1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. WRIT PETITION NO.2426 OF 2007 B. V. K. Anchan ..Petitioner. Vs. Tata Power Company Ltd. and anr. ..Respondents. .... Mr. N.M. Ganguli for the Petitioner. Mrs. Mitra Das i/b V.G. Kunder and Ms. Darshana Sawant for Respondent No.1. .... CORAM: DR. D.Y. CHANDRACHUD, J. 7th March, 2008. P.C. : 1. The Petitioner was employed as a supervisor – Welding at the Trombay Thermal Power Station of the First Respondent. The Petitioner retired on 31st May, 1995. During the course of his employment the Petitioner was allotted service accommodation at Trombay. On 8th December, 1994 the employer had addressed a letter to the Petitioner calling upon him to vacate the service quarters. On 5th June, 1995 the employer had informed the Petitioner that his dues could be collected from the Accounts Department upon handing over peaceful and vacant possession of the service accommodation. The admitted position is that the 2 Petitioner did not vacate the service accommodation for over seven years. The Petitioner instituted a declaratory suit before the Small Causes Court claiming tenancy. The management instituted proceedings under Section 630 of the Companies Act. The Petitioner contested the order of the Metropolitan Magistrate. Before this Court the management had put up a package deal as a proposal for an amicable settlement which was not accepted by the Petitioner. After the order of this Court, the Petitioner carried the matter in appeal to the Supreme Court. The Petitioner vacated the service accommodation some time in June or July 2002. The Petitioner moved an application under Section 33-C(2) of the Industrial Disputes Act, 1947 for the realization of his terminal benefits. It is an admitted position that during the course of the hearing before the Labour Court the Petitioner had together with his application dated 18th October, 2002 placed on record a chart showing the “dues and recoveries”. That included the Petitioner's claim in the amount of Rs.11,67,825/- on account of terminal dues and recoveries in the amount of Rs.7,84,312/- which were to be effected by the employer. The recoveries to be effected by the employer inter alia consisted of an amount computed at the rate of Rs.9,000/- per month for a period of 84 months during the course 3 of which the Petitioner had unauthorizedly retained possession of the service accommodation. The chart of dues and recoveries respectively was relied upon by the Petitioner himself. This, it is an admitted position before the Court, was the same chart which was tendered before this Court in the proceedings which arose out of the order under Section 630 of the Companies Act, 1956. The Labour Court by its judgment and order dated 12th April, 2007 has allowed the claim of the Petitioner under Section 33-C(2) in the total amount of Rs.8,37,658/- under various heads including superannuation benefits, leave salary, arrears of salary under settlement, Leave travel allowance, health insurance, vehicle allowance and retirement gifts. The Labour Court has, however, permitted the employer to set off an amount of Rs.7,84,312/-. 2. The order of the Labour Court has been questioned by the Petitioner on the ground that while adjudicating into an application under Section 33-C(2) of the Industrial Disputes Act, 1947, it is not open to the Labour Court to determine any question relating to a set off claimed by the employer. The submission cannot be accepted on the basis of a plain and grammatical construction of the provisions of Section 33-C(2). Section 33-C(2) 4 applies to any workman who is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed. In determining the question as to the amount of money due, it would be clearly open to the Labour Court to decide in the course of that computation as to whether any set off can permissibly be allowed to the employer as incidental to computing the amount due. This view also finds support in a judgment of a Division Bench of the Madras High Court in C.N. Krishnan v. Management of Indra Cotton Mills (Private) Ltd. (2007 (3) LLN 448- at para 9 page 450). But, for the purposes of the present proceedings it is not necessary to render a final or conclusive adjudication on this aspect of the matter, because the proceedings will show that the Petitioner had while setting out a computation of the amount due and payable to him accepted the statement of dues and recoveries that was tendered by the management, in the earlier proceedings before this Court. In fact, it was the Petitioner who had relied upon the statement in his application dated 18th October, 2002. During the course of his cross examination, when a suggestion was put to him to the 5 contrary, the Petitioner in fact reiterated that he was entitled to rely on the package deal offered to him by the management which was refused by him before this Court in the earlier proceedings. Having placed reliance on the package deal which was offered by the management, the Petitioner was clearly estopped from rejecting a part thereof, for the package deal had to be read and construed in its entirety. This Court is seized with the exercise of its jurisdiction under Article 226 of the Constitution. This jurisdiction is to serve the ends of justice and the Court would not be inclined to protect a party which by its conduct has rendered itself disentitled to relief. The relevant aspect of the cross examination of the Petitioner which is a part of the record of these proceedings is extremely material and it reads as follows : “It is true that operations of the company are of essential nature. It is true that company has to supply electricity around clock to the Mumbai and around the area closed. It is not correct to say that quarters are generally allocated to the employees engaged in operation and maintenance. Now shown to me is the letter dated 8.12.1994 filed along with list at Exh. U-22. It is issued to me mentioning that I should vacate the quarter 6 months prior to the retirement (referred in cross – examination which is already exhibited as Exh. U-32). It is true that even in letter dated 5-6-1995 at page 5 and 6 of Exh. U-3 it is stated that dues can be collected from the accounts department, after peaceful and vacant possession of Flat 21-B, type 1A. Letter is at Exh. U-34. It is true that though I received letter I did not vacate 6 quarter occupied by me. It is true that I have filed suit against the company contending that I am tenant. I do not remember its next date of hearing. It is true that complaint under section 630 of Companies Act has been filed by the company in Metropolitan Magistrate. I lost that case, hence Metropolitan Magistrate directed me to vacate that quarter. It is true that I did not vacate the quarter and challenge the order of the Metropolitan Magistrate before the superior Court. I lost matter there also and challenged that order before High Court, Mumbai. It is true that in the matter before High Court the company has preferred one package of proposal for amicable settlement forever in entire matters. It is true that I have not accepted that offer of the company. On merit High Court did not grant stay in my favour and High Court directed me to vacate the quarter. It is true that inspite of vacating quarter I preferred appeal before the Supreme Court. It is true that Supreme Court did not allow my application. But it is not true to say that it directed me to vacate the quarter. It is true that after rejecting my appeal by Hon'ble Supreme Court I vacated my quarter, in the month of May or June 2002.” 3. The Petitioner was in occupation of service accommodation. He continued to retain the service accommodation for over seven years after his retirement on 31st May, 1995. The Petitioner took recourse to every available remedy including a declaratory suit claiming tenancy. It was only after he had failed in all these proceedings that eventually the Petitioner had handed over possession in the month of June or July, 2002. There is merit in the contention of the management that as a public 7 utility service it is required to allot service accommodation as an incident of service. The conduct of an employee in retaining service accommodation for seven long years after the date of retirement cannot be condoned. In any event, as already noted above the Petitioner himself having relied upon the package deal which was offered by the management which included the recoveries which were to be made on account of unauthorized detention of the service accommodation, there is no merit in the challenge under Article 226 and the exercise of jurisdiction is not warranted. The Petition stands dismissed. *****