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TMI Blog2012 (12) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... l Disputes Act before the Tribunal the petitioner denied all the charges leveled against him and challenged the order of dismissal. He prayed for back wages and consequential benefits for the period of the alleged forced unemployment. The respondent no. 2 in turn denied the allegations made by the petitioner. The Tribunal on the evidence held that it was difficult to hold unhesitatingly that the guilt of the petitioner had been clearly established on the basis of the materials on record on the standard of preponderance of probability. The Tribunal held that in this case the question of reinstatement does not arise as the petitioner had crossed the age of retirement on superannuation and declined to grant him back wages. However, the Tribunal considering the relevant aspects held that it would be just and equitable if the workman concerned got 50 per cent. of the wages/ salary from the date of dismissal till the date of retirement on superannuation towards compensation along with all due retirement benefits which he was entitled to get as per rule, if the same had not been already paid. The respondent no. 2 herein was directed to make the payment within one month form the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Bhau Ram -Vs. Baij Nath Singh, reported in (1962) 1 SCR 358 where it was held that a statutory right of appeal cannot be presumed to have come to an end because the appellant has in the meantime abided by or taken advantage of something done by the opponent under a decree. The Supreme Court held that the appellant's act in withdrawing the pre-emption price cannot preclude him from continuing his appeal and the preliminary objection was overruled. In continuation of his further submission that accepting the three cheques from the respondent no. 2 is not fatal to the writ petition the petitioner has also relied on the case of Prashant Ramchandra Deshpande - Vs.- Maruti Balaram Haibatti, reported in 1995 Supp (2) SCC 539. In that case the respondent relying on the case of R. N. Gosain -Vs.- Yashpal Dhir, reported in (1992)4 SCC 683, argued that the appellant having given an undertaking before the High Court that he would vacate the premises within six months was precluded from approaching the Supreme Court under Article 136 of the Constitution of India. The Division Bench did not agree with the ratio of R. N. Gosain's case and held that Article 136 of the Constitution of India is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccepted those cheques without prejudice to his rights and contentions. In the letter dated January 25, 2012 the petitioner mentioned that the cheques had been accepted without prejudice to his rights and contentions but that letter was not delivered to the respondent no. 2 before January 27, 2012. Mr. Dhar submits that after he had received those amounts he had written a letter but it could not be served before January 27, 2012 as January 26, 2012 was a public holiday. But irrespective of the date of the delivery of any subsequent letter to the office of the respondent no. 2, the petitioner having not indicated on the receipts themselves that he had accepted the amounts without prejudice forfeited his right to ask for more amount from the respondent no. 2. The three receipts annexed to the writ petition as parts of Annexure P-4, however, do not indicate that the petitioner anywhere mentioned "without prejudice" on those three receipts. Mr. Dhar submitted that on the originals this was mentioned. This was a surprising submission as the copies of the receipts had been made after the revenue stamps were affixed on them and if there had been any such endorsement on the original recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted it "without prejudice". On the contrary he recorded his fullest satisfaction that the payment was made in full and final settlement of the amount. Analogy may be drawn to the provisions contained in Section 18 to the Land Acquisition Act, 1894. Under Section 18 a person interested, if he has not accepted the Award may require the Collector to make a reference to the civil court for determination of his compensation. A question quite frequently arises for determination is whether a person having accepted the compensation can still require a Collector to make such reference. In the case of Ashwani Kumar Dhingra -Vs.- State of Punjab, reported in AIR 1992 SC 974 the Supreme Court had held that the person interested in order to enable him to seek the reference can do so only if he does not accept the Award. Once the compensation awarded in pursuance of the Award is accepted without protest the person concerned may lose his right to a reference for various matters mentioned in Section 18 of the Land Acquisition Act. The judgements cited by Mr. Dhar can hardly be applied to the facts of the present case. The case of Bhau Ram (Supra) is distinguishable on finer points. In that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of things and accordingly is now estopped from altering his stand to the detriment of the respondents. Moreover, the effect of accepting the amount in full and final settlement of his dues clearly amounts to an act of waiver on the part of the petitioner. It is now settled that waiver is a voluntary relinquishment of a known right. That the petitioner had a right to challenge the Award must have been known to him and nobody had compelled him to accept the payment. On the other hand he himself had written to them in the first instance. Thus, he had relinquished his right voluntarily and thereby induced the respondents to alter their stand to challenge the Award to their detriment. In substance the principle on which the writ petitioner is estopped from challenging the Award is based on the doctrine of election. This doctrine applies to cases when a man as against another has two alternative but mutually exclusive courses to resort to and he is to make an election between the two. If he by his conduct induces the other man to believe that he is pursuing a certain course leaving aside the other and as a result of it that induced other man alters his course of action he is not pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accept the trial Judge's Award of damages and abandoned his right of appeal seeking specific performance when he demanded and accepted the deposit of damages passed by the trial Court. It was further held that since the vendor had altered his position to his detriment by raising and paying over the damages when he would not have been required to do so if the purchaser had sought specific performance on appeal, the purchaser was estopped from seeking specific performance on appeal. Lord Templeman delivering the majority judgement held that "the vendor was only liable to pay damages or to perform the contract and was not bound to suffer the infliction of both remedies, even with the hope of recovering from the effect of one of them in due course, subject to any order the court might care to make about costs or delay. The vendor having been obliged by the purchaser to comply with the order to pay damages was harassed by the order for specific performance. Once the damages had been raised and paid and accepted the purchaser was estopped by election from appealing against the order for the payment of those damages." This is all that the law of approbation and reprobation in essence is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a contract. In the case of Mithai Lal Passi -Vs.- CESC Limited and others, reported in 2003(3) CHN 357 this Court had occasion to consider whether an employee of the CESC Limited could invoke the writ jurisdiction of the High Court being dissatisfied with the order of termination of service. The Court unequivocally held that the CESC authority, the employer, could not be said to be a 'State' within the meaning of Article 12 of the Constitution of India for the purpose of challenging an order of termination of service of its employees. Therefore, the petitioner's prayer for a Mandamus is clearly not maintainable against those respondents. The petitioner has also prayed for setting aside of the Award after taking the benefit of it. A question was put by this Court whether the petitioner was willing to refund the amount to the respondent no. 2. Mr. Dhar, the learned counsel for the respondents on instruction submitted that it was no longer possible. Such being the position the petitioner can never now ask for an order setting aside of the Award which has been satisfied by the payment received by him. Thus, there is sufficient merit in the preliminary objection by the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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