pending.
Net Result: Good Year 1976 77 Knowledge of Law and Judicial Satisfactory capacity: Remarks about his promptness in Generally prompt the disposal of cases: Percentage of average monthly 148.
1/2,% disposal Behaviour towards members of the Cordial Bar and Public: General Remarks: Satisfactorily managing heavy and exclusive civil file.
Mostly punctual.
Net Result: Good Year 1977 78 Knowledge of Law and Judicial Good capacity: Entry against almost all the 473 columns in the Report Good General Remark : Has good grasp of facts and law.
Judgments in proper form and well written.
Net Results Good Year 1979 80 (a) Shri Shrivastava begins his judicial work punctually at 11.00 A.M. and works throughout the Court hours.
So far, it appears that he has arranged his Cause List judiciously fixing civil work for the day.
This Judge understands that there can be no subsequent pleadings except by way of amendment of pleadings.
In other words, he understands the purport of order 8 rule 9 and order 6 rule 7 of the Civil Procedure Code.
He also understands what is pleading i e. Order 6 rule 1 of the Civil Procedure Code as compared with oral statement.
He so far appears to be equally conversant with order 17 rule I of the Civil Procedure Code i.e. adjournment is only granted for sufficient cause.
He does No. find any difficulty in applying law relating to pleadings and interlocutory matters.
So far, his procedure conforms to rules or pleadings, filing of documents, framing of issues and recording of evidence.
(b) So far, on the criminal side, he frames charges with care, records evidence with such care and prepares examination of accused with equal care.
(c) So far, he makes a neat and legible record.
He generally supervises the work of ministerial staff.
(d) His judgments, both on civil and criminal, so far, appear to be well written.
He is prompt in his disposals including doing work therein.
His work, as a whole, so far, has been found to be of high quality.
He also takes up civil work.
His relations with the Bar, so far, appear to be cordial.
(e) The above remarks are subject to the D.O. No. 462/C. Rs/1979 Jabalpur dated 6.3.80 of the High Court.
474 (Note: The Memo.
sent to the appellant in March, 1980 Only informed him of two remarks (1) that the did not dispose of Sessions trials quickly and (2) that he did not follow the amended provisions under order 39 rule 3 of the Civil Procedure Code.
The Memo.
also disclosed that the appellant did not write judgments in civil appeals according to the pattern prescribed; that Sessions trials were not conducted quickly and that (he) granted unduly long adjournments of about a month or so for examination of accused and defence witnesses.
The appellant sent a prompt reply to it oil March 28, 1980 refuting the correctness of the above remarks.
We have gone through the said reply.
On going through the facts mentioned therein, we feel that the remarks against him appear to be totally uncharitable.
It shows that the appellant has disposed of more number of cases than what ordinarily could be disposed of during the relevant period.
We are not informed of what action was taken on his prayer for expunging the said remarks).
Year: 1980 81 His out turn during the year was about 200 percent.
The quality of work may be classed as good. 'B ' category.
No specific complaints were received against him about his behaviour or integrity.
" The above reports no doubt speak for themselves as stated in the counter affidavit of the additional Registrar.
But they all speak in favour of the appellant and not against him.
A persual of these reports shows that there was nothing against the appellant which necessitated the action which was taken against him.
In the state of the above record it was impossible to take the view that the appellant was liable to be compulsorily retired, unless there was any other circumstance which was adverse to him.
We have found it necessary to incorporate in this judgment the relevant confidential remarks in great detail only to show that the action of the High Court was not called for.
We may state here that the learned counsel for the High Court very fairly stated that there was no other circumstance against the appellant during the period subsequent to 1971 which would support the order of compulsory retirement.
From what has been stated we find that the decision taken by the High Court in respect of the appellant is arbitrary as it was mainly based on the entries that were made about 20 years before the date on which the decision was 475 taken Dependence on such stale entries cannot be placed for retiring a person compulsorily, particularly when the officer concerned has been promoted subsequent to such entries, as held by this Court in D. Ramaswami 's case (supra).
In that case one of us (Chinnappa Reddy, J.) observed thus at pages 79 80: "In the face of the promotion of the appellant just a few months earlier and nothing even mildly suggestive of ineptitude or inefficiency thereafter, it is impossible to sustain the order of the Government retiring the appellant from service.
The learned Counsel for the State of Tamil Nadu argued that the Government was entitled to take into consideration the entire history of the appellant including that part of it which was prior to his promotion.
We do not say that the previous history of a Government servant should be completely ignored, once he is promoted.
Sometimes past events may help to assess present conduct.
But when there is nothing in the present conduct casting any doubt on the wisdom of the promotion, we see no justification for needless digging into the past." In the result the judgment of the High Court is reversed and the resolution of the High Court recommending to the Government that the appellant should be compulsorily retired and the impugned order passed thereon under Fundamental Rule 56(3) are quashed.
The resolution of the High Court that the appellant was not fit for promotion to the cadre of District & Sessions Judges is also quashed.
The High Court should now consider in the light of this decision whether the appellant was entitled to be promoted as a District & Sessions Judge as on the date on which his immediate junior was promoted and make appropriate recommendation to the State Government.
The appellant is entitled to all consequential financial and other benefits as if the order of compulsory retirement had not been passed.
The appeal is accordingly allowed with costs.
N.V.K. Appeal allowed.

summary/full:
The appellant was a State Judicial Service officer in the grade of Additional District & Sessions Judge.
Consequent upon the decision of the State Government to reorganise the Higher Judicial Service it was decided that a number of posts of the cadre of Additional District & Sessions Judges be abolished and the incumbents of those posts be absorbed as District & Sessions Judges.
The High Court at one of the High Court meetings held to screen the officers in the cadre of Additional District & Sessions Judges, decided to retire the appellant compulsorily on his at tanning the age of SS years under Rule 56(3)(a) of the Fundamental Rules.
It was also decided not to recommend him for promotion to the cadre of District and Sessions Judges.
The appellant was served with an order of compulsory retirement dated August 28, 1981.
The Division Bench of the High Court dismissed the appellant 's writ petition impugning his compulsory retirement.
In the appeal to this Court, it was contended that the High Court had made the recommendation to retire the appellant compulsorily without applying its mind and that the decision was based on collateral considerations and was arbitrary.
On behalf of the High Court it was contended that the personal confidential records of the appellant were considered by the Full Court Meeting and the decision to retire the appellant under Fundamental Rule 56(3)(a) was taken after due consideration of the entire record.
Allowing the appeal: ^ HELD: 1.
It would be an act bordering on perversity to dig out old files to find out some material to make an order against an officer.
Dependence on entries about 20 years before the date on which the decision of compulsory retirement was taken cannot placed for retiring a person compulsorily, particularly when such person concerned has been promoted subsequent to such entries.
[474H; 475A] D.Ramaswami vs State of Tamil Nadu, [19811 2 S.C.R. 75 referred to. 2.
The power to retire a Government servant compulsorily in public interest in terms of a service rule is absolute provided the authority concerned forms 467 an opinion bona fide that it was necessary to pass such an order in public interest.
But if such decision was based on collateral grounds or if the decision was arbitrary, it is liable to be interfered with by Courts.
[469 B C] Union of India vs Col. J.N. Sinha Anr., [1971] 1 S.C.R. 791; Union of India vs M.E. Reddy & Anr., ; ; Swami Saran Saksena vs State of U.P., ; ; Baldev Raj Chadha Y. Union of India & ors ; ; and Brij Bihari Lal Agarwal vs High Court of Madhya Pradesh & Ors. ; referred to.
In the instant case the High Court relied on some adverse remarks relating to 1959 60 or thereabout.
It was true that in the early part of the appellant 's career the entries did not appear to be quite satisfactory.
Some were and some were not good and some were of a mixed kind.
But being reports relating to a remote period, they are not quite relevant or the purpose of determining whether he should by retired compulsorily or not in 1981.
The scrutiny should have been confined to the reports for about ten years prior to the date on which action was proposed to be taken.
All the reports except for 1972 73 and 1973 74 were good and quite satisfactory.
Even in the reports of the said years there was nothing to doubt his integrity.
He was punctual in attending to his work.
The reports for the years 1976 77 to 1980 81 speak in favour of the appellant and not against him.
A perusal of the said reports showed that there was nothing against him.
In these circumstances it was impossible to take the view that the appellant was liable to be compulsorily retired.
[470 E H] 3.
The resolution of the High Court recommending to the Government that the appellant should be compulsorily retired and the impugned order passed under Fundamental Rule 56(3)(a) are quashed.
The resolution of the High Court that the appellant was not fit for promotion to the cadre of District and Sessions Judges is also quashed.
[474 E]