JUDGMENT
D.K. Seth, J.
The question:
1. In the present case a dispute was raised between the workmen and the employer. Ultimately, the impugned award was passed on July 13, 1998 on the basis of an agreement between the parties incorporating the terms thereof. From the award, it was pointed out that the counsel for the employer had no objection regarding the passing of the award in terms of the conditions contained in Annexure “B” (Ex. W/2) to the application for compromise. The award had incorporated the terms of compromise as part of the award (Annexure “A”) after having examined and found the said terms and conditions as legal and fair. It is now being challenged on the ground that this award is not an award in the eye of law, since it has not adjudicated the alleged dispute. In the alleged dispute, there was no relationship of employer and employee and as such, there was no industrial dispute within the meaning of Section 2(k) of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’) and as such, there could not be any valid reference at all.
Submission on behalf of the employer:
2. According to Mr. Bimal Chatterjee, unless there is a determination of the dispute award by suggestion of parties is not an award. He relied on the decision reported in Sital v. Central Government Industrial Tribunal, 1969-II-LLJ-215 (MP-DB), Andhra Handloom Weavers’ Co-operative Society v. State of A.P., 1963-II-LLJ-488 (AP), All India Insurance Employees’ Union v. LIC Higher Grade Assistant’s Association, 1973-II-LLJ-288 (Mad-DB), Workmen employed in 32 Textile Mills v. Management of Dhanalakshmi, , Maharani Mill Kamdar Union v. N.L. Vyas, 1959-II-LLJ-172 (Bom-DB), Cox & Kings (Agents) Ltd. v. Their Workmen and Ors., in support of his contention. He had also contended that unless the dispute is resolved, there cannot be any award. He had further contended that admittedly the workmen were alleged to be the canteen staff, who were not the workers of the bank and as such, there could not be a dispute within the meaning of Section 2(k) of the Act and that the alleged workmen were not workmen within the meaning of Section 2(s) of the Act and as such, there could not be any reference within the meaning of Section 10(4) of the said Act. Therefore, the Industrial Tribunal could not have assumed jurisdiction. He contended further that since these facts are apparent on the face of the record, it is not necessary to bring anything on record and as such, the alleged award should be set aside.
Mr. Chatterjee has also relied on some other decisions to support the character of canteen workers when they could be treated as workmen. According to him, there is no such material to establish that these canteen workers were workmen of the Bank.
Submission of behalf of the workmen:
3. Mr. P.S. Sengupta, learned counsel for the workmen on the other hand, pointed out that a writ petition can be maintained only if a person is aggrieved. Unless it is shown that the bank is aggrieved by the Award, it cannot maintain this writ petition. He referred to various annexures annexed to the writ petition to show that the bank was never aggrieved with the award; on the other hand, the bank had, accepted the award after the award was passed and had been agreeing with the workmen with the terms, on the basis whereof the award was passed, even before the award was passed. Therefore, the writ petition cannot be, maintained. Since there was a final adjudication and determination, therefore, the award is very much binding and the decisions cited by Mr. Chatterjee are all distinguishable and do not apply in the facts and circumstances of this case. An award can be based on compromise, provided it is determined by the Tribunal that it is legal and fair and that the terms of the compromise have been incorporated in the award itself. He had referred to the definition of the word, “award” under Section 2(b) of the Act and pointed out that as soon as there is a final determination of the dispute, it becomes an award. According to him, in the present case, the dispute has since been resolved between parties and, therefore, this was an award. He then contended that the question, that there was no relationship within the meaning of Section 2(s) of the Act and that the dispute was not an Industrial dispute, cannot be gone into before this Court at this stage, unless this question was raised before the Tribunal. Unless such a question is raised, the Tribunal suo motu cannot enter into such question. Once the workmen without raising any objection had accepted the reference, it cannot raise this question subsequently. He had also relied on certain decisions, to which reference shall be made at the appropriate stage. In such circumstances, he prayed that the writ petition should be dismissed.
Reply:
4. In reply, Mr. Chatterjee sought to distinguish the decisions cited by Mr. Sengupta, which will be referred to at appropriate stage.
5. I have heard the respective counsel for the parties at length.
The Award:
6. As the facts reveal, it appears that in terms of the agreement, the award was passed on July 13, 1998, to which the learned counsel for the Bank did not raise any objection, and the terms and conditions were made part of the award, after it was held to be legal and fair. There are certain reasons given in the award in order to arrive at a conclusion as to whether the terms are legal and fair. In the award itself, it is pointed out that the award was passed in terms of Annexure “B” (Ex. W/2) and the same was made part of the award as Annexure “A.” The terms contained therein virtually show that it has resolved the dispute finally. In the reference, the Tribunal was called upon to adjudicate as to “whether the demand of All Bank Canteen Employees Union (Calcutta) that canteen staff, employed by the canteen at the premises of Indian Bank, should be given regular appointment in the services of the Bank with minimum salary payable to regular employees of the Bank, is justified ? If not, to what reliefs are the workmen concerned entitled.?” From the terms it appears that the bank had agreed to prepare a panel and keep the names of the canteen workers in the said panel, from which those persons would be allowed to be absorbed, as and when vacancies would be arising. There were certain other conditions, through which the workmen had given up some other right, which shows that there was a reciprocal condition, in which the bank had enriched itself upon certain conditions, while the employees had agreed to certain conditions after giving up some of their claims.
Whether an order by compromise is an award:
7. The bone of contention now before the Court, as it appears from the rival contentions, is as to whether the above award is an award within the meaning of Section 2(b) of the Industrial Disputes Act (ID Act) enforceable in law.
8. An award as defined in Section 2(b) is a determination, final or interim, of any industrial dispute or any question relating thereto, by the Labour Court, the Industrial Tribunal or the National Tribunal. It also includes an arbitration award made under Section 10A. In order to ascertain whether an order passed by the Labour Court or the. Tribunal is an award, the examination is to be directed to the test whether it is a determination of any industrial dispute or a question relating thereto. It might be interim or final. Having regard to the present case, we shall deal with the final determination of an industrial dispute.
9. Admittedly, in the present case, the award is passed on a compromise. We may, however, direct our attention whether such an order based on compromise can be called an award.
10. The definition is somewhat analogues to the definition of decree defined in Section 2(b) of the Code of Civil Procedure. It requires an Industrial dispute or any question relating thereto be determined by the adjudicator. The object of the decision in the award is to resolve the difference between the disputants, the expression determination of any dispute means an adjudication of the dispute between the parties. The determination contemplated in the definition is not a termination of the proceedings before the Tribunal by one method or other. There is a determination only when there is an adjudication of the Industrial dispute or a question relating thereto. The word ‘determination’ implies adjudication upon relevant materials by the Tribunal; it is implicit in the word determination that it should be judicial. In support, we may refer to Andhra Handloom Weavers Co-operative Society (supra), Maharani Mill Kamdar Union (supra), Cox & Kings (Agents) Ltd, (supra) and Sital (supra).
11. The word “determination” as spelt in the Shorter Oxford English Dictionary, 1959 Edition, means “A bringing, or coming to an end; ending; termination esp., in Law, a Judicial or authoritative decision or settlement”. Therefore, if it is shown that the dispute has been determined and the dispute is resolved and has come to an end, then it is very much an award. Now we shall examine how the above proposition applies in the present context.
12. The ID Act does not contain any provision akin to Order 23 Rule 3 CPC, but that does not exclude the jurisdiction of the Tribunal to adjudicate and finally resolve a dispute on the basis of compromise entered into between the parties. If the parties agree to a particular kind of settlement, in course of a proceeding pending before the Tribunal, and entered into a compromise and ask the Tribunal to pass an award in terms of such compromise, then if the Tribunal without adjudicating anything, accepts the compromise and terminates the proceeding either by dismissing the same in default or from non-prosecution or allow the reference to be withdrawn or disposes of the reference in terms of the compromise without any determination or adjudication, in such event, such a decision will not satisfy the test of definition given in Section 2(b) of ID Act. An order passed on the basis of a compromise, can be treated as an award only when the order accepting the compromise spells out that the Tribunal had considered the matter and had adjudicated and determined the question and had finally resolved the dispute, then it satisfies the test of the said definition. But what kind of determination and what kind of adjudication or determination is made, may be had from the order itself. When it is challenged and disputed, the Court has to examine the order to find out as to whether the Tribunal had applied its mind to the terms of the compromise and had entered into the adjudication or determination to find out whether the said term finally resolves the dispute and whether those terms are legal and fair. The real test is whether the Tribunal had applied its judicial mind and had come to a finding with regard to the nature of the compromise for the purpose of resolving the dispute in a manner legal and fair.
13. In State of Bihar v. D.N. Ganguly, the Apex Court had observed that “it would be very unreasonable to assume that the Industrial Tribunal would insist upon dealing with the dispute on merits even after it is informed that the dispute has been amicably settled between the parties …….. There can, therefore, be no doubt that if an industrial dispute before the Tribunal is amicably settled, the Tribunal would immediately agree to make an award in terms of the settlement between the parties.” Though, this was an obiter but yet this is really scope of the power of the Tribunal. Even when the Tribunal accepts the compromise, it adjudicates the dispute provided it does not adopt the compromise mechanically, which is to be found out from the expression used in the order itself to indicate the mind of the Tribunal as to how it had reacted when the compromise was presented before it. Similar obiter appears in Maharani Mill Kamdar Union v. M.L. Vyas, (supra) while dealing with a case of withdrawal of a dispute by observing that “the position might have been different, if the dispute had been settled on merits by private agreement and the Tribunal had been asked to make an award in terms of the agreement……….” The Madras, Madhya Pradesh, Andhra Pradesh and Patna High Courts have also taken the view that even if the parties to a dispute come to a settlement by mutual discussion outside the field of industrial adjudication, still the Tribunal cannot abdicate its duties to find out the process by which the settlement has been arrived at and weigh the pros and cons of the same, apply its mind to it and thereafter determine the dispute or question in the light of such settlement. In other words, mere mechanical adoption of a settlement without any further probe into its propriety and the means by which it was arrived at and whether the settlement really is the determination of the dispute or the question would not amount to passing the award, even though such award literally states that an award in terms of such settlement is passed. A compromise can be adopted by the Tribunal after considering whether it is a fair and just settlement of the dispute. A compromise recorded after judicial consideration by the Tribunal partakes the character of an award. We may refer to All India Insurance Employees’ Association (Mad) (supra), Sital (MP) (supra), Andhra Handloom Weavers’ Co-operative Society (AP) (supra), Workmen of Indian Cable Company Limited v. Indian Cable Company Limited, 1973 Lab IC 204 (Pat) respectively. In Workmen of Government’s Silk Weaving Factory, Mysore v. Industrial Tribunal , the Apex Court had upheld the validity of a settlement, which was adopted by the Tribunal after applying its judicial mind to it.
14. Thus, from the above discussion having regard to the facts and circumstances of the case, it appears that the Tribunal had applied its mind to the terms of compromise and had determined and/or adjudicated upon the said terms of compromise and came to a conclusion or a finding that the terms of compromise were legal and fair and had finally resolved the dispute. There was an adjudication in respect of the dispute by reason of an agreement between the parties and as such, there was a final determination of the dispute raised, which was ultimately resolved in that manner. Therefore, the same is very much an award, since it satisfies the test as discussed above.
15. Section 2(b) of the Act defines Award to mean an interim or final determination of any industrial dispute or any question relating thereto by any Labour Court or Industrial Tribunal or a National Tribunal and includes an arbitration award made under Section 10(a) of the Act. If an arbitration is accepted as an award, a compromise can very well be accepted as an award, provided it is rendered by a Labour Court or a Tribunal or a National Tribunal or by an Arbitrator, as the case may be inasmuch as, an arbitration is arbitrated by an Arbitrator, a third party, the parties do accept the same. Therefore, there can be nothing to prevent the parties themselves to arbitrate between themselves and agree to settle the terms and accept the same. A compromise is, in fact, an arbitration by the parties, who agree between themselves.
The decisions cited : How far apply:
16. Now let us examine the decisions cited by Mr. Chatterjee in order to contend that the above award is not an award.
17. The facts of the case involved in Sital (supra) are distinguishable; inasmuch as, in the said case, the dispute was purported to be settled between the employer and the union without specifying as to what was settled and how it was settled. Sital, the Badli worker had questioned the said settlement on the ground that what was the settlement arrived at in respect of him. There was nothing to show that what settlement was arrived at in respect of the grievance of Sital that was referred to for adjudication. Under these circumstances, it: was held that the decision was not an award, which is not the case here, as discussed herein before, where the dispute was finally resolved, which was not done in the case of Sital (supra).
18. In Andhra Handloom Weavers’ Co-operative Society (supra), it was a case of dismissal for default. An order which was purported to be an award on account of the default was held not to be an award, since the reference was dismissed for default without determining or adjudicating the dispute, and as such, it was not a final adjudication. Having regard to the facts of this case, the above ratio does not apply in the present case, on account of the distinguishing feature involved in this case.
19. In All India Insurance Employees’ Union (supra), the award proceeded to record that the parties had agreed to discuss the dispute through future negotiation. In such circumstances, it was held that nothing was decided. Everything was kept open, subject to negotiation. Therefore, when one of the Associations, which was kept out of the negotiation as well as the benefit, when raised the dispute, it was urged on the ground that it was adjudicated upon earlier, it was held not to be an award.
20. In the Workmen Employed in 32 Textile Mills (supra), it was held that there were two Unions. One union objected to the compromise. However, it had accepted the benefit without prejudice to its rights and contentions, after having disassociated themselves from the compromise. Therefore, it was held not to be an award, but; in fact, the test is whether the dispute is finally terminated or adjudicated upon. The view, which I have taken, finds support from the observation made in paragraph 7 of the said decision which runs as follows:
“A compromise by a few cannot, therefore, amount to a settlement of the dispute, for a compromise can only bind those who are parties to it. It is, therefore, necessary that the Industrial Tribunal should either make its own award or adopt a compromise entered into by the parties as a part of its award after considering whether it is a proper one from the point of all the workmen concerned in the dispute. For that purpose, the Tribunal should give an opportunity to all the concerned parties to show whether the compromise could be so adopted. It was not, therefore, competent for the Tribunal to have disposed of the matter, as if it were a dispute between the actual parties.”
21. In Maharani Mill Kamdar Union (supra), the issue was allowed to be withdrawn for reference to private arbitration. In such circumstances, it was held that the dispute was not determined; on the other hand, it was allowed to be withdrawn for being determined through private arbitration and as such, the order that was passed, allowing withdrawal of the issue was not a determination as contemplated within the meaning of Section 2(b) of the Act, and as such not an award.
22. In Cox & Kings (Agents) Limited (supra), the first reference did not terminate the dispute since the reference was dismissed on the ground that no dispute was in existence. Therefore, such an award, which was based on this decision, was not a reference at all, in view of the fact that subsequently a reference was made with regard to the reference, which was found to be in existence. If it were found that there was no dispute in existence, in that event, there would be no decision on dispute; but, when the dispute is subsequently referred and it was found that such dispute was in existence, then the earlier award was not an award.
23. In Workmen of Travancore Rayons Ltd. v. Travancore Rayons Ltd., 1967-I-LLJ-518 (Ker) an adjournment was asked for, but the same was refused on the ground that the workman was not keen to proceed with the reference and, therefore, the reference was rejected. It was held that this decision was not an award since it had not determined the dispute and the dispute was not terminated.
24. Thus, the decisions cited by Mr. Chatterjee do not help him. Therefore, on this ground, Mr. Chatterjee cannot sustain his petition on merit.
It is a settlement or award:
25. Admittedly, it is not a settlement. A settlement is distinguished from an award. When an award comes in the process of an industrial dispute before the Tribunal or the arbitrator. Whereas a settlement may be a settlement in course of a conciliation proceeding or a private treaty between the parties outside a conciliation. Section 18 spells out the binding force of a settlement. Under Section 18(3), a settlement arrived at in course of a conciliation proceeding is binding on all whereas the settlement otherwise than in course of a conciliation proceeding under Section 18(1) is binding between the parties. But when a settlement is claimed on the basis of the order passed by the Tribunal, then it needs to be examined whether the order is an award. If it is not an award, then it might at best be a settlement between the parties and may be a subject matter of a dispute.
Whether there was any industrial dispute:
26. A question is raised by Mr. Chatterjee that there was no industrial dispute in between the parties, as defined in Section 2(k) in the ID Act. According to him, industrial dispute must be related between the parties, employers and employees, employers and workmen and workmen and workmen. In the present case, the canteen employees were not the workmen of the employer and as such the question of employment or non-employment or terms of employment or condition of labour of the canteen employees do not form industrial dispute.
27. The Industrial dispute as defined is a dispute between employer and workmen connected with employment or non-employment or terms of employment or conditions of labour. Admittedly, such dispute must be related to an industry. In the present case, it is not in dispute that the employer is an industry. There is no doubt about the employer. The subject matter also satisfies the test of definition in Section 2(k). Inasmuch as, it relates to employment or non-employment or terms of employment or conditions of labour, as the case may be. But the question remains as to whether there was a relationship of employer and employee or workmen between the parties. However, that there was a dispute and difference between the parties cannot be ruled out.
Relationship : Workmen and employer: Can it be gone into? :
28. In order to contend that the workmen were not workmen of the employer, Mr. Chatterjee had attempted to point out that the canteen was not part of the establishment. As such the canteen workers cannot be treated to be workmen within the meaning of Section 2(s). According to him, the Tribunal had never examined the said aspect and determined the status of the workmen. In support he had relied on various decisions to show that unless it is proved that the canteen is a part of the establishment, there cannot be any relationship of employer and workmen between the employer and the canteen workers. He pointed out from the materials produced before this Court that the canteen was not part of the establishment and as such the canteen workers cannot be treated to be workmen.
29. Admittedly, these materials were not produced before the Tribunal and no question or objection was ever raised to the effect that the workmen were not workmen of the employer, before the Tribunal.
30. The decisions, which govern the field with regard to the canteen workers, are well established. Unless it is shown that the canteen is a part of the establishment, the canteen workers cannot become workmen of the principal employer. Various tests have been laid down in those decisions as to whether a canteen is a part of the establishment or not. It is not necessary to go into those questions within the scope and ambit of this writ petition. Inasmuch as, neither in the pleadings, nor in the proceedings before the Tribunal, this question was ever raised. When a dispute is pending before the Tribunal, the parties do exchange their pleadings. From the pleadings the contentions and counter contentions can be found out. It narrows down the dispute or the difference between the parties. The Tribunal is not called upon to decide a question, which is not in dispute or in respect whereof there is no difference. At no point of time any dispute was raised with regard to the status of the workmen on the ground, which is now being sought to be raised before this Court. Admittedly, a ground, which was not determined by the Tribunal, cannot be raised for the first time before the High Court when an award is challenged under Article 226. The jurisdiction under Article 226 in relation to an award when challenged is that of a revisional Court. As a revisional Court in relation to an award of a Tribunal, the High Court has to confine itself within the records of the industrial dispute before the Tribunal, in which the award was passed and is the subject matter of challenge before the High Court. High Court has not jurisdiction to travel beyond the records.
31. A point not raised before the Tribunal cannot be allowed to be raised even though the materials are placed before the High Court, which is otherwise not entitled to enter into determination of such disputed question of facts. Inasmuch as, all these questions raised having not been admitted by Mr. Sengupta are disputed question of facts. In order to ascertain whether the workmen were workmen within the meaning of Section 2(s) or not, it is necessary to determine whether the canteen is a part of the establishment. In order to determine this question, Court has to determine, on evidence, various factors. This Court cannot undertake such an exercise when it is raised for the first time before this Court.
32. Mr. Chatterjee had contended that the Tribunal ought to have entered into this question before passing the award. It is also a question, which relates to the dispute. Such a contention, in my view, is wholly unfounded. Inasmuch as, it is for the parties to be at variance or difference or in dispute. The Tribunal has no jurisdiction to find out or discover a dispute or difference, which is not raised by the parties. The Tribunal cannot suo motu raise any dispute unless raised by either of the parties. The Tribunal has every jurisdiction to examine the legal aspect. It has jurisdiction to examine whether it can assume jurisdiction or not. It can also determine as to whether the case comes within the scope and ambit of an industrial dispute. These are all questions pertaining to the assumption of jurisdiction by the Tribunal. But when such legal aspect is based on certain facts and the foundation thereof could be had only upon determining the basic facts, then the Tribunal cannot raise a question, unless the parties to the dispute raise such disputed question of facts. However, the case could have been different if on the face of it or the facts disclosed the workmen could not be treated to be workmen, could be gone into by Tribunal, in a case where there would be no scope of disputing the facts or admitted facts, the workmen would not come within the definition of Section 2(s).
33. Until and unless the dispute is raised that the canteen employees are not the workmen of the Bank, the Tribunal cannot go into the said question. It was so held in the case of Workmen of Hindustan Lever Limited and Ors. v. Management of Hindustan Lever Limited, :
“Further, the Tribunal is in error to take a view …….. that even if there is a binding agreement between the parties and, therefore, the employer is estopped 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. 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 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 …….. 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. 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 was not to be pressed and if pressed should be negative 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 clothe 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……….”
34. In the present case, such a dispute having not been raised, it is to be presumed that the employer had admitted that the canteen was part of the establishment. Therefore, it was not necessary for the Tribunal to go into such questions. As such no amount of submission made before this Court, can help Mr. Chatterjee in order to assail the award on these grounds.
Presumption of relationship:
35. Until and unless there are certain materials before the Court to determine that there was no relationship, the Court has to presume a relationship. This question was never raised before the Tribunal. So even if they are shown as canteen employees and that the canteen is not part of the establishment, therefore, they cannot be deemed to be the employees of the Bank, this question cannot be gone into, unless it was raised at the initial stage. The decisions that were cited by Mr. Chatterjee, viz., M.M. R. Khan v. Union of India, ; Parimal Chandra Raha v. Life Insurance Corporation of India and Ors., AIR 1995 SC 1666 : 1995 Supp (2) SCC 611 : 1995-II-LLJ-339; Management of Reserve Bank of India v. Their Workmen, ; Indian Petrochemicals Corporation Limited v. Shramik Sena and Ors., ; Indian Overseas Bank v. IOB Staff Canteen Workers’ Union, and State Bank of India v. SBI Canteen Employees’ Union (Bengal Circle), ; have no manner of application since in all these cases the question was decided on the basis of materials placed before the Court. Simply because some people are canteen workers it cannot be said that they are not employees, of the bank. In any event, in the present case, it was held that the names of these canteen workers would be borne in the panel, from which they would be accommodated in the vacancies that may be arising in terms of the compromise. Therefore, there is a presumption that they were workers. But, the bank could have come with an objection to it. As such, it cannot be said that there was no dispute, and the Labour Court could not have assumed any jurisdiction.
36. On the other hand, in Reckitt & Colman of India Limited v. Fifth Industrial Tribunal and Ors., 1980 Lab I.C. 92 (Cal); this Court had held, in a Division Bench, that when a reference is made under Section 10, there is a presumption of existence of an industrial dispute. That presumption is no doubt a rebuttable one. But for the purpose of rebutting the same, it requires evidence to be adduced by the employer. In the present ease, the employer had never attempted to rebut the said presumption. As such, now, it cannot be raised before this Court after the award was passed. The award can, now, not be questioned on the ground that there was no relationship between the parties and that the reference was invalid. Unless there is some material placed before it and it was objected to, the Tribunal cannot enter into the said question.
Whether the Bank is an aggrieved party to maintain the writ petition:
37. Mr. Sengupta had pointed out to the correspondence which were made after the award was passed viz. Annexure “H” series to writ petition at pages 77-80, in order to show that after the award the Bank was not an aggrieved party, since it had been requesting the Central Government to approve the empanelment in terms of the award so passed particularly on the basis of a letter dated June 27, 1996, (Annexure “E” to the writ petition), addressed to the Central Government even before the award was passed. It appears that in terms of the letter dated June 27, 1996 of the Bank, the award was passed. That apart, Mr. Sengupta had also relied on certain other correspondence contained in Annexure “B” series to the writ petition, where the bank had been indicating that they were agreeing to a draft comprehensive agreement, as well as with the terms of settlement in terms of such agreement, for being placed before the Tribunal, for passing the award in terms thereof. This was done as far back as in November, 1995. Thus, it appears that the bank had always been proposing and was ready to accept the terms, even before the award was passed. As such, it cannot now take a different stand.
38. It seems that this petition was made after the Central Government addressed the letter dated May 24, 1999, contained in Annexure “J”. By reason of a direction by the Central Government, now the bank assumes to be aggrieved. Until this letter was issued, the bank never felt aggrieved. As rightly contended by Mr. Sengupta, can it be said that a person can be aggrieved only at the dictates of others? Until and unless the bank itself had found it to be aggrieved, it cannot be said that it was aggrieved. If it is dictated by someone else, the same will not make it aggrieved. A writ petition can be maintained by a person aggrieved. In this case, the bank had accepted the award and had been agreeing to implement the same. It had undertaken follow up actions. Thus, it was not an aggrieved person. As such, it cannot maintain the writ petition.
Limit of Supervisory Jurisdiction : Writ of Cer-tiorari :
39. Mr. Sengupta had also contended that the jurisdiction of this Court is limited to the extent as has been held in the decision of the case of P. Kasilingam v. P.S.G. College of Technology . In the said decision it was held as follows:
“10. ……..The supervision of the High Court exercised through writs of certiorari goes on two points. One is the area of jurisdiction and the qualifications and conditions of the exercise, the other is the observance of law in the course of its exercise. A writ of certiorari will not issue as a cloak of an appeal in disguise. It does not lie to bring up an order or decision for rehearing. Such writs are obviously intended to enable the High Court to issue them in grave cases where the subordinate Tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record and such act, omission, error or excess has resulted in manifest injustice.”.
40. Applying the above ratio, in the present context, this Court cannot interfere with the award assailed herein, in view of the facts and circumstances of the case and the reasons discussed.
Conclusion:
41. In the facts and circumstances of the case, therefore, the award passed on compromise, is an award. It is no more open to be challenged or reopened on any of the grounds raised by Mr. Chatterjee. In its supervisory jurisdiction, this Court does not sit on appeal. Within the limited scope, in my view, in the present case, the writ of certiorari cannot be invoked. The question raised is no more sustainable.
Order:
42. For all the reasons, I am unable to accept the contention of Mr. Chatterjee. This writ petition, therefore, fails and is, accordingly, dismissed. No costs.
43. All parties concerned are to act on a xerox signed copy of the operative part to this Dictated Order on the usual undertaking.