This article has been written by Aarushi Mittal, a student of National Law University Odisha, Cuttack. This article delves into the doctrine of waiver, exploring its evolution, features, and all the important landmark judgements and decisions concerning it in India.

It has been published by Rachit Garg.

Table of Contents

Introduction 

Citizens of a country are entitled to a number of rights, including statutory rights, fundamental rights, contractual rights, and legal rights. These rights are extended to all individuals equally, without any discrimination or bias. They are extremely important for the citizens of a country, and it is the duty of the State to recognise and protect these rights.

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The Indian Constitution provides for the doctrine of waiver, which deals with the exercise of these rights. The doctrine of waiver is an important constitutional principle that allows a person to voluntarily give up or surrender their rights under certain circumstances. It allows or gives an individual the choice to relinquish or waive certain rights that they are entitled to. This article takes a look at the doctrine of waiver, shedding light on its features and evolution. It also covers the important judgments in India relating to the doctrine and examples of situations where the same has been exercised by citizens.

What is the doctrine of waiver

A waiver is the act of voluntarily surrendering, relinquishing, or abandoning a right or claim. It is an intentional and informed decision made by an individual. The doctrine of waiver is the power of a person to willingly (by one’s own choice), give up or forgo some rights or certain privileges that are available to them. In India, this doctrine allows for the waiver of those rights and privileges that are guaranteed by the Constitution of India. 

To put it simply, the doctrine of waiver is the right of a citizen to give up certain rights. By doing so, these individuals free the other party from the responsibility of not violating their rights. The basic premise of this doctrine is that a person has the independence and right to make their own choices, and this choice could extend to abandoning their own rights consciously and willingly. Under certain circumstances, such as business dealings, contracts, disputes, property sales, legal proceedings, etc., an individual can choose to voluntarily waive the rights guaranteed to them under law.

This doctrine, however, does not extend to the fundamental rights of an individual. These fundamental rights, namely, the Right to Equality, the right to Freedom, the right against Exploitation, the right to Freedom of Religion, Cultural and Educational rights, and the right to Constitutional remedies, are essential as they protect the liberty and freedom of an individual and cannot be waived.

Additionally, the doctrine of waiver encourages flexibility in legal proceedings by making sure that the parties are not bound to strictly stick to their rights. It recognises the fact that in certain cases, it is more favourable to the person to abandon their rights. There are, however, limitations and conditions to the doctrine of waiver. The fundamental rights of a person must be waived willfully, with full knowledge and understanding of the outcome of such a decision. A person can not be forced or coerced into surrendering their rights. Waiving a right means that such a right cannot be claimed by that individual, and they cannot approach the court to challenge its violation. To put it simply, the individual can no longer enjoy any of the benefits under the said right.

Throughout the course of this article, we will take a deeper look into the doctrine of waiver in India by examining its nature, features, and significance within the legal framework of our country.

Features of the doctrine of waiver

The following are the essential features of the doctrine of waiver:

Knowledge

It is absolutely essential for the individual waiving or giving up their rights to know about the basic inherent features of this doctrine as well as the outcome of exercising this waiver. It is not necessary for the person to have absolute and complete knowledge of the exact purview of the waiver but they must have at least a basic and broad understanding of the same.

Intention

Intention is a vital component of the doctrine of waiver. Without the presence of intention, the rights of an individual cannot be waived. This intention may be express or implied. In an express waiver of rights, the intention is inferred from the statement of waiver or through writing, while in an implied waiver, the intention is inferred from the act or conduct of the individual wanting to waive off their rights.

Voluntary

A person must waive off their rights wilfully, i.e., entirely by choice. There should be no coercion or force involved in the waiver.

Existence 

It is only when a certain right or privilege exists, that it can be waived.

Relevance

The doctrine of waiver is an extremely important right, and its non-applicability to certain rights of a citizen (constitutional rights) makes it exceedingly relevant. Due to this limitation, it successfully restricts the authority of the legislature. If the doctrine was applicable in India, a person could give up their rights in exchange for some benefits offered by the State.

The doctrine of waiver is a very significant legal principle. In India, the various court decisions and judgements make sure that their applicability and constitutionality are clear to the people.

Limitations of the doctrine of waiver

As discussed above, the doctrine of waiver is an important legal principle. Since the doctrine involves relinquishing the rights of an individual, it is restricted by certain conditions or limitations to prevent misuse and protect the interests of citizens. Firstly, it is necessary that the waiver be exercised wilfully or voluntarily. There should be no coercion, force, duress, undue influence, etc. involved in the decision-making. If the decision is not made voluntarily, the waiver will be invalid. Secondly, the individual must have complete knowledge of the consequences of the waiver. Finally, the doctrine of waiver does not extend to fundamental rights. To put it simply, an individual cannot give up or waive the fundamental rights guaranteed to them under Part III of the Constitution.

Evolution of the doctrine of waiver in India

The doctrine of waiver has existed in India since time immemorial. It is considered to have been prevalent even before the judiciary was instituted in independent India. Before independence (in 1945), the Bombay High Court, in the case of Phoenix Mills Ltd. v. M.H. Dinshaw, ruled that India’s doctrine of waiver was different from the doctrine of waiver found under English law. It further stated that this doctrine could be found in Section 63 of the Indian Contract Act, 1872.

Since then, there has been considerable progress in the interpretation of the doctrine of waiver through many court judgments. This has extended way beyond the limits of contractual rights. In India, an individual can give up the rights given to them by statutes or the rights arising out of contracts. However, they cannot waive or forgo any rights guaranteed by the Constitution, i.e., constitutional rights.

In the case of Fundamental Rights, it is a widely accepted concept that these are a part of the Constitution, not only for the individual’s benefit but also because they are also an element of public policy (as held in Behram Khurshed Pesikaka v. the State of Bombay (1954)). It was further held that such rights, which are part of public policy, cannot be relinquished. The Constitution ensures that the State protects these rights. It is important to note that although the concept of Fundamental Rights was borrowed from the United States of America, where these rights can be waived, the same is not followed in India. The same was established in the case of Bashehar Nath v. Income Tax Commissioner (1959). It decided on the applicability of the doctrine of waiver to fundamental rights and ruled that fundamental rights in India could not be waived. These important judgements are discussed below in more detail.

Landmark judgments relating to the doctrine of waiver

Phoenix Mills Ltd. v. M.H. Dinshaw and Co (1945)

Brief facts of the case

In the case of Phoenix Mills Ltd. v. M.H. Dinshaw and Co. (1945), the parties had entered into a contract wherein the defendants were to supply certain dyeing and bleaching supplies at a fixed rate to the plaintiff, subject to certain terms and conditions. The agreement was a CIF (Cost, Insurance and Freight) contract. The plaintiffs paid one-third of the amount to the defendants before the goods were delivered. They wrote multiple letters to the defendant, inquiring about the arrival of the goods. The defendants responded, asking for the remaining amount, after which they would transfer the bill of lading and enclose with the letter a bill (containing a description of the goods and details of the total amount, balance, and amount paid). However, the plaintiffs pointed out that, as per the terms of the contract, the balance amount was to be paid only once the bank confirmed receipt of the shipping documents. Since the defendants assured them of the arrival of the shipping documents, they went on to pay the remaining amount. However, the only document given to them following the transfer of the balance was the bill of lading. The plaintiffs filed a suit for the return of the entire amount paid by them as the defendants failed to perform their obligations under the contract. They contended that the defendants only gave them the bill of lading and failed to deliver the other documents, such as the original invoice and the proper insurance policy. However, the defendants argued that the plaintiffs had waived their right to the original invoice and policy of insurance when they paid the remaining amount.

Issues involved

The main issue was whether the rights of the plaintiffs had been waived since they had accepted the bill, which included a certificate of insurance, and proceeded to pay the remaining amount. It was argued by the defendants that since the plaintiffs had accepted the certificate of insurance as a proper document under the contract, they were not entitled to claim that the defendants did not fulfil their obligations. The court also looked into whether the bill sent by the defendants constituted a proper invoice under a CIF contract and asked questions regarding the policy of insurance.

Judgement and observations made by the court

This was one of the earliest cases in India where the courts ruled on the doctrine of waiver. The Bombay High Court held that the laws concerning the doctrine of waiver in India were not similar to those in England. The court stated that the doctrine of waiver laws in England was contractual in nature and was either supported by a seal or involved some consideration. In India, however, the doctrine of waiver could be found in Section 63 of the Indian Contract Act, 1872, and had more to do with waiving entirely or partially the performance of a contract or allowing the acceptance of any other satisfaction (except the promise). The court ruled that there was no waiver under Section 63 as the mere omission or negligence on the part of the plaintiff could not be inferred as him giving up such a valuable and important right.

Behram Khurshed Pesikaka v. The State of Bombay (1954)

Brief facts of the case

The case of Behram Khurshed Pesikaka v. The State of Bombay (1954), was a special leave petition that appealed the decision of the High Court of Judicature in Bombay. The appellant, who was the Regional Transport Officer in Bombay, was driving towards a bus stand when his vehicle knocked down three people. The appellant was arrested by the police. He was then taken to the hospital to check whether he had been consuming liquor. Although his breath smelled like alcohol, his speech was coherent, he could walk in a straight line, and his pupils were semi-dilated and reacting to light. The doctor concluded that he wasn’t under the influence of alcohol but had consumed it in some form or another. The appellant was tried before the Presidency Magistrate for causing grievous harm to three individuals by his rash and negligent acts (Section 338 of the Indian Penal Code) and under Section 66(b) of the Bombay Prohibition Act. During the trial, he stated that he had not consumed liquor but had taken the medicine prescribed to him, which contained a small percentage of alcohol. The Presidency Magistrate acquitted him of both offences. The respondents filed two appeals before the High Court (HC) against both of these cases. The HC confirmed the acquittal under Section 338 but reversed the order under Section 66(b). The same was appealed before the Supreme Court.

Issues involved 

The offence under Section 66(b) with which the appellant was charged was alleged to have occurred four days after the judgement in the case State of Bombay v. F.N. Balsara(1951). The Balsara case challenged the constitutionality of certain provisions of the Bombay Prohibition Act. This Act came into force in 1949 and was found to impose unreasonable restrictions on the rights guaranteed under Article 19(1)(f) of the Constitution. The court, therefore, declared certain provisions of the Act invalid. While delivering the judgement in the case of Behram Khurshed, neither the Presidency Magistrate nor the High Court bench mentioned the Balsara judgement. The Supreme Court, on hearing the appeal in this case, made its decision after accepting the position of the court in the Balsara case.

Judgement and observations by the court

It was in this case that the Supreme Court held that the concept of doctrine of waiver that was borrowed from the American Constitution could not be replicated blindly in the Indian Constitution, i.e., without proper thought. The bench quashed the conviction of the appellant. The court believed that the fundamental rights mentioned in Part III of the Constitution are an essential part of the Constitution since India is a sovereign democratic republic. It was also observed by the court that these rights were based on fundamental principles specified in the Preamble. Further, apart from guaranteeing privileges and rights to an individual, since these rights played an important role in public policy, the Court reasoned that they could not be waived. Thus, the Supreme Court ruled that the doctrine of waiver did not apply to all those laws that have been established on the basis of constitutional policy.

Manak Lal v. Dr. Prem Chand (1957)

Brief facts of the case

In the case of Manak Lal v. Dr. Prem Chand (1957), the appellant, Manak Lal, was an advocate practising at the Rajasthan High Court. A complaint was filed against him under Section 13 of The Legal Practitioners Act (1879) by Dr. Prem Chand Singhvi. It was alleged that he was guilty of professional misconduct and that appropriate action be taken against him. An enquiry was held by a Tribunal nominated by the Chief Justice of the High Court of Rajasthan. The Tribunal found the appellant “guilty” of the charges. The High Court, on receiving the findings of the tribunal, ruled that the appellant be removed from practice. On this High Court order, the appellant filed an appeal before the Supreme Court.

Issues involved 

It was contended that the Tribunal appointed by the learned Chief Justice of the Rajasthan High Court was improperly constituted, and therefore the findings of the Tribunal, the report submitted, and the order of the court were all invalid. Another issue pertaining to this case was whether the appellant could take this case for the first time before the High Court. To put it simply, had he not waived his right to object in this court since he had failed to object before the Tribunal.

Judgement and observations by the court

This case established what constitutes a waiver. The court observed that the failure of a party to object (once it is established that the party was aware of their right to protest), amounts to a waiver of said right. However, the court agreed that a waiver could not be inferred in every case where the party failed to take up their objections.

Basheshar Nath v. Income Tax Commissioner (1959)

Brief facts of the case 

In the case of Basheshar Nath v. Income Tax Commissioner (1959), the appellant had filed a special leave petition challenging the validity of the agreement made by him under Section 8A of the Taxation of Income Act. He contended that Section 5(1) of the Taxation of Income Tax Act (on which Section 8A of the same Act had been founded) was declared void by the court and hence his property should be released. However, he was informed by the Commissioner of Income Tax (CIT) that the agreement was in fact valid and he was required to pay the money due by him. The respondents argued that the appellant had waived off his fundamental rights by willingly entering into the agreement, and therefore its validity could not be challenged by him.

Issues involved 

The Supreme Court, in this case, ruled on the constitutional validity of the waiver of fundamental rights. It also looked into whether the settlement made under Section 8A of the Taxation of Income Act was valid. However, this judgement was the landmark decision where the court ruled on whether a fundamental right guaranteed by the Constitution could be waived or not.

Judgement and observations made by the court

The majority decision, in this case, stated that Article 14 of the Constitution seemed to be a direction to the State to ensure equality rather than the right of an individual. Therefore, it was held by the court that no citizen can waive or give up the fundamental rights mentioned under Article 14. 

The Court further held that it was not just Article 14, but this extended to all the fundamental rights granted by the Constitution, and none of them could be waived by an individual. The judges observed that the Indian Constitution did not discriminate between fundamental rights passed in the individual’s interest and those passed for the public’s benefit. It was thus reasoned that there was no basis for us to blindly copy the American laws and its interpretation of the doctrine of waiver.

Justice S.K. Das delivered the dissenting judgement in this case. Since the preambles of the Indian and American Constitutions contained nothing to make the doctrine of waiver applicable to one and not the other, he was of the opinion that fundamental rights could be subject to waiver by an individual. He stated that as the doctrine of waiver applied to constitutional rights in America, there was no reason it shouldn’t apply to the fundamental rights of India. 

Jaswant Singh Mathura Singh and Anr v. Ahmedabad Municipal Corporation and Ors (1991)

Brief facts of the case 

In the case of Jaswant Singh Mathura Singh v. Ahmedabad Municipal Corporation and Ors (1991), the appellant was in possession of a plot. Following the Town Planning Scheme framed by the respondent, the plot was altered and re-constituted. The appellant claimed to have suffered damages as the scheme had the effect of terminating his possession and also adversely affecting his business. He filed a suit in the Trial Court challenging the action as the respondent (Municipal corporation) had not sent him a notice as required by the law (Rule 21(3) of the Bombay Town Planning Rules 1955). The Trial Court issued a permanent injunction, restraining the corporation from altering the plot until due process was followed. The corporation filed an appeal in front of the High Court, which set aside the decision of the Trial Court and dismissed the suit. The tenant then approached the Supreme Court, which allowed the appeal and decided to hear the case.

Issues involved 

The court looked into whether compliance with sub-rule 21(3) was mandatory or not. Since sub-rule 21(3) was just an additional advantage, the main question before the court was whether it was dispensable and could be waived.

Judgement and observations made by the court

The Supreme Court of India held that an individual has the right to waive an advantage or a privilege that is guaranteed to them by law that might benefit them. The Court observed that this waiver could be exercised by the issuance of a notice to a party, and their non-response to the same. For instance, in the case of a dispute between the tenant and owner, when a notice is issued by the court and both parties (tenant and owner) fail to reply, it would amount to a waiver. The parties would not be entitled to turn around at a later stage.

Waiver of contractual rights in India

Section 63 of The Indian Contract Act, 1872 covers the waiver of an individual’s (specifically the promisee’s) contractual rights. Even though it does not explicitly mention the term waiver, the same has been interpreted by the courts in multiple cases. In certain scenarios, such as when a contract is defaulted, the affected party may voluntarily (or willingly) give up the right or privilege they were entitled to. Under this Section, parties to a contract are statutorily allowed to abandon any contractual obligations or performance arising from the same before or after the breach of the contract. 

As per the provisions concerning waiver of contractual rights, the promisee can:

  1. forgo the complete performance of the contract, which results in the promisor having no responsibility relating to the contract, or,
  2. forgo only a specific part of the contract. In such a case, the promisor is responsible to the promisee for those parts of the contract that are not waived, or, 
  3. grant an extension in the time for performing the obligations under the contract. In such a case, the original decided time period is considered invalid. However, this extension must be given voluntarily and be mutually consented to by the parties, or, 
  4. accept a reduced performance from the promisor, by waiving off the original obligation required under the contract. This reduced amount or performance can also be made by a third party on behalf of the promisor to the promisee. (Illustrations (b) and (c) in Section 63)

An important aspect of waiver under contracts is that it neither leads to nor requires any amendment to the original contract, nor is any consideration involved or needed to attain the waiver (as held in the case of Jagad Bandhu Chatterjee v. Nilima Rani and Ors 1969). Further, such a waiver can be revoked by giving fair notice of such withdrawal. As per the courts, such notice must be reasonable and within a justifiable time period; otherwise, the waiver cannot be revoked.

Waiver of statutory rights in India

Criminal litigation

The doctrine of waiver in India also includes the abandoning of those rights and privileges that are granted to citizens by statutes or legislation. However, there exists an exception to the same, which has been established by multiple court judgements and their interpretations. In the case of All India Power Engineer Federation v. Sasan Power (2016), the court held that an individual cannot waive statutory rights relating to public policy or that have been passed in the interest of the public. The same was held in a number of older cases, such as Lachoo Mal v. Radhey Shyam (1971) and Krishna Bahadur v. Purna Theatre (2004)  This rule is based on the legal maxim quilibet potest renuntiare juri pro se introducto, which means that all the conditions laid down by a statute are dispensable only if the statutory conditions were not added to the legislature in the public interest. The same was referred to by the Supreme Court in Murlidhar Agarwal and Anr v. State of U.P. and Ors (1974). 

Furthermore, in the case of Shalimar Tar Products Ltd. v. H.C. Sharma and Ors (1987), the Supreme Court held that the waiver of an individual’s rights is decided based on the facts and circumstances of the case. It may vary depending on the nature and circumstances surrounding a case. Essentially, the following conditions must be met if a statutory right is to be waived (as held in the Lachoo Mal case):

  1. The individual or party must directly benefit from the right that is subject to the waiver. For example, statutes on gratuity (Payment of Gratuity Act, 1972), maternity benefits (The Maternity Benefit Act, 1961) etc. are some such rights that benefit the individual directly.
  2. The right in question should not relate to any matter of public policy or public interest. This can be determined by examining the legislative intent behind enacting a statute. 

Waiver of fundamental rights in India 

As mentioned earlier, India borrowed the principle of waiver from America. However, there is a huge difference in its application in both countries. Fundamental rights are also known as the Magna Carta of India. Under Indian law, these rights cannot be waived, as was held by the five-judge bench of the Supreme Court in the landmark Basheshar Nath case. The courts have repeatedly stated that the fundamental rights found in Part III of the Constitution benefit not only the individual but are also an integral part of public policy and hence cannot be subject to the doctrine of waiver. Such rights exist for the welfare and good of society and cannot be abandoned. On the other hand, the fundamental rights in the American Constitution are intended to benefit individuals’ rights in particular as opposed to society at large. The case also established that the basis for granting a waiver should not be the source of the right, i.e., whether it is a statutory, constitutional, or contractual right. Instead, it was held that the basis of deciding should be in whose interest was the right accorded (public or the individual).

In the case of Trilokchand Motichand and Ors v. H.B. Munshi and Anr (1968), the court decided on the question of whether a person could lose his fundamental rights by his conduct, particularly a delay. Here, the petitioner filed the case after ten years, which was then dismissed on the grounds of delay. However, the bench disagreed on what the reasonable time period to dismiss a case would be. It was held that since the subject in question was the fundamental right (Article 32) of an individual guaranteed by the Constitution, the matter was to be dealt with sensitivity and care. The bench decided that such a time period should be determined on a case to case basis after looking into the facts and circumstances specific to that situation.

Waiver of the right to object under arbitration

Parties in arbitration have to meet certain requirements and comply with particular provisions of the arbitration agreement. In the event that a party fails to do so, the other party has the right to object within a specific time period without any delay. However, if they voluntarily choose not to and continue with the proceedings, they are considered to have waived their right to object. This waiver of the right to object is laid out in Section 4 of The Arbitration and Conciliation Act (1996). Here, the mere silence of the party amounts to a waiver of their rights.

This concept is based on the principle of good faith. It requires that as soon as the party learns about non-compliance, they must object without any unreasonable delay. This also prevents multiple interruptions and objections at different stages in the arbitration proceedings. If the objection is not raised at an appropriate time, it will not be considered at a later stage. However, a party objecting after a delay must provide a reasonable justification for the same (as held in Narayan Prasad Lohia v. Nilkunj Kumar Lohia and Ors (2002)). 

Examples of waivers in real life

Many sports persons and athletes sign waivers before they can play for the team. Since their profession involves high risks and injuries, their employers provide them with waivers to sign off on. These waivers are a kind of exempt from liability form that states that a person chooses out of their own free will to engage in a potentially dangerous or risky activity, and that any accident or harm suffered by them in the course of the same activity will not be the employer’s or management’s responsibility (as the case might be). Similar waivers are signed by people wishing to engage in skydiving, scuba diving, parasailing, skiing, surfing, etc. Even parents sending their children on school trips or summer camps sign waivers.

Similarly, when a person is arrested, under Article 20(3) of the Constitution, they have the right to remain silent (they cannot be forced to be a witness against themselves). However, if a person voluntarily chooses to speak and incriminate themselves, they have waived their right against self-incrimination. 

Difference between estoppel and a waiver

Both a waiver and estoppel prevent an individual from challenging the constitutionality of a law. However, there are several important differences between the two. A waiver is the voluntary abandonment or giving up of a right by an individual. On the other hand, an estoppel is a barrier or hindrance to a person, preventing them from going back or denying a statement previously made in court. A waiver can be a cause of action used to claim damages, whereas an estoppel is not a cause of action, but assists in carrying out a cause of action. It is used as a defence (as evidence) in court. The courts have laid out the differences between estoppels and waivers in the below-mentioned cases. 

Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants’ Association and ors (1987)

Brief facts of the case

In the case of Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants’ Association and Ors (1987), the Municipal Corporation published a draft Development plan that reserved the land in a dispute for a recreation ground. The plan was finalised and approved by the government. There was no action taken to acquire the land, so the trustees of the land served a notice to the Commissioner to either acquire the land or release it from acquisition. The government issued a notification for the acquisition of the land, however, the same was quashed by the High Court since the Corporation had not followed due process of law. They had not made the application for the acquisition of the land within the stipulated time period (six months) from the date of the purchase notice being served.

Issues involved 

The court looked into whether the respondents had waived their right to challenge the acquisition proceedings since there was an unreasonable delay on their part. However, the court found that there was no such waiver or forgoing of rights by the respondents.

Judgement and observations made by the court

The Supreme Court held that the essence of waiver is estoppel, and where there is no estoppel, there is no waiver. It was further observed that both waiver and estoppel depended on the facts and circumstances surrounding the case.

Olga Tellis and Ors v. Bombay Municipal Corporation and Ors (1985)

Brief facts of the case

In the case of Olga Tellis and Ors v. Bombay Municipal Corporation and Ors (1985), the petitioners were the slum dwellers in Bombay. They lived on the sidewalk and footpaths near their place of work to save money and time. The petition was in the nature of a public interest litigation challenging the forceful eviction of the slum dwellers and the demolition of the pavement. The petitioners claimed it to be violative of the fundamental rights prescribed under Articles 14, 19 and 21 of the Constitution and that the court must direct the respondents to stop the demolition and restore the possession of the sites to its original occupants.

Issues involved 

It was found that the eviction of the slum dwellers would lead to the deprivation of their livelihood thereby violating Article 21 of the Constitution. However, as per the procedure prescribed under Section 314 of the Bombay Municipal Corporation Act, the removal of encroachments on pavements, footpaths, or any other place meant for public purposes is not unreasonable. The court, despite upholding the validity of Section 314,  gave the pavement dwellers alternate pitches at some other convenient place which was deemed reasonable by the government but of similar distance to the previous dwelling.

Judgement and observations made by the court

It established that there could be no estoppel against the fundamental rights laid down in the Constitution. Since the Constitution is the supreme law of the land and protects the rights of the public it could not be subject to the doctrine of estoppel. It further held that the appeal for estoppel was closely related to the plea for a waiver.

Krishna Bahadur v. M/s Purna Theatre and Ors (2004)

Brief facts of the case

In the case of Krishna Bahadur v. M/s Purna Theatre and Ors (2004), the workman was appointed as the messenger in the Cinema house (respondent). Disciplinary proceedings were initiated against him, and he was found to be ‘guilty’. Subsequently, he was removed from services. The Tribunal hearing his case, set aside the dismissal and ordered full back wages and compensation. He rejoined the services but was not paid the back wages. Furthermore, within one month of his rejoining, he was retrenched from services. A suit was filed against the respondent on grounds of insufficient compensation and illegal retrenchment. The tribunal, after granting him additional compensation, deemed his retrenchment as illegal and directed that he continue in service with all benefits. The respondent filed a writ petition before the Calcutta High Court which was dismissed. The respondent then proceeded to file an appeal before the Supreme Court.

Issues involved 

The court looked into whether the act of the workman accepting the compensation in addition to the notice of retrenchment without any objection amounted to a waiver. The court observed that since the employer bonafidely paid the compensation along with the notice of retrenchment which was accepted by the workmen, the workman had waived his rights to challenge the retrenchment.  Additionally, a major part of the compensation was paid and went unopposed until it was objected to before the tribunal. 

Judgement and observations made by the court

The Supreme Court of India held that although the doctrines of waiver and estoppel were similar in principle, they differed on the basis of cause of action. The court observed that estoppel was not a cause of action but, in fact, a rule of evidence. On the other hand, a waiver may constitute a cause of action. Additionally, it was held that the statutory rights of a person can be waived subject to the condition that there is no public interest involved.

Conclusion

According to the courts, a waiver has been established to be the intentional abandonment of a right, either express or implied. An individual possesses the right to abandon any right, statutory or contractual, granted to him or her. However, the fundamental rights of a person are not subject to this doctrine. There are also limitations on the waiver of contractual and statutory rights, as discussed in the article. In this way, the doctrine of waiver manages to check the power of the individual. It protects the interests of both the individual and society as a whole. Through the various judgements and judicial interpretations of the doctrine of waiver, the courts have struck a balance between social control and personal liberty. 

Frequently Asked Questions (FAQs)

What are the different kinds of waivers?

Some of the different types of waivers are mentioned below:

  1. Liability waivers
  2. Premium waivers
  3. Loan waivers
  4. Subrogation waivers
  5. Lien waivers

Can a waiver be used to enforce an illegality?

No, a waiver cannot be used to enforce an illegality, as was held in the case of Waman Shriniwas Kini v. Ratilal Bhagwandas and Co (1959). In this case, a plea of waiver was taken for the first time in court arguments. The court found that such a plea could not be raised because giving effect to it would result in the enforcement of an illegal agreement.

References

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