1 APHC010572342018 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3508] FRIDAY,THE TWENTY FIRST DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM WRIT PETITION NO: 27144/2018 Between: Kola Keshav Reddy ...PETITIONER AND The Depot Manager APSRTC, Macherla Depot and Others ...RESPONDENT(S) Counsel for the Petitioner: 1. M PITCHAIAH Counsel for the Respondent(S): 1. GP FOR LABOUR (AP) 2. S LAKSHMINARAYANA REDDY 3. VENKATESWARLU SANISETTY The Court made the following Order: (per Hon’ble Sri Justice R. Raghunandan Rao) The petitioner, who was an employee of the Andhra Pradesh State Road Transport Corporation, was removed from service by the Depot Manager, Macherla Depot, Guntur District, on 04.08.1999. The petitioner challenged his 2 removal, before the Labour Court, Guntur, by way of I.D.No.187 of 2004. The Labour Court, Guntur, passed an award dated 07.06.2007, setting aside the removal of the petitioner from service with a direction to the Depot Manager and Regional Manager of APSRTC to reinstate the petitioner in service with continuity of service and other consequential benefits except back wages. 2. The petitioner, filed E.P.No.2 of 2014, before the Labour Court, Guntur, for implementation of the award, dated 07.06.2007. This Execution Petition was referred to the Lok Adalat which passed an award, dated 12.12.2015, with a direction to the respondent-authorities to reinstate the petitioner in service with the intervening period from the date of reinstatement order till the date of reporting for duty to be treated as “not on duty” for all purposes. Pursuant to this award, the petitioner was reinstated in APSRTC and he has been working since then. 3. The petitioner, being aggrieved by the award of the Lok-Adalat, dated 12.12.2015, has filed the present writ petition on the ground that non grant of back wages and waiver of wages from instatement could not have been passed by the Lok-Adalat. The petitioner also took the ground that Section 25HH of the Industrial Disputes Act specifically mandates that the employee would be entitled to wages as a matter of right, from the date on which the award has come into force and the order of the Lok-Adalat, which has taken away such a right of the petitioner is hit by the provisions of the Indian Contract Act and more particularly Section 23 of the said Act. 3 4. The petitioner further contended that he had to agree to the said award, on account of final stringency arising out of his need to take care of his three children. He would submit that the consent given by him is not a free consent and consequently the award of the Lok-Adalat should be set aside. He also seeks relief of a declaration that the award dated 07.06.2007 in I.D.No.187 of 2004, to the extent it denies back wages and interests to the petitioner should be set aside. 5. Sri M. Pitchaiah, the learned Senior Counsel appearing for the petitioner would contend that the petitioner, on account of his financial constraints, was forced to agree to the proposal of the Corporation authorities and such consent would not bind the petitioner. He relies upon the Judgment of the Hon’ble High Court of Delhi in M/s. Simplex Concrete Piles (India) Limited vs. Union of India in CS (OS) NO.614A/2002, dated 23.02.2020, the Judgment of the Hon’ble Supreme Court in the case of M/s.Oswal Agro Furane Ltd. & Another vs. Oswal Agro Finance Workers Union & Ors1, Bennett Coleman and Co. (P) Ltd., vs Punya Priya Das Gupta 2 , Basheshar Nath vs. Commissioner of Income Tax, Delhi and Rajasthan and another3and the Judgment of a learned Single Judge of the erstwhile High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in W.P.No.3031 of 2008. 1 AIR 2005 SC 1555 2 1969(2)SCC 1 3 AIR 1959SCC 149 4 6. Sri Venkateswarlu Sanisetty, learned counsel for the respondents would point out that the order of the Labour Court was passed on 07.06.2007. The petitioner did not choose to challenge this award and only filed E.P.No.2 of 2014 for implementation of the award. Thereafter, the Execution Petition itself came to be closed on 12.12.2017. The present writ petition came to be filed in August, 2018. The petitioner having accepted the award dated 07.06.2007 and having filed a petition for implementation of the said award cannot seek to challenge the said award eleven years after the passing of the award. The prayer of the petitioner, to the extent of challenge to the order dated 07.06.2007, is hit by latches and there is no explanation as to why the petitioner had not challenged the said award and had filed for implementation of the award. 7. The learned counsel for the respondents would also contend that the petitioner, having accepted a compromise cannot now seek to resile from the said compromise. It is further submitted that the compromise is at best a waiver of rights available to the petitioner and the same is permissible, in view of the judgment of the Hon’ble Supreme Court in the case of Basheshar Nath vs. Commissioner of Income Tax, Delhi and Rajasthan and another. 8. In the case of Basheshar Nath vs. Commissioner of Income Tax, Delhi and Rajasthan and another, the wealth tax assessment of the petitioner in that case had been taken up. The said assessee had opted to 5 settle the matter, under Section 8-A Taxation of Income (Investigation Commissioner) Act, 1947. The proposal of the assessee was accepted and the assessee was permitted to pay the amount agreed upon. However, certain provisions of this Act came to be set aside in other proceedings, as a result of which the assessee contended that the settlement made under Section 8-A could not be enforced and he was entitled for recovery of the amount which he had already paid under the settlements and for release of the properties which were attached for the purpose of the recovery of the unpaid settlement amount. In the course of this case, one of the questions are came up before the Hon’ble Supreme Court, was whether a person can waive breach of his rights, including breach of fundamental rights. The Hon’ble Supreme Court, had effectively held that there could be waiver of rights but fundamental rights cannot be waived (para 53, 54 to 67). 9. In Bennett Coleman and Co. (P) Ltd., vs Punya Priya Das Gupta an employee had tendered his resignation which was initially rejected. Subsequently, it was accepted but the employee was not given compensation for leave due to him and such benefits on the ground that he has resigned without giving notice. Thereafter, the employee had signed a document waiving all his rights for leave salary, stating that the amounts paid to him, at that stage were in full and final settlement of the claims of the employee. The question of whether such waiver would be binding on the employee was considered by the Hon’ble Supreme Court. It was held that estoppel would 6 only be a rule of evidence and on the facts of the case had rejected the claim of estoppel set out by the employer. In Workmen of Subong Tea Estate, rep.by the Indian Tea Employees Union vs. Outgoing Management of Subong Tea Estate and another4 some employees had been retrenched after accepting retrenchment compensation. Subsequently, they challenged the retrenchment proceedings. The employer contended that the employees having accepted retrenchment compensation cannot be permitted to question the validity of retrenchment. This plea, of the employer, was rejected by the Hon’ble Supreme Court on the ground that such technical pleas are not generally entertained in industrial adjudication. In Management of Oasis School Vs. Labour Court and V. Mukundan5 the question of whether the conditions set out in Section 25F, could be waived by way of an agreement was considered. The learned Single Judge of the erstwhile High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh had held the initial invalidity to meet the requirements of Section 25F, cannot be cured by a specific offer or settlement between the employer and the workmen. 10. In M/s.Oswal Agro Furane Ltd. & Another vs. Oswal Agro Finance Workers Union & Ors., the question of whether the settlement arrived at between the employer and workmen could prevail the statutory requirement as contained in Section 25-N and 25-O of the Industrial Disputes 4 AIR 1967 SC 420 5 1990(2) ALT 525 7 Act came up for consideration. The Hon’ble Supreme Court had held that such a settlement would not waive the requirements under Section 25-N to 25-O of the Industrial Disputes Act. 11. In M/s. Simplex Concrete Piles (India) Limited vs. Union of India, a learned Single Judge of the Hon’ble High Court of Delhi considered the question of whether contractual clauses can disentitle a person from claiming damages which a person is otherwise entitled to under law. The learned Single Judge held that contractual clauses disentitle the person from claiming such damages would be violative of Section 23 of Indian Contract Act and consequently such clauses would not be enforceable. 12. A learned Single Judge of the erstwhile High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, in W.P.No.3031 of 2008 was considering the case of a driver who met with an accident and was declared unfit to continue in the post of a driver and was denied alternate employment in accordance with Section 47 of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995 the denial of this right was set out on account of the offer of the corporation to make certain payments instead of offering alternate employment. The learned Single Judge after considering Section 47 of the aforesaid Act and various Judgments, had held that there was mandatory obligation on APSRTC to give the benefits under Section 47 of the aforesaid 8 Act and any attempt to obtain waiver of such vested rights except in exceptional circumstances would have to be invalid. 13. The petitioner had filed E.P.No.2 of 2014 for implementation of this award. The matter was settled before the Lok-Adalat and an order, in terms of the settlement was passed in the following terms: “1) The DHr/petitioner has raised the Dispute for Execution of Award in I.D.No.40/2009 to determine the due arrears mentioned in the Calculation memo filed along with petition. Both parties filed joint Memo to resolve the Dispute before the Lok Adalat. 2) On hearing both sides, the JDr agreed to take the petitioner/DHr for duty as per the reinstatement Order No.L1/372(1)/04-RM(G), dt.23-10-2007 and the intervening period from the date of reinstatement order and the date of reporting for duty by the petitioner is treated as not on duty for all purposes subject to production of valid driving license. The order portion read over to the DHr in Telugu/Mother Tongue and accepted by the DHr/Petitioner and their Counsel as well as JDr’s/Respondent. 3) Hence, the order is passed accordingly directing that the Respondent/Management to implement the order within 30 days (thirty days) form the date of receipt of this order. 14. By virtue of this order, the petitioner was denied wages from 23.10.2007 till he reported for duty by treating the said period as “Not on duty period”. Section 25HH of the Industrial Disputes Act reads as follows: Section 25HH. Condition of re-instatement in service by an award of Labour Court or Tribunal.__ where a workman is reinstated in service by an award of a Labour Court or Tribunal, the workman shall be deemed to be in service from the date specified in the award whether or not the workman was earlier reinstated by the employer and the wages shall be recovered in the manner provided in section 33C”. 9 15. The language of this provision requires payment of wages to workmen from the date of reinstatement in service, contained in the award. However, Section 25HH, falls in part (II) of the Industrial Disputes Act, which applies to cases of layoff and retrenchment and not to cases of removal from service. In such circumstances, this provision is not applicable to the present case. 16. The Labour Court, had held that the petitioner, who was in possession of a heavy vehicle driving licence would have been eking out his livelihood by driving private vehicles and was consequently not entitled to back wages. This would mean that the petitioner could not be entitled to any back wages till he rejoined the service of the Corporation. In such circumstances, the condition, in the award of the Lok Adalat, that the petitioner would not be treated to be on duty from the date of reinstatement order to the date of reporting for duty, is not a violation of the orders of the Labour Court itself. 17. As far as the order of the Labour Court is concerned, the petitioner, had not chosen to challenge the order of the Labour Court for eleven years. On the other hand, the petitioner appears to have accepted the award of the Labour Court and was only looking for implementation of the order of the Labour Court. In such circumstances, the petitioner cannot be 10 permitted to challenge the order of the Labour Court after eleven years. Accordingly, the challenge to the award is rejected. 18. For all the aforesaid reasons, this Writ Petition is dismissed. There shall be no order as to costs. As a sequel, miscellaneous applications, if any, shall stand closed. _______________________ R RAGHUNANDAN RAO, J ______________________________ MAHESWARA RAO KUNCHEAM, J RJS 11 THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO AND THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM WRIT PETITION No.27144 of 2018 (per Hon’ble Sri Justice R Raghunandan Rao) 21.03.2025 RJS